TMI Blog2016 (1) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... rders passed by Commissioner of Income Tax, Jammu and Kashmir and Joint Director of Income Tax, Investigation, Chandigarh as placed in paper book page 16 to 20. In view of the above facts and circumstances enumerated above we find that notice was not at all served upon the assessee and therefore, the assessment itself is bad in law and is therefore quashed. - Decided in favour of assessee. - I.T.A. No. 118(Asr)/2015 - - - Dated:- 7-1-2016 - A. D. Jain (Judicial Member) And T. S. Kapoor (Accountant Member) For the Appellant : Joginder Singh (CA.) For the Respondent : K. V. K. Singh (DR.) ORDER T. S. Kapoor (Accountant Member) This is an appeal filed by assessee against the order of learned CIT(A), Jammu, dated 26.02.2014, for Asst. Year 2005-06. 2. The grounds of appeal taken by assessee are reproduced below. (1) That having to the facts and circumstances of the case the ld. CIT(A), Jammu has erred both in law and on facts of the case as he case. . (2)(a) That having regard to the facts and circumstances of the case, the ld. CIT(A), Jammu has erred in law and facts of the case as the notice u/s 148 was never served on the assessee. (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to paper book page 10 to 11 where a copy of order sheet passed by Assessing Officer was placed. The learned AR submitted that as per order sheet notice u/s 148 was served upon the assessee by affixture. He submitted that on 23.3.2012 itself the Assessing Officer had received approval from JCIT, Range-I for reopening of the case and Assessing Officer on the same date without resorting to other modes of service resorted to service by affixture which is not as per requirements of law. Inviting our attention to section 282 of the Act which provides the manner of service of a notice, the learned AR submitted that the notice has to be served either by post or as if it was the summons under the CPC, 1908. He submitted that in the present case notices were never sent by post and therefore, for service of valid notice the procedure as laid down in CPC in order V, Rule 12 to 20 were to be followed. He submitted that as per Rule 17 the order of affixture can be made only when after using all due and reasonable diligence, the defendant cannot be found at the residence and there is no other agent to accept notice on behalf of defendant. He submitted that this substituted mode of service can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that from the above orders it is clear that the jurisdiction of assessee from 26.10.2007 to 8.6.2012 remained with DCIT, Jammu, whereas the notice u/s 148 was issued by ITO, Ward I(3). He submitted that the said notice was dated 23.3.2012 and on this date the jurisdiction was laying with ACIT, Central Circle, Jammu as the jurisdiction to ITO, I(3), Jammu was transferred vide letter order dated 8.6.2012 only. He submitted that the Assessing Officer mentioned in section 148 means the Assessing Officer vested with the jurisdiction of the assessee as stipulated in the definition u/s 2 (7)(a) by virtue of directions/order passed u/s 120. In view of the above learned AR argued that the Assessing Officer of Ward No. 1(3) had no jurisdiction. In view of the above facts and circumstances the learned AR submitted that the learned CIT(A) has eared in law justifying the service of notice on the plea that notice was served on the appellant by affixture on the last known address in the presence of Inspector. He submitted that the address of the assessee was available with jurisdictional AO of the appellant i.e. Central Circle, Jammu and said address was also available in the PAN record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by affixture and the same is being reproduced as under: 17. Procedure when defendant refused to accept service, o Where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued, wqth a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. Rule 19 provides that where a summon is returned under Rule 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with law. 9. In the present case, the notice was issued and served on the same day. It is not necessary for me to give any finding as to whether the notice server or the Inspector visited the house of the assessee the or not since, in my view, the alleged service of notice was not in accordance with law. Facts of the case do not point out that any effort was made to find out the where about of the assessee. There is also no report to the effect that assessee was not available, despite proper art, at the residence. The original report of the notice server was seen by me in the course of rearing. There is no report of the notice server that assessee could not be found in spite of his due diligence. Further, the alleged affixture of the notice was not in the presence of any witness, which is the requirement of law. There is also no material on the record on the basis of which the Assessing Officer could have reason to believe that; defendant was keeping out of the way for the purposes of avoiding service or that for any other reason, summons could not be served in ordinary way. Further, there is no order passed by the Assessing Officer to the effect: that service b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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