TMI Blog2019 (10) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, the same cannot be held as valid service. Similarly though the AO has stated to have served the notice u/s 142(1) also by affixture, no evidence was brought on record to show that the notices were served by affixture in the presence of independent witnesses. Perusal of the information shows that there was no independent local person as witness and there is no evidence identifying the place as belonging to the assessee before such affixture. In the instant case, though the letters have stated to have been issued from 2013 onwards and the correct address could not be located, subsequently, it is observed that the assessment order and the demand notices were served on the assessee on the same address which shows that the department has not made proper efforts or the enquiries to locate the assessee. From the above, it is established that the department did not make proper service of the notice as per the procedure laid down in the Code of Civil Procedure. - Decided in favour of assessee. - I.T.A.No.424 & 425/Viz/2018 - - - Dated:- 30-9-2019 - Shri V. Durga Rao, Judicial Member And Shri D.S. Sunder Singh, Accountant Member For the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO has taken the market value of ₹ 9,35,000/- adopting the value determined by the stamp valuation authorities as per Section 50C and allowed the cost of acquisition as per document No.614 of 2005 dated 15.02.2005 and taxed the balance amount of ₹ 7,35,000/- under short term capital gains as per the details given below: Sale Consideration ₹ 4,00,000 Market Value as per 50C ₹ 9,35,000 (A) Purchase Cost (doc.No.614/2005, dt.15.02.2005) ₹ 2,00,000 (B) Total short term capital gain (A)-(B) ₹ 7,35,000 Accordingly, the AO completed the assessment on total income of ₹ 7,35,000/-. 3.1. Similarly for the A.Y.2008-09 also , the AO served the notice u/s 148 by affixture as per the last known address. For the A.Y.2008-09, the assessee has sold one property admeasuring 333.33 sq.yds together with built up area of 750 sq.ft. RCC house situated at D.No.4-46-9/8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-08 and 2008-09 is the notice issued u/s 148 is not in accordance with law which renders the assessment void ab initio. During the appeal hearing, the Ld.AR argued that the AO has not served the notice u/s 148 to the assessee for both the assessment years. The Ld.AR further submitted that since, the notice u/s 148 was not served, the same required to be quashed as void ab initio. 6. On the other hand, the Ld.DR argued that for both the assessment years, the AO conducted enquiries by issue of letters on 22.01.2014 for the A.Y. 2007-08 and on 04.03.2013 for the A.Y.2008-09, calling for the information. The letters sent for both the assessment years could not be served on the assessee and enquiries were caused by the field functionaries of the department and found that the present whereabouts of the assessee were not known. Therefore, the notices issued u/s 148 were served by affixture on the last known address, thus, argued that, since, the notices were served by affixture in the last known address, the same should be treated as valid service, hence requested to uphold the validity of issue of notice u/s 148 of the Act. In support of the service of the notice by aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Procedure mandates that an independent local person to be the witness of service through affixture and for the purpose of having been associated with the identification of the place of business of the assessee. In the instant case, the department could not place any evidence to show that the department has made the efforts to serve the notice in person. There was no evidence of having made the efforts to serve the notice either by post or through notice server. Though there was a report of inspector having served the notice by affixture, there was no panchnama drawn by inspector for service of notice by affixture, specifying the place which is being witnessed by independent witnesses. The notices u/s 148 bear the signature of two witnesses without the details of names and addresses. There was no endorsement on the notices having served the notices by affixture. Without the proper endorsement having served the notice by affixture in the presence of local person identifying place of the assessee, the same cannot be held as valid service. Similarly though the AO has stated to have served the notice u/s 142(1) also by affixture, no evidence was brought on record to show that the not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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