2007 (4) TMI 44 - HC - Income Tax

Notice u/s 148 issued by hand but due to holiday security guard refused to accept. Notice was served by affixation. Notice send through registered post was also un-complied with. It was held since there has been no proper service of notice on the assessee re-sessment proceedings are bad in law.

Summary

Issues Involved:
1. Validity of service of notice under Section 148 of the Income Tax Act.
2. Legitimacy of re-assessment proceedings and the resulting order dated 30th January 2003.

Detailed Analysis:

1. Validity of Service of Notice under Section 148 of the Income Tax Act:

The primary issue in this case concerns whether the notice under Section 148 of the Income Tax Act was duly served upon the Assessee before the commencement or completion of the re-assessment proceedings. According to Section 148(1) of the Act, the Assessing Officer must serve a notice requiring the Assessee to furnish a return of income before making any assessment, re-assessment, or re-computation. Additionally, Section 282 of the Act outlines that such notice may be served by post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908.

The Revenue argued that the notice under Section 148 was sent by registered post and also served by affixation at the Assessee's address after the security guard refused to accept it. The Tribunal, however, found that the notice was neither tendered to the Assessee nor refused by the Assessee or his agent. The security guard, who refused to accept the notice, could not be considered the Assessee's agent. Consequently, the Tribunal concluded that there was no proper service of notice, rendering the re-assessment proceedings invalid.

2. Legitimacy of Re-assessment Proceedings and Resulting Order:

The Tribunal's decision to quash the re-assessment proceedings was based on the improper service of notice under Section 148. The Tribunal emphasized that the Income Tax Department did not make adequate efforts to serve the notice personally to the Assessee or his recognized agent, as required under Order V Rule 12 of the Code of Civil Procedure. Furthermore, the notice sent by registered post did not include an acknowledgment due, violating Order V Rule 19A of the Code of Civil Procedure.

Given the lack of proper service, the Tribunal held that the re-assessment proceedings culminating in the order dated 30th January 2003 were bad in law. The High Court concurred with the Tribunal's findings, stating that the order did not give rise to a substantial question of law, which is a prerequisite for an appeal under Section 260-A of the Income Tax Act.

Conclusion:

The High Court upheld the Tribunal's decision, confirming that the re-assessment proceedings were invalid due to improper service of notice under Section 148. Consequently, the appeal filed by the Revenue was dismissed, affirming the Tribunal's finding of fact and the legal principles applied.