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2014 (12) TMI 473 - AT - Income TaxValidity of assessment u/s 143(3) r.w. section 147 – Notice not served as provided u/s 143(2) - Whether the reopening of assessment was made in absence of reason to believe and material on records and whether there was service of notice u/s.143(2) much less a proper service as per Rule 17 of Order V of CPC – Held that:- The limitation prescribed is mandatory, the format of provision being in negative terms - if the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, such requirements are, in all cases absolute and neglect to attend to such requirement will invalidate the whole proceeding – in Assistant Commissioner of Income-tax vs. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT OF INDIA] - the AO has to necessarily follow the provisions of section 142 and sub-sections (2) and (3) of section 143 - assessee has filed his objection before the AO and such objection has also been noted by the AO in his assessment order to the effect that assessee has objected non service of notice u/s.143(2) during the course of assessment proceedings itself - Thus, participation of assessee in the assessment proceedings will not disentitle the assessee his right to object to the service of notice u/s.143(2) of the I.T. Act, 1961. Notice issued u/s 143(2) dated 17-7-2012 returned unserved by postal authorities - notice was affixed by the Inspector on 28-7-2012 - Serving Officer had not set out reason for passing subsequent entry nor for adopting the mode for service by affixture and without stating the reasons for doing so, the adoption of the mode of substituted service could not be legally justified - Notice was served by affixture - the adoption of mode of substituted service was not legally justified - there is no mention of name and address of the person who had identified the house of the assessee and in whose presence the notice u/s 143(2) was affixed - there was no valid service of notice u/s 143(2) by way of affixation - the department has not been able to demonstrate that notice u/s.143(2) was served within the statutory time limit, the assessment made on the basis of such invalid notice could not be treated to be valid assessment and, such assessment order deserves to be treated as null and void and liable to be quashed and annulled – Decided in favour of assessee.
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