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2020 (1) TMI 1526 - AT - Income TaxValidity of reopening of assessment u/s 147 - notice u/s 148 was not validly served - no proof of serving notice in the normal course before proceeding with service of notice by way of affixture - mandation of serving officer has to show that all due and reasonable diligent efforts were made to serve the assessee/defendant with the notice - HELD THAT:- As notices are to be served by post or through courier service approved by the Board. In the present case, it is not emanating from records that any effort was made by the Assessing Officer to serve the notice u/s 148 of the Act either through post or courier service approved by the Board. It appears that the Inspector in the first instance itself served the notice on assessee by way of affixture. Rule 20 mandates that before proceeding with substituted mode of service of notice/summons, the Presiding Officer has to record satisfaction that the notice/summons could not be served in ordinary course. In the instant case, it is not emanating from the records that due and reasonable diligence was exercised by the Assessing Officer for serving notice in the normal course before proceeding with service of notice by way of affixture. As from the records before us it is not emanating that the AO has recorded satisfaction as envisaged under O5 R20 of CPC that the notice could not be served on the assessee in ordinary course and hence, service of notice has to be effected through substituted mode. AO has merely observed that notice under Section 148 dated 31.03.2016 was served on the assessee by way of affixture as per Inspector’s report on the same date. The manner of service of notice on assessee is certainly not in accordance with the provisions of Section 282 of the Act or even as per the provisions of Code of Civil Procedure, 1908. Thus, notice u/s 148 of the Act was not validly served on the assessee. In the absence of valid service of notice issued u/s 148 of the Act, the proceedings under Section 148 of the Act are void ab initio and the assessment order passed consequent thereto is null and void. No notice u/s 143(2) was served on the assessee after filing of return of income - As omission to issue notice under Section 143(2) of the Act is incurable and the requirement to issue such notice cannot be dispensed with. The assessment proceedings sans valid notice under Section 143(2) of the Act are bad in law. Thus, in view of the fact that reassessment order was passed without valid notice under Section 148 of the Act, and notice u/s143(2) of the Act, the same is unsustainable in law. - Decided in favour of assessee.
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