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2016 (10) TMI 408 - HC - Income TaxReopening of assessment - validity of notice - whether or not the notice under Sec. 148 of the Income Tax Act was duly served on the petitioner? - effect of non-service of notice on the proceedings or action taken in pursuance of such notice? - Held that:- From the report of the Inspector attached to the office of the IT Act, Ward-9(3), Calcutta, it is evident that the said Inspector attempted to contact the petitioner at its erstwhile address at Biplabi Anukul Chandra Street and not having found the petitioner there, affixed a copy of the notice under Sec. 148 of the IT Act at the said address. This report is dated 31 March, 2014. Although this report mentions that the said address was last known address of the petitioner, such statement is obviously incorrect. As stated above, starting from 2009-10 the Department has sent all correspondences and notices to the petitioner at its Sunny Park address. Further, the Department has disclosed no document to show that Sec. 148 notice was even sought to be served at the petitioner's Sunny Park address nor any such point was urged in the course of making oral submission by Learned Counsel for the respondents. Hence, it appears to be absolutely clear that the notice under Sec. 148 of the IT Act was never served on the petitioner at its Sunny Park address. Hon'ble Apex Court in the case of Commissioner of Income Tax-vs.- Thayaballi Mulla Jeevaji Kapasi [1967 (3) TMI 1 - SUPREME Court] wherein it was held that the mere fact that the serving officer did not find the party to be served with the notice at his address is not sufficient to establish that he cannot be found. It must be shown not only that the serving officer went to the place at a reasonable time when he would be expected to be present, but also that if he was not found, proper and reasonable attempts were made to find him either at that address or elsewhere. If after such reasonable attempts the position still was that the party is not found, then and then only can it be said that he cannot be found. In the instant case, it does not appear that any attempt was made by the serving officer to find the assessee at any other address. Indeed, we are at a loss to understand why the notice was sought to be served at the erstwhile address of the petitioner when the Department was fully aware of the shifting of the registered office of the petitioner to Sunny Park and had the current Sunny Park address in its records. Thus have to hold that notice under Sec. 148 of the IT Act was not duly served on the petitioner. Any proceeding initiated by the Department pursuant to the notice dated 31 March, 2014 issued under Sec. 148 of the IT Act or any order passed in such proceeding is bad in law and of no effect. Such proceeding and order passed therein, if any, are hereby quashed.- Decided in favour of assessee
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