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2005 (12) TMI 230 - AT - Income TaxBlock Assessment - Search And Seizure - absence of proper service of notice u/s 158BC - barred by limitation - HELD THAT:- In our opinion this is the settled law that the affidavit of the assessee cannot be rejected without cross-examination of the person who has given the affidavit in view of the decision of the Hon'ble apex Court in the case of Mehta Parikh & Co. vs. CIT[1956 (5) TMI 4 - SUPREME COURT]. The affidavit is the best piece of evidence and CIT(A) in our opinion was not correct in law in rejecting the affidavit without bringing any evidence to the contrary. The CIT(A) was duty-bound to give opportunity to the assessee to cross-examine the Inspector and witnesses for bringing the truth as we feel it was necessary on the facts of the case to render substantial justice and to ascertain the fact whether the notice has been served on the assessee through the notice-server or by affixture. Learned DR could not bring any evidence or proof that the notice has been sent to the assessee through registered post AD nor any evidence has been produced that the AO has given finding that sending of the notice through registered post is not necessary. Even no such finding has been recorded on the order sheet. From the first page of the order and from the impression of the ink/writing it appears as if the entry dt. 15th Feb., 1999 to 31st March, 1999 has been made at one go. Therefore, we find force in the submission of the learned AR that no notice has been served on the assessee prior to 31st March, 1999 and it was only notice issued on 30th March, 1999 the copy of which is available at p. 6 has been served on the assessee for the first time on 31st March, 1999 and since the assessment was getting time-barred, the AO has tried to bring the evidence on record that the notice has been served on the assessee prior to 31st March, 1999. Genuinenity of the photocopy of the notice available at p. 6 of the paper book has not been denied by the ld DR in the open Court. Thus, we are of the view that the notice has not been served on the assessee in this case in accordance with s. 282 of the IT Act earlier to 31st March, 1999. In the absence of service of notice, the assessment order passed on 31st March, 1999 is a nullity and cannot be sustained in the eyes of law. We, therefore, set aside the order of the CIT(A) on this issue and annul the order passed by the AO. We have already held that the order passed by the AO is barred by limitation. We cannot direct the AO to make a fresh assessment because that would tantamount to extending the limitation for which we are not competent. Our aforesaid view is duly supported by the decision of the Hon'ble Supreme Court in the case of Hope Textiles Ltd. vs. Union of India [1993 (10) TMI 2 - SUPREME COURT]. In the result, the appeal filed by the assessee on this issue is allowed.
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