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2008 (7) TMI 520 - HC - Income TaxAssessment- Notice under section 143(2) of the Income-tax Act was issued on October 29, 2002. The notice server is stated to have visited the factory premises of the assessee on October 31, 2002 and as per the report of the notice server, when he reached the premises of the assessee, the office is stated to have been closed. He approached the Assessing Officer, who directed the notice to be served by affixture. The Assessing Officer ordered that since notice under section 143(2) dated October 29, 2002, could not be served in the ordinary course as the assessee had deliberately avoided the service of notice, he directed the notice server to serve the notice by affixture at the premises of the assessee. Accordingly, the notice is stated to have been served by affixture. Apart from this, another notice dated October 30, 2002, was also issued and sent by registered post on October 30, 2002, at 4.05 p. m. The notice was served on the assessee on November 1, 2002. The assessee has taken a plea that the proviso to sub-section (2) of section 143, requires the notice to be served before the expiry of 12 months from the end of the month in which the return was furnished, since the service of the notice is not within the limitation provided, there is no valid service on him. Held that- dismissing the appeal, that there was no personal service of notice on the assessee and the notice dated October 31, 2002, was served on the assessee beyond the period of limitation prescribed. The first notice served by affixture was invalid since the assessee had neither avoided service of notice nor was there any reason to infer that the notice could not be served in an ordinary way. The Department could not resort to section 292B of the Act to validate the mandatory requirement of service as postulated under section 143(2) of the Act could not be treated as defect of the service of notice which could be cured under section 292B of the Act. The Notice served under section 143(2) of the Act was invalid.
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