TMI Blog2002 (5) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer, notices under section 142(1) were issued on 1-3-2000 and 23-3-2000 fixing the dates of hearing on 8-3-2000 and 27-3-2000 respectively which, according to the Assessing Officer, remained uncomplied with. Accordingly, the assessments were framed under section 144 vide orders dated 31-3-2000. These assessments were challenged before the CIT(A) before whom it was submitted that none of the alleged notices issued under section 142(1) were served upon the assessee and the assessee came to know about these notices only on receiving the impugned assessment orders through registered post. According to the assessee, the office record was examined and it was found that record relating to issue and service of the notice under section 142(1) had been forged in the office. In support of this claim, the assessee produced the visitor's register maintained by the chowkidar of the multistoreyed residential complex in which assessee owned his flat. According to him, there was no entry in respect of the visit by any notice server or any Inspector from the Income-tax Department. 3. After examining the assessment record, the CIT(A) found that notice under section 142(1) issued on 1-3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein it has been held that mere fact that the Assessing Officer did not find the assessee at the address, is not sufficient to establish that he could not be found. The Assessing Officer must show that he made reasonable efforts to find the person on whom the service was to be affected. It is only when such person could not be found after due efforts, the notice by affixture could be effected. In addition, he also relied on the decision of Kerala High Court in the case of A.A. Kochandi v. Agricultural ITO [1977] 110 ITR 406 and the decision of Gauhati High Court in the case of Smt. Kamala Devi Todi v. CIT [1988] 174 ITR 414. At this stage, the original record produced by the DR was seen and it was found that on the notice under section 142(1), the signatures of notice server and the inspector were there but such notice did not bear the signature of any witness. There was also no report to the effect that any effort was made to find out the assessee. The counsel for the assessee also relied on the fact that there was no entry in respect of visit of notice server or the income-tax inspector in the visitor's register maintained by the chowkidar of the society, where the assessee was l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld. 7. After considering the rival submissions of the parties and relevant provisions of the statute as well as the material placed, I find merit in the contentions of the learned counsel for the assessee. A bare look at the provisions of section 144 reveals that jurisdiction to assess to the best of judgment can be validly assumed only if any person: (a) fails to make the return required under sub-section (1) of section 139 and has not made a return or a revised return under sub section (4) or sub-section (5) of that section, or (b) fails to comply with all the terms of a notice issued under sub section (1) of section 142 or fails to comply with a direction issued under sub-section (2A) of that section, or (c) having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of section 143 In the present case, the issue relates to non-compliance of notice under section 142(1) which provides that for the purpose of making assessment under the Act, the Assessing Officer may serve on any person who has made a return under section 139 a notice requiring him on a particular date to be therein specified to produce or cause to be produced such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 19 provides that where a summon is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summon has been duly served or order such service as it thinks fit. At this stage, the attention is also drawn to Rule 20 which provides the circumstances under which the substituted service can be effected. For the benefit of this order, the provisions of Rule 20 are being reproduced as under: "20. Substituted service-- Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer to the effect that service by affixture was made in terms of Rule 20. So it appears that the so-called service was in utter disregard of the provisions of Order V Rules 17, 19 20. Accordingly, it is held that there was no valid service of notice issued under section 142(1). Regarding the second notice under suction 142(1), there is nothing on the record as to how the notice was served. The assessee has totally denied any service of notice under section 142(1). In view of the above discussion, it is, therefore, held that jurisdiction to assess under section 144 was not validly assumed and consequently, the impugned assessments under section 144 were void ab initio. 10. There is also merit in the alternate contention of the learned counsel for the assessee that issuance of notice under section 142(1) was barred by period of limitation. In order to appreciate the contention of assessee's counsel it would be useful to reproduce the relevant provisions of sections 142 and 143: "Section 142(1): For the purpose of making an assessment under this Act, the Assessing Officer may serve on any person who has made a return under section 139 or in whose case the time allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment under this Act". That means that the enquiry notice under section 142(1) can be issued only if the Assessing Officer either has validly assumed the jurisdiction to make the assessment or can validly assume jurisdiction to assess after making enquiry under section 142(1). Therefore, it may be impliedly inferred that if the power to assess is lost by the expiry of limitation period, the notice under section 142(1) cannot be issued. The jurisdiction to assess can be assumed only within the four corners of provisions of section 143. The provisions of sub-section (2) of this section clearly provides that notice for making assessment can be issued only within a period of 12 months from the end of the month in which the return is processed. That means after the expiry of such period, the Assessing Officer has no jurisdiction to make the assessment under section 143(2) or (3) and the only course open to the Assessing Officer is to accept return under section 143(1). Therefore, in my considered opinion, after the expiry of the period mentioned in subsection (2) of section 143, no notice under section 142(1) can be issued because of the lack of power to assess. This view is fortified ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
