TMI Blog2004 (10) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer proceeded to complete the assessment under section 143(3)/144 assessing the total income of the assessee at Rs. 20,00,000 as against the returned loss of Rs. 10,200. Aggrieved by the same, the assessee firm preferred an appeal before the learned CIT(A) challenging, inter alia, the validity of the order passed by the Assessing Officer under section 143(3) on the ground that no notice under section 143(2) was served on it within the time limit specified in the proviso to the said sub-section. Examination of assessment record by the learned CIT(A), however, revealed that the first notice issued under section 143(2) was served at the address given by the assessee in its return and the same was also signed by the recipient as 'A. Singh'. It was, however, submitted on behalf of the assessee firm that the said signature appearing on the office copy of notice under section 143(2) docs not belong either to any of its partners or authorized representative. It was also submitted that there is no person employed with the assessee firm who could have signed as Mr. A. Singh. It was, therefore, alleged that the said notice apparently has been served on a fictitious person not relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or requisition under this Act may be served on the person therein named either by post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908 (5 of 1908). (2) Any such notice or requisition may be addressed- (a) in the case of a firm or a Hindu undivided family, to any member of the firm, or to the manager or any adult member of the family; (b) in the case of a local authority or company, to the principal officer thereof; (c) in the case of any other association or body of individuals, to the principal officer or any member thereof; (d) in the case of any other person (not being an individual), to the person who manages or controls his affairs." 4. As is evident from the aforesaid provisions, a notice may be addressed in the case of a firm to any of its partners in addition to the firm itself in whose name the said notice is issued. As per the provisions contained in sub-section (1) of section 282, such notice has to be served either by post or as if it were a summons issued by a Court under the Code of Civil Procedure, 1908. Order V of Code of Civil Procedure, 1908 contains the provisions relating to issue and service of summons. Rules 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly authorized. As per Rule 12 of Order V of CPC, a service has to be made, wherever it is practicable, on the person named therein unless he has an agent empowered to accept service in which case service on such agent is sufficient. In terms of Rule 13(1), a notice against a person who does not reside within the jurisdiction of the concerned agent, service on any Manager or agent who, at the time of service, personally carries on such business or work for such person within such limits shall be deemed to be good service. In terms of Rule 14, when service cannot be made on the person named therein, the same may be made, in the absence of an agent empowered to accept the service of summons, on any agent of such person in charge of the property of the defendant. As per Rule 15, where the defendant is absent from his residence when the service is sought to be effected and there is no likelihood of his return within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Service of notice on a person who is employed by the assessee, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive. Consequently, the circumstance that the notice is not addressed to a partner will not invalidate the same if in fact it is served on the partner and accepted by him on behalf of the firm. A notice served on one of the partners of the firm is a sufficient notice to satisfy the requirements of law. However, notice issued to a firm cannot be validly served through Process Server on its employees who are not authorized to receive such notices as held by Hon'ble J K High Court in the case of B. Johar Forest Works and Hon'ble Madras High Court in the case of Jayanthi Talkies Distributors. Similarly, service of notice relating to a firm on a person not connected nor concerned in any manner with the firm would be no service at all as held by Hon'ble Allahabad High Court in the case of Shri Sidh Co. v. ITAT [1992] 194 ITR 747. 7. Where the notice is not served by post, it has to be established by the Revenue that the service has been effected as if the notice is a summons issued by the Court under CPC. Rule 16 of Order V of CPC provides that when the serving officer delivers or tenders a copy of the summons to the defendant personally or to an agent or other person on his behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice purportedly served on the assessee firm was neither served on any of its partners or its agent duly authorized to receive the said notice. As is evident from the record, the same was served on one Mr. A. Singh who was neither the agent of the assessee firm duly authorized to receive the said notice on its behalf nor even its employee. The said person to whom the notice in question was claimed to be served and who had even acknowledged receipt of the same, was neither identified by the notice server nor delivering or tendering of the said notice to him was witnessed as required by Rule 18 of Order V of CPC. Before the learned CIT(A) as well as before us, the plea raised on behalf of the assessee firm has been that the said notice was not received by it as claimed by the Revenue and it was, therefore, incumbent upon the Department to place on record the relevant material to establish that the service was made either on the assessee firm itself or any of its partners or on somebody else duly authorized by it to receive such notice. The Revenue, however, has failed to discharge this onus that lay on it. Having regard to all these facts of the case and keeping in view the spec ..... 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