TMI Blog1999 (5) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived another notice under s. 142(1) of the Act along with letter from the AO, Ward-4,Faridabadfixing the date of hearing on10th Feb., 1995. The adjournment as requested was granted and the assessment was finalised on16th Feb., 1995. The assessee was informed that the proceedings under s. 147 of the Act were initiated against the assessee on5th March, 1993and the notice under s. 148 of the Act was served on the assessee on9th March, 1993. The proceedings as initiated were stated to be on account of the information received from the ST authorities who in turn on inspection of the business premises found stock in excess of the value of Rs. 5,68,000. As per arguments advanced the AO,Investigation Circlewho initiated proceedings under s. 147 of the Act had no jurisdiction over the assessee's case w.e.f.21st Aug., 1991. The jurisdiction over the assessee's case lay with the ITO and not with the Asstt. CIT,Investigation Circle,Faridabad. His jurisdiction lay over the cases in which searches were conducted or for the years prior to the assessment years of search. In support attention was drawn to the order of the jurisdiction dt.16th May, 1988. At the time when searches were conducted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es resided together Shri Rajinder Singh had no authority to receive the notice on behalf of the assessee. The firm was dissolved in 1990-91. The Department was duly informed about the dissolution. In the background the service of the notice was not proper. As held by their Lordships of Punjab Haryana High Court in the case of Kunj Behari vs. ITO (1983) 139 ITR 73 (P H), the service has to be effected on the person concerned and the same has to be in accordance with O. 5 rr. 9 to 20 of CPC. Similar view was taken by their Lordships of Allahabad High Court in the case of Shri Sidh Co. vs. ITAT (1992) 194 ITR 747 (All). In the circumstances, argued the learned Authorised Representative on both Courts i.e., on account of lack of jurisdiction and non-service of proper notice, the assessment framed is to be quashed. On merit the assessment as framed cannot be upheld because an addition of Rs. 5,68,400 has been made on the basis of order of the ST authorities without making any independent enquiry. The order of the ST authorities on the other hand stands set aside. In fact against the addition made the Joint Excise Taxation Commissioner remanded the case to ST authorities for determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ril, 1991as per the information lying on records (assessment record requisitioned during the course of hearing). Intimation in record to discontinuance of the business was also given to the AO,Investigation Circle,Faridabadvide letter dt.22nd April, 1991. Along with this the deed of dissolution executed on15th April, 1991between Shri Kanhiya Lal and Shri Davinder Singh was also filed. In the notice issued under s. 148 the following address was given: M/s Kanhiya Lal Surinder Kumar, Anaaj Mandi, OldFaridabad, Through Kanhiya Lal and Shri Davinder Singh. The aforesaid notice was served on Shri Rajinder Singh. This was dt.9th March, 1993. Subsequent notices under s. 143(2) and 142(1) of the Act were served on Shri Davinder Singh. It was on 23rd Dec, 1994 that the assessment records of the assessee were transferred to the ITO, Ward-4, Faridabad and against the column 'pendency'-assessment for asst. yrs. 1989-90 and 1991-92 were shown as pending. On further perusal of the assessment records it is found that the subsequent notices under s. 142(1) dt.3rd Feb., 1995and latter dt.2nd Feb., 1995were served on Shri Davinder Singh, in response to which the assessee requested for inspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m notice is sent. As per s. 27 of General Clauses Act, 1897 where the notice is properly addressed, pre-paying and posted by registered post, the same would be deemed to have been served on the party. As to the second mode of service it is to be as per procedure laid down in respect of the summons issued by a Court under the CPC 1908 (5 of 1908). Reading all the provisions of O. 5, rr. 9, 12 and 20 of the CPC, 1908 makes it clear that ordinarily the service has to be effected on the person concerned personally. Whereas r. 9 makes a mention by a summons to be sent by post, as per r. 12 wherever it is practicable services is to be made on the party in person unless he had an agent empowered to accept service in which case service on such agent would be sufficient. Rule 17 speaks of the procedure when defendant refuses to accept the service or cannot be found. Rule 19 lays down the procedure for examination of serving officer. 5. The expression generally used in the title of the section read with the expression 'may' in sub-s. (1) of s. 282 of the Act would show that modes as prescribed are not exhaustive. As held by the Hon'ble Gujarat High Court in the case of CIT vs. Bhanji Kanji ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
