TMI Blog2004 (6) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative represented the Department. 4. The facts relevant for deciding the controversy in the ground of appeal taken by the assessee are that the return was filed by the assessee on 28-10-1994 for the assessment year 1994-95. This return was processed under section 143(1)(a) on 30-12-1994. Thereafter, a notice under section 143(2) was issued. The contention of the assessee before the learned CIT(A) was that notice under section 143(2) was served only on 20-11-1995 and that the same was time barred. Before him the assessee took additional ground to this effect which is as under: "The Learned ITO has erred in serving the 1st notice under section 143(2) after 31-10-1995 as it was done after the lapse of 12 months and thus time barred." 5. It was submitted before the learned CIT(A) that since the period of 12 months expired on 31-10-1995 and as the notice under section 143(2) could not be served by that date, the proceedings of assessment were invalid. 6. The written submissions of the assessee before the CIT(A) were as below: "12 months, therefore, expired on 31-10-1995. Hence service of notice on 20-11-1995, i.e. after the notice issued and the registered envelope and can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice by affixture. The said notice has been validly served within the time allowed under the Act. Accordingly, the additional ground is decided against the appellant." 8. The learned counsel for the assessee Shri Sinha vehemently contended that the Assessing Officer has not followed the procedure laid down in Civil Procedure Code for effecting service by affixture. In this regard he invited our attention to Order 5 of Civil Procedure Code and made specific mention to Order 5 Rule 17 and submitted that since service by affixture has not been done in the manner laid down in the provisions contained under Order 5 Rule 17, such service cannot be treated to be valid and sufficient service. The learned counsel also placed reliance on several decisions including the following: 1. Smt. Yallawwa v. Smt. Shantantavva AIR 1997 SC 35 (Para 5 at Pg. 39) 2. Sushil Kumar Sabharwal v. Gurpreet Singh [2002] 5 SCC 377 (Paras 7, 8, 9 and 13) 3. CIT v. Hyderabad Deccan Liquor Syndicate [1974] 95 ITR 130 (AP) (Page 139, Para 4, at page 143 Para 5) 4. CIT v. Satya Narain Poddar [1973] 89 ITR 136 (All.) 5. Jagannath Prasad v. CIT [1977] 110 ITR 27 (All.) (Pages 28-30) 6. Gopi Ram Agar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er also, it is found that he has effected the notice on the last known address, the details of last known address have been given in the report. It is not clear as to who gave information about the last known address to the process server. The process server or the Serving Officer has not given the name and address of the person who identified the place, where affixture of notice was done nor the name and address of the witness, before whom affixture was made. The contention of the learned counsel for the assessee in this regard was that the address of their office is still at 408, Defence Colony, New Delhi and there is no change in the address. On this basis, the correctness of the report of the process server has been challenged. It has been pointed out that the registered notice issued on 30-10-1995 and sent at this address was received and in compliance to the said registered notice, the AR of the assessee appeared and, therefore, it cannot be said that the assessee had changed the address. 12. In the present case, the assessee is a company and, therefore, for the purpose of service of notice etc. the provisions contained under section 282 are to be followed: "S. 282 Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 19: Examination of Serving Officer: "Where a summons 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 inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit." R. 20. Substituted Service- "(1) Where the Court is satisfied that there is a 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 resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit." 14. The above rules lay down the procedure for service of summons/notice and, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service by affixture and has only recorded the fact that the notice is served by the affixture. Thus, on 30-10-1995, the first entry is made and without recording its compliance and without recording any apprehension about delay by such mode, second entry is made without showing justification for the same. It appears that the report of the process server/Serving Officer is obtained without issuing any prior direction for such process or mode and after obtaining the report dated 30-10-1995, another order sheet entry is made. Besides these facts, the manner and style of writing in which the subsequent entry on 30-10-1995 is made also, created much doubt although we are not investigating into this aspect of the matter. However, the fact remains that Serving Officer had not set out reasons for passing subsequent entry nor for adopting the mode for service by affixture and without stating the reasons for doing so, the adoption of the mode of substituted service cannot be legally justified. 18. In view of the above facts, it is obvious that neither the procedure laid down under Order V, Rule 17 has been followed nor that laid down under Order V, Rules 19 and 20 has been adhered to. Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Commissioner pursuant thereto could not be sustained. 21. It is also a settled legal position that before service by affixture is accepted, the Court should satisfy itself of the conditions set out in Rule 17 of Order V of CPC. In the case of Gurana v. Kshetre AIR 1944 P. 247 (SC), it was held that where there is no evidence to show that there was any enquiry as to whether there was any local agent or relative competent to accept the service, service by affixture cannot be accepted. In the case of Sambhunath Das v. Sirish Ch. Mohapatra AIR 1985 Ori. 215, it was observed that where the defendant denies the service of notice made through process server, onus of proof shifts to the plaintiff who should prove the essential ingredients of the Order 5 Rule 17 by examining the process server. In the present case, though the assessee company denies the service by way of affixtution from the very beginning but neither the learned CIT(A) called report from the Assessing Officer nor took his affidavit nor recorded his statement to the effect that the affixture was done by him under the circumstances required under Rule 17 of Order V of C.P.C. 22. In the case of Sri Krisha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at very address and secondly even if the assessee did not intimate the change of address, then also the obligation regarding the service of notice under section 143(2) was very much thereupon the revenue. 25. The issue relating to limitation for service of notice under section 143(2) was also considered by the Hon'ble Kerala High Court in the case of P. Abdulkadar Hamza v. CIT [2000] 246 ITR 14. In that case, the assessee filed the return and intimation under section 143(1)(a) was issued on 26-2-1993. Later on, the case was selected for scrutiny under section 143(2) and notice proposing to complete the assessment under section 143(3) was sent. Notice under section 143(2) was issued on 2-6-1994. The contention of the assessee in that case was that the period of 12 months expired on 26-2-1993, notice under section 143(2) issued on 2nd June, was beyond the period of one year provided under proviso to section 143(3). The issue was not decided by the Tribunal. Therefore, the matter was restored to it for deciding the same. However, the Hon'ble Court observed as under: "It must be noted here that under the proviso to section 143(3) of the Act, the notice is required to be served on t ..... 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