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TMI Blog1983 (11) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... se to a notice issued under section 142(1) of the Act, which was served on the assessee on 5-6-1979. The ITO, therefore, completed an assessment under section 144. The assessee made an application under section 146 of the Act, which was rejected by the ITO. Then, an appeal was preferred against the order passed on the assessee's application made under section 146 but that appeal was withdrawn by the assessee before the Commissioner (Appeals). The assessee also filed appeal against the ex parte order passed under section 144 raising a plea that there was no proper service of the notice issued under section 139(2). The Commissioner (Appeals) considered this plea and was of the view that the notice under section 139(2) was not properly served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being admitted. We enquired from Shri Saxena as to why this ground was not raised along with other grounds. He submits that the ITO came to know only from the explanation of the notice server dated 29-9-1982 that he had duly served the notice on Shri Babulal but be was not sure about the signature, which he obtained on the notice. Shri Ranka submits that the explanation dated 20-9-1982 was already before the ITO when the appeal was filed before the Commissioner (Appeals) on 15-10-1982 and that discovery of explanation dated 20-9-1982 cannot be a new event. Before us Shri Saxena does not say that the ITO could lay his hands on the explanation dated 20-9-1982 of the notice server only after having filed the appeal before the Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under section 139(2) was not validly served on the assessee and, therefore, the assessment made under section 144 was bad in law. The contention of the revenue is that the validity of the assessment on this ground could not have been challenged by the assessee in the appeal filed under section 144 and that the assessee should have taken up and pursued this ground in the appeal filed against the order under section 146. In short, the revenue's contention is that the assessment order cannot be proved to be invalid in this appeal on the ground that notice under section 139(2) was not validly served on the assessee. Shri Ranka argues that service of the notice under section 139(2) cannot be challenged under section 146 and that can be challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and under this clause the assessee is required to show that he was prevented by sufficient cause from making return as required by section 139(2). The question whether or not the assessee was required to file return by section 139(2), does not come within the purview of section 146, Shri Ranka says. His submission is that this question can be decided only in the appeal filed against the order passed under section 144. We find force in the submissions of Shri Ranka. If the notice under section 139(2) is duly served on the assessee and he still fails to file return in response to that, then the assessee can explain under section 146 that he was prevented by sufficient cause from making the return as required by section 139(2). But, if the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manager of the firm who subsequently also wrote to the ITO asking for time to file the return in pursuance of the said notice. As no return was filed, the ITO completed the assessment under section 144. The assessee filed an appeal to the AAC contending that there was no valid service of notice as it had not been served on a proper person duly authorised to receive the same. The application to the ITO under section 146 to set aside the assessment having been rejected, the assessee filed an appeal to the AAC against that order as well. The AAC allowed the appeal filed against the order under section 146 and, consequently, held that the appeal against the order under section 144 had become infructuous. The assessee filed an appeal to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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