TMI Blog2008 (7) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice to be served before the expiry of 12 months from the end of the month in which the return was furnished, since the service of the notice is not within the limitation provided, there is no valid service on him. Held that- dismissing the appeal, that there was no personal service of notice on the assessee and the notice dated October 31, 2002, was served on the assessee beyond the period of limitation prescribed. The first notice served by affixture was invalid since the assessee had neither avoided service of notice nor was there any reason to infer that the notice could not be served in an ordinary way. The Department could not resort to section 292B of the Act to validate the mandatory requirement of service as postulated under section 143(2) of the Act could not be treated as defect of the service of notice which could be cured under section 292B of the Act. The Notice served under section 143(2) of the Act was invalid. - 448 of 2008 - - - Dated:- 29-7-2008 - SATISH KUMAR MITTAL and AUGUSTINE GEORGE MASIH JJ. Yogesh Putney for the appellant. JUDGMENT The judgment of the court was delivered by 1. AUGUSTINE GEORGE MASIH J. - The abovementioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice is stated to have been served by affixture. Apart from this, another notice dated October 30, 2002, was also issued and sent by registered post on October 30, 2002, at 4.05 p. m. The notice was served on the assessee on November 1, 2002. The assessee has taken a plea that the proviso to sub-section (2) of section 143, requires the notice to be served before the expiry of 12 months from the end of the month in which the return was furnished, since the service of the notice is not within the limitation provided, there is no valid service on him. It is further pleaded that any action taken pursuant to such invalid notice was liable to be set aside and the assessment framed to be annulled. The facts are not in dispute in this case. The Tribunal, vide its order dated August 24, 2007, has after going through the details of the pleadings, the records and the statements on record given the following findings: "7. We have considered the relevant facts, arguments advanced and the decisions cited. As regards service of notice dated October 30, 2002, it is not disputed by the Revenue that the same is served only on November 1, 2002, i.e., beyond the limitation prescribed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. (e) There is no material on the basis of which it can be said that the Assessing Officer has reason to believe that the assessee was keeping out of way for purpose of avoiding service of notice. If the notice was issued on October 29, 2002, for personal delivery, no reasons are mentioned as to why the same could not be served either on October 29, 2002, or on October 30, 2002, or before the close of the office hours on October 31, 2002." 4. Section 282 of the Income-tax Act provides the manner in which a valid service can be effected. This section states that a notice under the Act is to be served either by post or as if it was summons under the Code of Civil Procedure, 1908. 5. Order V. rules 12 to 20 of the Code of Civil Procedure, 1908, provides for the service of summons on the defendant. Rule 12 provides that the service shall be made on the defendant in person whenever it is practicable unless he has an empowered agent to accept the service in which case the service on such agent shall be sufficient. 6. It is not in dispute that personal service on the assessee was not effected in the present case. Further, it is not disputed that notice dated Octob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary way. Before affixture, the serving officer of the summons, must use his due and reasonable diligence to find out the defendant/respondent and if the circumstances as mentioned in rule 17 exist, then and only then, the notice may be served by affixture and that too in the presence of witnesses by whom the house was identified and in whose presence the copy was affixed. Merely because the noticee in this case has not been found at the given address is not sufficient to establish that he could not be found, when there is nothing to show that reasonable efforts to find the person on whom the service was to be effected have been made. 9. In the present case, the very first notice is stated to have been served by affixture, which is not valid as it cannot be said that the assessee was avoiding service of notice or there was any other reason existing whereby it can be inferred that the notice cannot be served in an ordinary way. 10. Section 143(2) of the Income-tax Act reads as under: "(2) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall, if he considers it necessary or expedient to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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