TMI Blog2010 (6) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... That the learned lower Court erred in not quashing the order passed by the Assessing Officer as ab initio invalid because the notice under section 143(2) was not served within the time-limit prescribed and in the manner prescribed." 4. Briefly stated, the facts of the case are that the assessee is engaged in the business of readymade garments, accessories, photo goods, watches and cellphones. The case of the assessee was selected for scrutiny, and to finalise the assessment proceedings notice for hearing under section 143(2) of the Income-tax Act, 1961 (in short, the Act) dated 31-10-2006 was served by affixture and a copy of the said notice was sent through speed-post on the same date i.e., 31-10-2006 which was received by the assessee on 2-11-2009. The Assessing Officer completed the assessment under section 143(3) of the Act on 28-12-2007 and made certain additions/disallowances. 5. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the CIT(A). The assessee challenged the validity of the notice issued under section 143(2) of the Act. The main contention of the assessee before the CIT(A) was that the notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to lack of time, the IT Inspector had no other option, and hence, he affixed the notice in the business premises of the appellant in the presence of another IT Inspector, Shri Virender Singh, who has witnessed the affixture under his signature. 5.4 The above facts make it clear that after receipt of approval from the learned Chief CIT, Lucknow, the Assessing Officer had limited hours time for service of the notice, but in as much as he has made best possible efforts to serve notice under section 143(2) on the appellant in the order of assessment, the Assessing Officer has nowhere mentioned any kind of non-co-operation from the appellant in the matter, On overall consideration of the facts and circumstances of the case, I am of the view that the notice issued under section 143(2) cannot be presumed an invalid notice. These grounds are accordingly dismissed." 6. Before us, Shri Prakash Narayan, learned counsel for the assessee, reiterated the submissions made before the lower authorities. He further submitted that first notice under section 143(2) dated 31-10-2006 was received by the assessee on 2-11-2006 by speed-post which is barred by time. The Assessing Officer has all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions and have also perused the materials available on record. In the instant case, we have to determine whether above service through affixture was made in accordance with law or not ? The claim made by the Revenue is that the notice in question had been served through affixture as provided in the CPC. Order V rr. 1 to 30 of the CPC, 1908 relates to issue of service of summons. Order V r. 17 relates to procedure when defendant refuses to accept service, or cannot be found. The said rule reads as under : "17. Procedure when defendant refuses to accept service, or cannot be found. Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant (who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time) and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and necessary utilization. Sd/- Sd/- (Arun Kumar Srivastava) (Virendera Singh) Inspector II(3), Lucknow Inspector, R-II, Lucknow." 8.2-2 From the above report it is clear that the report of the Inspector Shri Arun Kumar Srivastava was witnessed by another IT Inspector Shri Virendra Singh. There was no evidence of any independent person having associated with the identification of the place of business of the assessee. There is no evidence on record to show that the Inspector Shri Arun Kumar Srivastava or the Inspector Shri Virendra Singh had personal knowledge of the place of the business of the assessee and was, thus, in a position to identify the same. 8.3 In the case of A.K. Kochandi ( supra ), the Hon ble Kerala High Court held (headnote) as under : "Where service of notice on the assessee or his authorized agent or an adult member of his family is not possible, statutes authorize substituted service and such service attributes constructive knowledge to the assessee. To attribute such constructive knowledge, the substituted service must be in accordance with the prescribed procedure, that is, by section 64 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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