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TMI Blog2011 (11) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... he following substantial question of law was framed : "(i) Whether the Income Tax Appellate Tribunal is correct and justified in law in annulling the assessment order framed by the Assessing Officer under Section 143(3) of the Act holding that there was no valid notice under Section 143(2) of the Act within the statutory period despite the fact that the assessee had participated in the assessment proceedings under Section 143(3) of the Act and thereby has waived issue of service by affixture and thereby acceded to the position that in effect there was service of notice and hence, the law of limitation enshrined under Section 143(3) of the Act would not come to his aid?" 3. The respondent-assessee had filed his return of income on 31.10.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at "served" means actual service and not issue of notice. Similar view has been taken in CIT Vs. Pawan Gupta (2009) 318 ITR 322(Del). 6. The question, therefore, is whether the respondent-assessee was served on or before 31st October, 2002 with the notice under Section 143(2). The tribunal has decided the said issue in favour of the respondent, inter alia, recording as under : "2.9 Applying the ratio laid down in the aforesaid case the facts of the present case, we notice that the entire process of issuing the notice and effective service is claimed to have been done on 31/10/2001. The affidavit of the Inspector is silent about the reasons why he was resorting to service of notice by affixture. Another interesting aspect, which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hashi Rai and Manohar, Tax Assistant. In the said report Shashi Rai had stated that that the notice issued to the respondent has been affixed by her at No.1, Mandir Marg, Saiduljab, as he could not be served. Manohar had verified/affirmed that the notice was affixed by Shashi Rai in his presence. 8. What is noticeable from the aforesaid is that Inspector had gone to the address mentioned by the respondent-assessee in the return but found that the respondent had shifted to another address. She thereafter, along with the Tax Assistant went to the new address, which was made available to her and had affixed notice at the new address, as the respondent assessee was not available. Thus, the process server had tried her level best to serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex-parte order but the same was dismissed by the tribunal on the ground that the appeal was barred by limitation. The factual position in the present case is different. 11. In Ravi Datt's case (supra) an ex-parte decree has been passed and an application was moved for setting aside. The court noticed that the wife of the defendant had allegedly refused to accept the summon and summon was affixed. The court noticed that the wife of the defendant was an illiterate lady and only one attempt was made to serve the defendant by ordinary process. In these circumstances, the court had made observations with reference to the Order V Rule 17 and the service by affixation should not be made on the very first attempt, if it is refused. The said observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice if the Court may feel itself not satisfied by the verification by affidavit of the serving officer. It may direct the service afresh and in such manner and with such directions as it may deem fit. Discretion in the matter of treating the service by affixation as good and valid, as is conferred by Rules 19 of the Order 5 of the CPC is also found conferred on the Company Court by Rules 32 and 36 of the Companies Court Rules, 1959. If at the time of hearing of the petition, the Judge may form an opinion that the respondent has not been served or has not been properly served, the hearing of the petition may be adjourned and directions may be made for effecting the service afresh and in such manner and with such directions as the Court ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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