TMI Blog2011 (11) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... STICE SANJIV KHANNA, MR. JUSTICE R.V. EASWAR, JJ. For Appellant: Mr. Kiran Babu, Sr. standing counsel. For Respondent: Ms. Amita Gupta, Adv. SANJIV KHANNA,J: (ORAL) The present appeal under Section 260A of the Income Tax Act, 1961 (Act, for short) is at the instance of the Revenue and is directed against the order dated 30.11.2007 passed by the Income Tax Appellate Tribunal (tribunal, for short) in the case of Samir Kumar Aditya, the respondent-assessee and relates to assessment year 2000-01. 2. By order dated 18.1.2011 the 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that no notice under clause (ii) shall be served on the assessed after the expiry of twelve months from the end of the month in which the return is furnished. 5. It is clear from the aforesaid Section that notice was required to be served within a period of 12 months from the date of filing of the return i.e. in the present case on or before 31st October, 2002. The word served used in the said Section has come up for consideration and interpreted by this Court in CIT Vs. Lunar Diamonds Ltd. (2006) 281 ITR 1 (Del.). It was held that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the address mentioned by the respondent in his return of income for the year in question. Copy of the said notice has been placed on record as Annexure A. On the backside of the said notice, process server namely Shashi Rai, Inspector had recorded that respondent was not available at the said address. Name of Uppal Builders, a tenant, was mentioned. The process server had further recorded that We have gone to one Saiduljab and affixed the notice there . The appellant filed on record the report of service, which was signed by Inspector Shashi 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 serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yakub Abdul Razak Memon Vs. Competent Authority (supra) notice had been served by affixture without any attempt by the process server to serve the notice by ordinary process i.e. by tendering the notice to the person, to whom it was intended or through his agent as required by Section 22 of the Smugglers and Foreign Exchange Manipulators (Forfeiture Of Property) Act, 1976. It was held that there was no valid service. It may be observed that in the said case, the appellant before the Supreme Court had preferred an appeal against the 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-par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the witnesses if available. Even under Rule 17 presence of witnesses is not mandatory, as the use of the words if any suggests. Presence of witnesses is not mandatorily contemplated by Rule 17. In short, the absence of witnesses at the time of affixation would not by itself annul the affixation or invalidate the service. Rule 19 vests a discretion in the Court. The Court may feel satisfied by the verification on affidavit made by the process server or examine him so as to satisfy itself as to the regularity and reliability of the service 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. Discr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the affidavit/service report submitted by the Inspector, the date of the notice was mentioned as 30.10.2001. This is clearly a clerical or typographical error as the date on the notice is 31.10.2001 and it is clearly reflected in Annexure A. It is not the case of either party that the notice was issued on 30.10.2001. Of course, there cannot be any doubt that department should have taken precaution and should have issued notice well in advance, as they knew that the limitation period for service would expire on 31.10.2001. Had care been taken this entire exercise and appeal would have been avoided. 17. In view of the facts stated above question of law is answered in favour of the Revenue and against the respondent. The matter is remitt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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