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Dr. Sheo Murti Singh Versus Commissioner of Income Tax And Another

2015 (8) TMI 284 - ALLAHABAD HIGH COURT

Validity of reopening of assessment - no proper service under Section 148 read with Section 282 along with Order V Rule 17 and Order V Rule 18 of the Code of Civil Procedure - Held that:- Order V Rule 17 clearly indicates that when the notice cannot be served, the serving officer shall affix the copy of the summons on the outer door or at some other conspicuous part of the house in which the petitioner ordinarily resides or carries on business. In the instant case, the Inspector's report clearly .....

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esaid, we are of the opinion, that the service of the notice under Section 148 of the Act was validly made.

Once we have held that a valid notice under Section 148 of the Act had been issued, it is open to the petitioner to raise this objection before the assessing authority, as to whether the original assessment proceeding for the assessment year 2008-09 are pending or not and whether a valid notice under Section 142(1) of the Act has been issued. If such objections are filed, the as .....

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d a notice dated 21.5.2015 issued under Section 142(1) of the Income Tax Act (hereinafter referred to as the "Act") through which the petitioner came to known that proceeding under Section 148 of the Act had been initiated for reassessment of the income for the assessment year 2008-09. In response to the said notice, the petitioner filed an application praying that a certified copy of the inspector's report and a certified copy of the order sheet be given to enable the petitioner t .....

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j, the learned counsel for the petitioner and Sri Ashok Kumar, the learned counsel for the Department. The learned counsel for the petitioner submitted that for initiation of the proceedings under Section 148 of the Act, the essential requirement is, that a notice under Section 148 of the Act should have been served, which in the instant case has not been done till date and, consequently, the entire proceedings stood vitiated as no valid service of notice under Section 148 of the Act had yet bee .....

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rd has been produced to which we have perused and we find the following. A notice dated 25.3.2015, under Section 148 of the Act, was sent by Speed Post at the residential address of the petitioner, which admittedly came back unserved. The record indicates that the Income Tax Officer deputed two Inspectors to make personal service of the said notice upon the petitioner. The Inspectors' report indicates that they went to serve the notice at the residence of the petitioner and found that the pe .....

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call. The report further indicates that the Inspectors tried to serve the notice upon the other members of the staff who all refused and, accordingly, the notice was thereafter affixed at the main door of the clinic. The fact of return of service and thereafter deputing the Inspector are also recorded on the order sheet. We also find that thereafter a notice under Section 142(1) of the Act was issued to the petitioner on 21.5.2015. In the light of the aforesaid facts, the learned counsel for th .....

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the petitioner by refusal. In our opinion, such service by refusal is a valid service under Section 148 read with Section 282 of the Act and Order V Rules 17 and 18 of the C.P.C. The contention of the learned counsel for the petitioner, that the provision with regard to the procedure of service as provided under Order V Rule 17 and 18 has not been complied, is patently erroneous. Order V Rule 17 clearly indicates that when the notice cannot be served, the serving officer shall affix the copy of .....

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ioner himself refused to accept the notice. The Inspector's report also indicates the time and manner of service which is in compliance with the Order V Rule 18 of the C.P.C. In the light of the aforesaid, we are of the opinion, that the service of the notice under Section 148 of the Act was validly made. An alternative submission was made, namely, that the original assessment proceeding for the assessment year 2008-09 has not as yet been completed since the petitioner received the notice un .....

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