TMI Blog2015 (11) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... issuing a notice by affixture, the assessment cannot be made to be valid on account of issuance of notice under section 143(2) of the Act in time. Undisputedly there is no evidence on record with regard to the service of notice under section 143(2) of the Act on the assessee within the prescribed period. As apparent, the notice was issued by speed post on the last day of limitation, i.e., September 30, 2011 at 15.19 hours, as such there is no possibility of its service on the same day. We accordingly find ourselves in agreement with the order of the learned Commissioner of Income-tax (Appeals) who has rightly held the assessment to be illegal and void ab initio. - Decided in favour of assessee. - I. T. A. Nos. 893 and 894 /LKW/ 2014(assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the office copy of the notice under section 143(2) it is written that notice has been served by affixture. The person who has affixed the notice is the Income-tax Inspector and the notice was affixed in the presence of the notice server. The date is mentioned as September 30, 2011 but no time is mentioned thereon. Learned counsel for the assessee has further contended that the the learned Commissioner of Income-tax (Appeals) has examined the issue with regard to the validity of service of notice under section 143(2) of the Act within the period of limitation and has held that the notice has been issued on September 30, 2011 at 15.19 hours. The probability of serving the said notice by midnight on the same day is very remote. With regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. But in the instant case, according to the Assessing Officer, first time notice was issued through affixture as well as by speed post. Therefore, it cannot be held that notice under section 143(2) of the Act was timely served upon the assessee. 6. Having carefully examined the orders of the lower authorities in the light of the rival submissions, we find that undisputedly notice of hearing under section 143(2) of the Act was issued on the last day of limitation/prescribed period for issuance of notice under section 143(2) of the Act, i.e., on September 30, 2011 at 15.19 hours by speed post. Therefore, the learned Commissioner of Income-tax (Appeals) has rightly held that probability of service of the said notice by midnight on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of notice under section 143(2) of the Act in time. Undisputedly there is no evidence on record with regard to the service of notice under section 143(2) of the Act on the assessee within the prescribed period. As apparent, the notice was issued by speed post on the last day of limitation, i.e., September 30, 2011 at 15.19 hours, as such there is no possibility of its service on the same day. We accordingly find ourselves in agreement with the order of the learned Commissioner of Income-tax (Appeals) who has rightly held the assessment to be illegal and void ab initio. 8. Since the assessment has been annulled in the quantum appeal, penalty under section 271(1)(c) of the Act is not sustainable in the eyes of law and we accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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