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2015 (11) TMI 919 - ITAT LUCKNOW

2015 (11) TMI 919 - ITAT LUCKNOW - [2015] 42 ITR (Trib) 39 (ITAT [Luck]) - Non-service of notice under section 143(2) - Held 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 midni .....

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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(assessment year 2010-11). - Dated:- 3-7-201 .....

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essment to be null and void on account of non-service of notice under section 143(2) of the Income-tax Act, 1961 (hereinafter called in short "the Act"). 3. The appeal in I. T. A. No. 894/LKW/2014 is filed by the Revenue against the deletion of penalty levied under section 271(1)(c) of the Act on account of non-sustenance of the assessment order. 4. During the course of hearing of the appeals, learned counsel for the assessee has invited our attention that no notice under section 143(2 .....

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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 .....

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see has neither refused to sign the acknowledgment nor was any effort made by the Assessing Officer to locate and serve the notice upon him. The learned Commissioner of Income-tax (Appeals) has further observed that since there is no material on record to establish that the conditions contemplated by Order V, rules 17 and 20 existed in the case of the assessee, the notice served by affixture is not a valid service. He accordingly held that notice under section 143(2) of the Act was not served up .....

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ivil Procedure for service of notice can only be invoked when it is established that the assessee is not available and the service in the ordinary course is not possible upon the assessee. 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 .....

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dence on record with regard to the service of notice under section 143(2) of the Act within the period of limitation. 7. So far as service of notice by affixture is concerned, we find that under Order V, rule 17 read with rule 20 of the Code of Civil Procedure, the mode of service by way of substituted service can only be invoked when service upon the respondent or the assessee is not possible in the ordinary course. Therefore, it means that the mode of substituted service can only be adopted wh .....

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