TMI Blog2007 (4) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... al (for short as 'Tribunal') in ITA No. 3259/Del/2004 relevant for the assessment year 2001-02, the Revenue has filed the present appeal. 2. The brief facts are that Assessee filed his return of income on 31st October, 2001 which was processed under Section 143 (1) of the Income Tax Act, 1961 (for short as 'Act') on 31st October, 2002. Thereafter, the return was taken up for scrutiny and notice under Section 143 (2) of the Act was issued on 25th October, 2002 by registered post at the address given in the return of income i.e. B-226, Vivek Vihar, Delhi. The said notice was returned undelivered by the Postal Authorities with the remarks that "Plot No. - 226 does not exists." 3. Thereafter, another notice was served under Section 143 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the alleged report for non service because, the subsequent notice addressed at the said address has been duly served and accepted by the Assessee and the earlier notice was returned by the Assessee only to defeat the service of notice and make it beyond limitation to escape rigours of Section 143 (2) of the Act and Assessee being at fault cannot take advantage of his own wrong. 7. On the other hand, it had been contended by learned counsel for the Assessee that no notice within the prescribed period has been served upon the Assessee and there is an interpolation on the address of the addressee mentioned on the notice and since no notice under Section 143 (2) has been served upon the Assessee within the prescribed period, the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved on the person named therein either by post or as if it were a summon issued by court under the Code of Civil Procedure. 12. Order V Rule 12 of the Code of Civil Procedure 1908 provides that wherever it is practicable, service shall be made on defendant in person or on his agent. The relevant provision reads as under:- "R.12. Service to be on defendant in person when practicable, or on his agent " Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient." 13. Order V Rule 19A provides for simultaneous issue of summons for service by post in addition to personal service. It reads as under:-"R. 19A. Simul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court within thirty days from the date of the issue of summons." 14. As per case of the Revenue, notice under Section 143 (2) was sent by registered post, which was received back undelivered with the endorsement "No Plot no. 226 exists". Thus, admittedly, notice under Section 143 (2) of the Act was not served upon the Assessee. It may be pertinent to point out that Alphabet ?B? is missing in the endorsement made by the postal authorities. Thus, it stands established that the postman had not gone to "Plot No B-226, Vivek Vihar, Delhi" because, his endorsement does not say that "Plot No. B-226, Vivek Vihar, Delhi" does not exists. On the other hand, it states that "No Plot No. 226 exists". Further, there is interpolation on the addres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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