TMI Blog2007 (4) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Raj Kumar Bhatia, statement of Shri M. Goenka, Proprietor of M/s. M. Goenka and Company was recorded under Section 131 of the Act on 28.01.2000. In his statement, Shri M. Goenka stated that he used to issue bogus bills of sale and purchase of the shares. He further stated that the transaction of sale of shares of M/s Ashoka Commercial Pvt. Ltd. made by the present Assessee was a bogus one. On the basis of this information, the Assessing Officer issued notice under Section 148 of the Act after taking approval from the Commissioner of Income Tax. This notice was sent through Inspector along with notice server. Inspector found that the factory was closed up to 31st March, 2002 due to Holi festival holidays as per the information by the security guard. 4. The security guard refused to receive the notice and ultimately the notice was served by affixation. A notice dated 28 March, 2002 was also sent by registered post on 28th March, 2002 but same remained un-complied with. 5. Subsequently, notice under Section 143(2) of the Act dated 4th June, 2002 was sent in response to which Chartered Accountant of the assessee company appeared and raised the point that the actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and lastly, the Chartered Accountant to the Assessee participated in the assessment proceedings and thus the Assessee waived his right to challenge the service. It is not the case that Assessee was not heard before completing the re-assessment proceedings. 12. On the other hand, it has been argued by the learned counsel for Assessee that due to non service of the notice on the Assessee the re-assessment proceedings culminating in the order dated 30th January, 2003, purported to be passed under Section 148 of the Act are bad in law. It is also contended that admittedly no notice was tendered either to the Assessee or his agent nor the same was refused by either of them. 13. The short question which arises for consideration in this case is as to whether notice under Section 148 of the Act has been duly served upon the Assessee prior to the commencement or completion of the re-assessment proceedings or not. 14. The relevant portion of Section 148(1) of the Act, reads as under-: Issue of notice where income has escaped assessment "148.(1) Before making the assessment, reassessment or re-computation under section 147, the Assessing Officer shall serve on the assessee a no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed." 19. 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. Simultaneous issue of summons for service by post in addition to personal service.-(1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain: Provided that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 of the I.T. Act, 1961 for the asstt. year 1995-96. There we met the Security Guard on the gate who informed us that there are Holi festival holidays in the company upto 31.3.02 and refused to receive the notice despite our repeated requests. We further requested him to give us telephone No. of any of the Directors/Managers of the company to enable us to get him directed to receive the notice, which also he did not give. We were left with no alternative but to serve the notice by affixing it on the gate in the presence of Mr. Ram Chander, a labourer, working in the adjoining factory. This may be taken as service of notice by affixure. Sd/- sd/--28/3/02 Inspector, Ward 12(4), Zahid Hussain New Delhi-1. N.S 22. As per Order V Rule 12 of the Code of Civil Procedure referred to above, wherever it is practicable, the service has to be effected on defendant in person or on his agent. Admittedly, in the present case, notice under Section 148 of the Act was not tendered to the Assessee nor the same was refused at all by the Assessee. It is an admitted case of the Revenue that when the officials of the Income Tax Department went to serve the notice under Section 148 for the ass ..... 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