TMI Blog1980 (1) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... of the IT Act, 1961 made the re-assessment at ₹ 1,02,871. In the re-assessment order, the ITO assessed income at ₹ 10,000 from M/s. Neelam Industries in the hands of the assessee and income at ₹ 82,406 being the concealed income of the assessee from other sources, in addition to the originally assessed income. The assessee appealed and thereupon the CIT (A) Ludhiana had approved the action of the ITO under s. 147(A) r/w s. 148 of the Act, 1961. 3. Aggrieved, the assessee has come up in appeal to the Tribunal. The preliminary point raised by Sh. Sood, the ld. counsel for the assessee, is that notice under s. 148 was not validly served on the assessee. From perusal of record, it appears that notice under s. 148 was sent b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in the Court-house and also upon some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. The submission of Sh. Sood is that unless the ITO is satisfied within the meaning of order 5 r. 20 of CPC that there is reason to believe that he assessee is keeping out of the way for purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way, he could not order the summons to be served by affixture. His argument is that he satisfaction on the part of the ITO should be well reasoned. From the facts of this case, it is clear that the ITO passed an undated order to take re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service or that for any other reason, the summons cannot be served in the ordinary way. We do not agree with the Revenue's contention, that there is an absolute discretion to the ITO to take recourse to the provisions of order 5 r. 20 of CPC and that discretion cannot be questioned by the assessee. No doubt, the provisions of order 5 r. 20 of CPC gave a discretion to the ITO but that discretion is to be exercised by him only when there is material which can lead the ITO to have reason to believe that the assessee is trying to avoid the service of the notice or that for any other reason the notice can not be served in the ordinary way. There is nothing on record to show that the assessee in any way is avoiding the service of the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retion given to the Court under the provisions of order 5 r. 20 of CPC does not mean that the Court can order service by affixture ordinarily. It is only when reasonable ground exists for believing that the defendant is keeping out of the way to avoids service or that for any other reason it cannot be served in the ordinary way that substituted service should be ordered. Satisfaction of the ITO, therefore, means that he should satisfy that the precedent condition of order 5 r. 20 of CPC did exist before taking recourse to the provisions of order 5 r. 20 of CPC. There being no material in this case to justify the satisfaction of the ITO, we hold that he satisfaction having been recorded by the ITO in its undated order is superfluous. Then th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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