TMI Blog2016 (11) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... s is upon the Assessing Officer to establish valid service of notice under section 148 of the Act and he failed to do so, he cannot assume valid jurisdiction to frame the assessment under section 147 read with section 143(3) of the Act and once the reopening is not valid, the assessment framed consequent thereto deserves to be annulled. In the instant case, since a proper notice under section 148 of the Act was not served upon the assessee, the Assessing Officer could not assume jurisdiction to frame the assessment. Therefore, the assessment framed by him is bad in law - Decided in favour of assessee - I. T. A. No. 261/LKW/2016 - - - Dated:- 31-8-2016 - Sunil Kumar Yadav (Judicial Member) For the Appellant : Rakesh Garg, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, onwards and, hence, the notice being served through affixture was proper is totally misplaced and misconceived inasmuch as, the notice under section 148 dated March 25, 2013, issued by the Assessing Officer was neither issued nor served in accordance with the provisions of law, the whole premise on which the Commissioner of Income-tax (Appeals) has moved, is totally out of the context, the reassessment framed be quashed. 6. Because the Commissioner of Income-tax (Appeals) has erred on facts and in law in upholding the addition of ₹ 15,00,000 as unexplained cash credits in the bank account, which addition is contrary to facts, bad in law and be deleted. 7. Because the Commissioner of Income-tax (Appeals) has over looked th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal authorities with regard to service of notice under section 148 upon the assessee but he did not receive any response from the postal authorities, rather it was made to understand that they will give a reply with regard to service of letter to the sender only. Through letter, the assessee has specifically asked the Assessing Officer to show the evidence of service of notice under section 148 of the Act. My attention was also invited to letter written to the postal authorities which is appearing at page 17 of the compilation. The objection with regard to service of notice was again raised before the Assessing Officer during the assessment proceedings and copy of the same is available at pages 10 to 12 of the compilation of the assessee. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the lapses on account of service of notice under section 148 of the Act were covered by the provisions of section 292BB of the Act. 7. Having carefully examined the orders of the lower authorities in the light of rival submissions and the relevant provisions of the Act, I find that assessment was reopened pursuant to the directions of the Commissioner of Income-tax (Appeals) through his order dated May 10, 2011. Through that order the Commissioner of Income-tax (Appeals) has issued directions to the Assessing Officer under section 150 of the Act to re-initiate the proceedings under section 148 of the Act for the year under reference by recording proper reasons and after seeking proper approval of the superior authorities as per la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice of notice by affixture. 9. In this regard, I am of the view that by issuing directions for service by affixture, the Assessing Officer has lost sight of the provisions of Order 5 rule 20 of the Civil Procedure Code (CPC) because the mode of substituted service can only be adopted, when the authorities fail to get the notice served upon the person by ordinary means. The ordinary means to serve the notice are either through the process server or through postal authorities. In the instant case, on the very first day, a notice was issued through process server and the process server without getting any authority from the Assessing Officer for the service of notice by affixture, has served the notice by affixture. As per the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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