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2016 (11) TMI 1048 - ITAT LUCKNOW

2016 (11) TMI 1048 - ITAT LUCKNOW - [2016] 51 ITR (Trib) 589 - Validity of reopening of assessment - non valid service of notice - Held that:- On the first date of notice, i.e., March 25, 2013, a notice was stated to be served by affixture upon the assessee. Though the assessee has raised objection with regard to valid service of notice but the Assessing Officer has not brought anything on record or specifically dealt with it in the assessment order. Similar objection was also raised before the .....

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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 For the Respondent : Amit Nigam, Departmental Representativ .....

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Income-tax (Appeals) is contrary to facts, bad in law be quashed. 2. Because the notice issued under section 148 of the Act, 1961 dated March 25, 2013, and the reassessment framed thereafter being without jurisdiction, bad in law be quashed. 3. Because there being no issue and service of notice under section148 of the Act, 1961, as required by law the entire reassessment proceedings initiated and reassessment framed are bad in law and be quashed. 4. Because the notice under section 148 having no .....

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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 .....

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." 2. Through grounds Nos. 1 to 4, the learned counsel for the assessee has questioned the validity of the reopening of the assessment on the ground that notice under section 148 of the Act was never served upon the assessee. In support of this contention, the learned counsel for the assessee has invited my attention to the reasons recorded for reopening of assessment which are available at pages 20 and 21 of the compilation of the assessee. Reasons were recorded on March 19, 2013, and, the .....

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on with regard to service of notice under section 148. In the letter, the assessee has stated that it made efforts to verify from the postal 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 s .....

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repeated requests, the Assessing Officer has not brought anything on record with regard to service of notice under section 148 of the Act upon the assessee. He, however, framed the assessment under section 147 read with section 144 of the Act against the assessee. 4. In the assessment order, the Assessing Officer has recorded that notice was sent to the assessee through speed post as well as through the Income-tax Inspector (ITI) and when the assessee denied to receive the same, the ITI was left .....

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ntative, on the other hand, has submitted that assessment was framed consequent to the directions of the Commissioner of Income-tax (Appeals), vide order dated May 10, 2011, therefore, the Assessing Officer was not under obligation to record proof of service of notice under section 148 in the assessment order. Moreover, the assessee has joined the assessment proceedings. Therefore, the lapses on account of service of notice under section 148 of the Act were covered by the provisions of section 2 .....

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the year under reference by recording proper reasons and after seeking proper approval of the superior authorities as per law. Consequently, reasons were recorded and approval obtained from the competent authority. But, while issuing notice under section 148 of the Act, the Assessing Officer has issued a notice on March 25, 2013, by speed post. Besides, he also issued notice through ITI and according to the Department, the said ITI and the process server has served the notice by affixture. Copy .....

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ice of notice under section 148 upon the assessee, but he could not succeed in getting proper response from the postal authorities. Whereas the Department did not make any efforts to get this evidence or the certificate from the postal authorities with regard to service of notice under section 148 of the Act. When the assessee has raised the objection with regard to valid service of notice under section 148 of the Act upon the assessee, the onus is upon the Assessing Officer to establish that no .....

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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 of Order 5 rule 20 of the Code of Civil Procedure, specific orders are to be passed for service of notice by substituted means. Bu .....

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