TMI Blog2016 (8) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... tsna (CA) For the Respondent : Bhawani Sankar (DR) ORDER T. S. Kapoor (Accountant Member) This is an appeal filed by assessee against the order of learned CIT(A), Bathinda, dated 19.03.2013 for Asst. Year: 2003-04. 2. The appeal was earlier dismissed for non prosecution vide Tribunal order dated 19.11.2013, however, the said Tribunal order was recalled vide Tribunal order 19.5.2014 and the appeal was listed for hearing on merits. 3. The assessee has raised various grounds of appeal. Ground Nos.1 to 4 are legal issues by which the assessee has raised objection to the service of notice u/s 148 of the Act. Vide these grounds of appeal, the assessee has contended that no laid down procedure as per CPC has been followed and also the affixture of notice in the absence of independent witness was not a legal service of notice. 4. As the assessee has raised jurisdictional issues, therefore, the assessee was directed to proceed with his arguments on jurisdictional issue. 5. At the outset, the learned AR invited our attention to learned CIT(A) s order at page-4 and submitted that learned CIT(A) himself has admitted that the notice u/s 148 was issued on 30.03.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither by the assessee or his agent. Under Order V, Rule 17 of the Code of Civil Procedure, the affixation can be done only when the assessee or his agent refuses to sign the acknowledgement or could not be found. Here, in the present case, it is very much apparent from the records that no effort was made by the Income-tax Department to serve the notice upon the assessee and no effort was made by the AO to locate the assessee. Accordingly, from the entire material available on record ITAT have no hesitation in holding that there has been no valid service of notice under section 148 of the act upon the assessee as the same was neither tendered to the assessee or his agent, nor the same was refused by either of them. (Para 9) ITAT hold that since there has been no proper service of notice on the assessee, the entire reassessment proceedings, resulting in the order dated 30.12.2008 are bad in law and the order passed u/s 148/143(3) dated 30.12.2008 is quashed. The other grounds of appeal become in fructuous and are not being adjudicated upon. (Para 9) Conlcusion: Reassessment u/s 148 shall be invalid when no notice is tendered either to Assessee or his ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against the Revenue and in favour of the assessee. Ordered accordingly. This Bench while holding camp at Jammu has decided a similar issue in the case of Sh. Suresh Kumar Sharma Vs. ITO, in ITA No.118(Asr)/2015. The relevant findings of the Tribunal as contained from para 7 onwards are reproduced below. 7. We have heard the rival parties and have gone through the material placed on record. We find that it is an undisputed fact that as per order sheet entries the Assessing Officer, Ward 1(3) received approval for reopening of the case u/s 147 on 23.3.2012 and on the same date notice u/s 148 was issued and the same was affixed on 30.3.2012 at 34 P, Trikuta Nagar, Ext. Jammu. The affixture notice dated 30.3.2012 is placed at paper book page 14. The order sheet entries do not reflect any effort on the part of Assessing Officer to serve the notice by post or by other ordinary means of service as required by section 282. Section 282 requires the service of notice by post or courier or in such manner as provided under CPC, 1908 in order V, Rule 12 to 20. Various decisions of the Tribunal and Courts as relied upon by the learned AR has held that before resorting to the manner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 19 provides that where a summon is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summon has been duly served or order such service as it thinks fit. At this stage, the attention is also drawn to Rule 20 which provides the circumstances under which the substituted service can be effected. For the benefit of this order, the provisions of Rule 20 are being reproduced as under : 20. Substituted service - Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house and also upon some conspicuous part of the house (if any) in which the defendant is known to have last r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Assessing Officer to the effect: that service by affixture was made in terms of Rule 20. So it appears that the so-called service was in utter disregard of the provisions of Order V Rules 17,19 20. Accordingly, it is held that there was no valid service of notice issued under Section 142(1). Regarding the second notice under Section 142(1), there is nothing on the record as to how the notice was served. The assessee has totally denied any service of notice under Section 142(1). In view of the above discussion, it is, therefore, held that jurisdiction to assess under Section 144 was not validly assumed and consequently, the impugned assessments under Section 144 were void ab initio. In the present case we find that the admittedly no effort was made by Assessing Officer to serve the notice in an ordinary way. Further there is no order passed by Assessing Officer to the effect that service by affixture was made in accordance with law. The so called notice through affixture is in utter disregard to Rule 17, 19 20 of order V of CPC. The case laws relied on by Assessing Officer do not relate to the issue of notice through affixture and therefore are not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
