TMI Blog2017 (7) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... s no evidence that anyone identified the place as belonging to the assessee before such affixture. It is seen that the Income Tax Inspector has signed as the local independent person but such witness cannot be considered to be a local independent person for the purposes of rule 17 of order V of CPC. Department has failed to prove a valid service of notice on the assessee before embarking upon the assessment proceedings. Since the entire reassessment proceedings were based on assumption of jurisdiction through the issue of notice under section 143 (2) of the Act, which was not validly served on the assessee, we hold that the assessing officer was patently wrong in completing the assessment without effecting the service of notice in accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06/12/2010. Since no reply was forthcoming from the assessee and the case was getting time-barred on 31/12/2010, the assessment was completed under section 144 of the Act. 2.1 The assessee carried the matter in appeal to the Ld. Commissioner of Income Tax (Appeals) and agitated that the assessee had not received a single notice from the Department in respect of the assessment proceedings. The additions were also challenged on merits. The Ld. CIT (Appeals) dismissed the assessee s ground agitating the service of notice and partly allowed the assessee s appeal on merits. Now the assessee has approached the ITAT and has raised the following grounds of appeal 1. That the Ld. CIT(A) has erred in dismissing the grounds of appeal rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H 234, Naraina Vihar, Naraina New Delhi. The Ld. AR submitted that the service of the notice was not made at the last known address by the Department and that the service of the notice at the address which did not belong to the assessee cannot be taken as a service of notice. It was further submitted that since the return for assessment year 2008-2009 did mention the sale of property at 123, Hargobind Enclave, New Delhi, it was well within the knowledge of the AO that the said property was not owned by the assessee on 24th of September 2009, that is, when the notice under section 143 (2) was affixed on the said premises. It was further submitted that when the officials would have visited the premises at 123, Hari Gobind enclave, New De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort as to why the address mentioned in the return of income was that of the property which the assessee had already sold. He has further noted that the assessee did not press the grounds relating to issue/service of notice and lack of proper opportunity. The Ld. Authorised Representative, on the other hand, has submitted that the ground was pressed before the Ld. CIT (Appeals). 5.1 On a careful consideration of facts we find that, admittedly, the issue involved is legal issue and it is a settled position of law that a legal issue can be raised before the Tribunal even for the first time even if it was not raised before the authorities below. In our considered opinion, the position does not change in raising the legal issue before the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the IT department to serve the notice upon the assessee, since the company of the assessee was closed due to Holi festival holidays, and admittedly no effort was made by the serving officer to locate the assessee. 24. Even otherwise, as per order V, r.19A of the CPC, the notice sent by registered post ought to have been sent along with acknowledgement due but admittedly it was not sent along with acknowledgement due. 25. So, from the entire material available on record we have no hesitation in holding that there has been no valid service of notice under S. 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. 5.3 Coming to the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However a perusal of the affixture report shows that there was no independent local person as a witness and there is no evidence that anyone identified the place as belonging to the assessee before such affixture. It is seen that the Income Tax Inspector has signed as the local independent person but such witness cannot be considered to be a local independent person for the purposes of rule 17 of order V of CPC. The Hon ble Punjab and Haryana High Court in the case of CIT versus Naveen Chander reported in 323 ITR 49 has held that the fixation is required to be done in accordance with the procedure laid down in the Code of Civil Procedure, and where in the report of the inspector/notice server, who claimed to have affixed the notice, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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