TMI Blog2018 (4) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... tter issued by the Assessing Officer is in 2015 which was beyond the time prescribed u/s 148 / 149 of the Act. Therefore, the initiation of proceedings is invalid in law so as to assume jurisdiction under the Income Tax Act. Accordingly, the order passed, consequent to the improper issuance of notice by the Assessing Officer, does not have stand in the eye of law. - Decided in favour of assessee. - ITA. No.1445/Hyd/2016 - - - Dated:- 18-4-2018 - SHRI D. MANMOHAN, VICE PRESIDENT For The Assessee : Shri V. Siva Kumar For The Revenue : Smt. N. Swapna, DR ORDER PER D. MANMOHAN, VP. This appeal is directed against the order passed by Ld. CIT(A)-3, Hyderabad and it pertains to Assessment Year 2007-2008. 2. Assessee raised the following grounds of appeal before the Tribunal. The main contention of the assessee is that the A.O. did not follow the correct procedure in serving the notice u/s 148 of the Act and hence the notice served by affixture cannot be taken into consideration and the consequent proceedings are liable to be quashed. 1. The order of the Ld. CIT(A)-3, Hyderabad dated 30.08.2016 is erroneous, contrary to law and facts of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person at the given address, in which event claim of service of notice by affixture is not correct. 5. The A.O observed that the claim of the assessee implies that she is not residing at the address mentioned therein. Since notice was sent by speed post and it was also served by affixture, at a conspicuous place at the given address, the A.O. proceeded by assuming that it amounts to sufficient compliance with the procedure prescribed under law. Thereupon he proceeded to consider the correctness of the capital gains declared by the assessee. Since SRO value has to be taken as the value of the consideration, he proceeded to recompute the capital gains and completed the assessment by determining the total income at ₹ 39,04,780/-. 6. Aggrieved, assessee preferred an appeal before the Ld. CIT(A) wherein the same address was given. It was further contended that no notice u/s 148 of the Act was received by the assessee or by anyone and therefore, notice u/s 142(1) of the Act is not valid. It was also submitted that notice served by affixture on 24.06.2013 by ITI is not valid. It was further submitted that the assessee was staying out of India since number of years and her fath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered as high. Thus the appeal filed by the assessee was dismissed. Further aggrieved assessee is in appeal before the Tribunal. 9. Learned Counsel for the Assessee filed a paper book consisting of three pages, which consists of order sheet noting dated 23.02.2015 onwards, and it was submitted that the order sheet in the case of Smt. Sobha Reddy, maintained by the Assessing Officer, does not speak of a notice issued u/s 148 of the Act in 2013 or the affixture made at that point of time. But there was a separate letter of the ITI wherein it was stated as under: As directed by the ITO, Ward-7(1), I visited the house of Sri. T. Shobha Reddy, 10-3-316/A, Masab Tank, Hyderabad. In the given address when I visited the door was not open and no one responded from inside when I enquired with the bystanders they said that they are not aware of the name of the assessee. With this I affixed the notice of 148 in the conspicuous place on building in said address. 10. Learned Counsel for the Assessee submits that the ITI could have made proper enquiry either with the neighbours or with some responsible person in the locality rather than enquiring with the bystanders which itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (if any) by whom the house was identified and in whose presence the copy was affixed. In otherwords, the Tax Authorities have to make diligent effort to serve the notice and cannot merely ask some bystanders and the ITI is not authorised to simply affix the notice without mentioning the person who has identified the house and the person in whose presence the copy was affixed. On merits also Learned Counsel for the Assessee reiterated the submissions made before the Tax Authorities. 12. On the other hand, Learned Departmental Representative placed before me a copy obtained from the Department of Posts to indicate that on 09.07.2013 a notice was sent to Smt. T. Shobha Reddy by speed post which was within time and since there was no response, the A.O. had to serve the notice by affixture and hence the notice issued is valid in law. Learned Departmental Representative relied on a decision of the Hon ble Punjab Haryana High Court in the case of Ramesh Khosla vs. Income Tax Officer (154 ITR 556) to contend that though the words issued and service are not synonymous, in the light of the provisions of section 114 of the Indian Evidence Act and section 27 of the General Clauses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued on 06.06.2013 and was sent by speed post on 07.06.2013 whereas the Speed Post Booking Journal of Department of Posts, produced before the Tribunal by the Revenue, indicates that no speed post was sent on 07.06.2013 but some letter was sent to Ms. T. Shobha Reddy on 09.07.2013. Thus the proof filed by the Learned Departmental Representative does not match with the facts stated by the Assessing Officer with regard to the alleged notice dated 06.06.2013. Normally a notice prepared by the Assessing Officer will be sent within a week but, in the instant case, as per the Speed Post Booking Journal it was sent on 09.07.2013 i.e., more than one month of the issuance of notice. Learned Counsel for the Assessee placed before the Tribunal order sheet noting which begins from 23.02.2015. It is not the case of the Learned Departmental Representative that the factum of issuance of notice dated 06.06.2013 was also recorded in the order sheet noting. There is nothing to prove that the notice was sent by speed post on 07.06.2013. In fact the A.O. s plea is that a notice was served by affixture on 24.06.2013 though the Department of Posts Booking Journal indicates that the notice by speed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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