TMI Blog2018 (10) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... out any basis ,which creates many doubts and shrouds in the genuineness of the assessment proceeding, hence, we do not any hesitation to hold that the notice dated 20.09.2010 as well as 28.09.2010 by way of affixture never been served upon the assessee and in the absence of statutory notices, the Assessment order can not be held valid and therefore on the aforesaid reasons is liable to be set aside and pursuant thereto the appellant order which is impugned herein also liable to be set aside. Assessing Officer failed to serve the notice to the assessee at his last known address and therefore not in confirmatory with the provisions of the Order-5, Rule -17 & Rule-20 of the C.P.C .- Decided in favour of assessee - ITA No.500(Asr)/2017 - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee at a conspicuous place in the presence of Inspector of Income Tax Sh. H.S. Sajjan. Although the ld. AR Sh. Sudharshan Kapoor, Advocate of the assessee raised many issued qua legality of the notice of its service and affixture order and its affixing as well as with regard to the service of notice on the previous address of the assessee, however, emphasized that it is wondering facts that once the notice on 23.09.2010 returned only on 29.09.2010 then how the Assessing Officer has passed order for affixture on 28.09.2010. 3. On the contrary, except relying upon the orders passed by the authorities below, the ld. DR failed to controvert the submissions of the assessee. 4. Having heard the parties at length and perused th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessment order can not be held valid and therefore on the aforesaid reasons is liable to be set aside and pursuant thereto the appellant order which is impugned herein also liable to be set aside. 6. Even otherwise, in the affixture order it is mentioned that the notice u/s 143(2) of the Income Tax Act, 1961 are not served by ordinary means on the last known address of the assessee, however, from the IT Returns for AY.2003-04, 2004-05, 2005-06, 2006-07, 2007-08 and 2008-9 and 2009-10, it clearly appears that the assessee is showing address as Keshav Nagar, Mithapur Road, Jalandhar which according to our mind liable to be treated as last known address of the assessee, however from the notices, it reflects that the Assessing Officer tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able time and there is no agent empowered to accept the service of the summons on his behalf, nor any other persons on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. 7.4 Further Rule 20 of order-V speaks about the substituted services, according to this rule, when the Court is satisfied that there is a 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 thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. As it is clearly reflects from the chronological dates and events that notice u/s 148 was issued in the name of the deceased assessee on 29th March, 2012 which claimed as has been served through affixture on 31st March, 2012 and thereafter notice u/s 142(1) of the Act claimed as has been served on dated 29th May, 2012 through affixture on the deceased assessee, creates many doubts with regard to the genuineness of the service of the notice on the deceased assessee because if the notice has been served through affixture on 31st March, 2012 then certainly the notice server would have used his due and reasonable diligence for not finding the deceased assessee and would have come to the knowledge about the death of deceased assessee and mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Officer without a notice or in pursuance of invalid notice would be illegal and void and shall vitiate the entire proceedings. In the aforesaid analyzation, we do not have any hesitation to hold that in the instant case, no notice has ever been properly served either u/s 148 or 142(1) of the Act upon the deceased assessee or his sole legal heir. Therefore, the Assessment Order under challenge cannot be sustained and impugned order under challenge liable to be set aside under the limb of non-service/invalid notice itself and hence, the order passed by the Ld. CIT(A) is set aside and the addition confirmed by the Ld. CIT(A) stands deleted. 8. Respectfully fowling the dictum of co-ordinate bench and even otherwise as we observed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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