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TMI Blog2021 (7) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... to the same. Thereafter, last opportunity was given by issuing notice under section 144 of the Act. Since the A.O. did not receive any response, he decided to proceed ex-parte and on the basis of available material passed assessment order under section 144 of the Act and added Rs. 28,52,000/- (out of total amount deposited) to the income of the assessee after allowing 10% deduction towards expenditure. 3. The assessee challenged the assessment order before the Ld. CIT(A) inter alia on the ground that the assessment order completed under section 144 of the Act is not sustainable in law as the no notice under section 148 of the Act was served upon the assessee. However, the Ld. CIT(A) rejected the contention of the assessee and dismissed the appeal filed by the assessee. Against the said findings of the Ld. CIT(A) the assessee has preferred the present appeal. 4. The assessee has challenged the impugned order passed by the Ld. CIT(A) by raising the following grounds: 1. That the Ld. CIT(Appeals)-4, Ludhiana 'Camp Office' at, Panchkula has erred in holding that the notice u/s. 148 was properly served upon the assessee, which is not a correct finding. 2. That no notice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustainable. 5. On the other hand, the Ld. DR supporting the impugned order passed by the A.O. submitted that since the A.O. had passed the assessment order after service of notice under the provisions of the Code of Civil Procedure (CPC), the Ld. CIT(A) has rightly confirmed the order. Hence, there is no infirmity in the findings of the Ld. CIT(A). 6. We have heard the rival submissions of the parties and perused the material available on the record. We noticed that the Ld. CIT(A), Panchkula has set aside the reassessment order passed by the A.O. in assessee's case for the assessment year 2011-12 in the similar set of facts. The findings of the Ld. CIT(A) read as under: 5. I have gone through the facts of the case, the assessment record and written submission filed by the appellant remand report of the AO and rejoinder submitted by the appellant. In Ground No. 1 the appellant his challenged the validity of re-assessment by claiming that no notice u/s. 148 was served to the assessee before the completion of assessment. In this regard, it is noted from a perusal of assessment record that after receiving NMS information the AO issued a letter dated 08.04.2015 seeking informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was also not effected at correct premises of the appellant remains unrebutted on record. In the remand report too the AO has not commented on this aspect. Hon'ble Apex Court in its decision in the case of R.K. Upadhyaya (1987) 3 SEC 96 has explained that "the mandate of section 148(1) is that reassessment shall not be made until there has been service." Further the jurisdictional ITAT in Sh. Balbir Singh, s/o Sh Dharam Singh, Sh. Navpreet Singh, s/o Late Shri Balbir Singh versus the ITO, Ward-1 & 3, Kharma [2019] 72 ITR (Trib) 389 (ITAT [Chand]) held that:- "A perusal of the affixture order reveals that Shri Swaran Singh, ITO, Ward-III, Khanna directed Shri Pamam Vir Singh Duggal, Income Tax Inspector to effect the service of the notice u/s. 148 of the Act by way of affixture under Order V Rule 20 of CPC, 1908 on the conspicuous part of place where the assessee is known to have last resided or carried on his business or personally worked for gain. No address of such place has been mentioned in the said affixture order. It is not clear from where the Income Tax Inspector would come to know about the last known address of the assessee either of his residence or of his wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable in law for the reason that the AO has passed the assessment order without serving notice u/s. 148 of the Act by either by delivery of the copy of notice or under Order V Rule 20 of the CPC. Since the findings of the Ld. CIT(A) were in accordance with the settled principles of law, the department did not challenge the same before the Tribunal. 8. Admittedly, in the present case since AO had not mentioned the father's name of the assessee in the notice dated 31.03.2016 issued u/s. 148 of the Act, the same was received back unserved. So far as the contention of the AO that the notice was served under Order V Rule 20 of the CPC is concerned, the satisfaction recorded by the AO on 31.03.2016 (copy of which is available in paper book) does not establish that the notice was served upon the assessee in terms of Order V Rule 20 of the CPC because the AO has not mentioned the complete address of the assessee including father's name House No. and the premises where the notice was to be affixed. 9. The Hon'ble Supreme Court in the case of R.K. Upadhyay vs. Shanabhai P. Patel 1987 (3) SCC 96 has held that the A.O. cannot initiate proceedings under section 147 of the Act, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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