TMI Blog2020 (1) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears that the Inspector in the first instance itself served the notice on assessee by way of affixture. Rule 20 mandates that before proceeding with substituted mode of service of notice/summons, the Presiding Officer has to record satisfaction that the notice/summons could not be served in ordinary course. In the instant case, it is not emanating from the records that due and reasonable diligence was exercised by the Assessing Officer for serving notice in the normal course before proceeding with service of notice by way of affixture. As from the records before us it is not emanating that the AO has recorded satisfaction as envisaged under O5 R20 of CPC that the notice could not be served on the assessee in ordinary course and henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A)-53, Mumbai dated 15.10.2018 for assessment year 2010-11. 2. The assessee has challenged the reopening under Section 147 of the Income Tax Act, 1961 (in short the Act ) on the legal ground that notice under Section 148 of the Act was not validly served on the assessee. The assessee has further raised a legal ground that no notice under Section 143(2) of the Act was served on the assessee after filing of return of income. 3. Shri R.C. Jain Shri Ajay Daga appearing on behalf of the assessee submitted at the outset that the impugned order is an ex parte order, however, it is amply clear from the assessment order that reopening has been done after a period of 4 years in a manner contrary to the well established principles of nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nobody was available at the premises when the Inspector had visited the address available with the Department. As regards notice under Section 143(2) of the Act, the learned DR pointed that after issuance of notice under Section 148 of the Act dated 31.03.2016, assessee did not comply with the conditions mentioned therein, hence notice under Section 143(2) of the Act was issued to the assessee on 17.06.2016. 5. I have heard the submissions made by rival sides and have perused the orders of authorities below. I have also examined the documents furnished by the assessee in the form of Paper Book. The primary objection raised by the assessee challenging validity of reopening is that notice under Section 148 of the Act was not validly se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixture. 8. The provision of Section 282(1)(b) of the Act provides for service of notice/summons in accordance with the Code of Civil Procedure, 1908 (in short CPC ). Order 5 Rules 17 20 of the CPC deals with the situation where the notice/summons could not be served in the ordinary course and the notice/summons is to be served by way of substituted service. The relevant extracts of provisions of O5 R17 R20 of CPC are reproduced hereinbelow :- 17. Procedure when defendant refuses to accept service, or cannot be found Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined for emphasis by us) 9. As per R17, the serving officer has to show that all due and reasonable diligent efforts were made to serve the assessee/defendant with the notice. Mere statement of the process-server that the defendant/assessee was not available at his residence is not sufficient. Thus, the Assessing Officer has to show that reasonable number of attempts were made to serve the notice on the assessee and the process-server visited the address available with the Department at a time when the assessee is expected to be present at the available address. Before proceeding with substituted mode of service, the Assessing Officer is also required to show that if the assessee was available, he has refused to accept the notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also challenged validity of reassessment proceedings on the ground that notice issued under Section 143(2) of the Act was not served on the assessee. From the assessment order, it is observed that assessee had filed reply to the notice under Section 148 of the Act on 16.08.2016. Thereafter, no notice under Section 143(2) of the Act was served on assessee. In the assessment order, only reference of notice under Section 143(2) of the Act is dated 17.06.2016. The notice under Section 143(2) of the Act to be valid has to be served after filing of return of income by the assessee. The Revenue has not brought on record any evidence to show that notice under Section 143(2) of the Act was served on the assessee after 16.08.2016. The Hon ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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