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TMI Blog2023 (1) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the period of 30 days as mentioned in the notice u/ s 148 of the Act to file his return of income, the assumption of jurisdiction is vitiated. 3. That where service of notice u/s 148 of the Act dated 31.03.2018 which is claimed to have been served upon the assessee on 04.12.2018 by way of affixture and the affixture report did not contain the name of any local witness who identified the address of affixture, the service by affixture on 04.12.2018 is bad in law and consequently, the assumption of jurisdiction, obtained on the basis of such service by affixture, is vitiated. 4. The assumption of jurisdiction is vitiated because the approval u/ s 151 of the Act was granted by the ld PCIT, Delhi-16, in a mechanical manner on a prefilled standard format, which was not even accompanied by the reasons of reopening recorded by the ld AO Ward 46(4), Delhi. 5. The assumption of jurisdiction is vitiated as the reasons of reopening recorded by the ld AO indicated the fact of deposit of cash aggregating to Rs. 14,28,900/- by the assessee in his bank accounts during the F.Y. 2010-11 and the reasons of believing escapement of income, as required by law I did not exist. 6. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not effected with the statutory provisions assessment made u/s 144 read with section 147 of the Act as bad in law. Reliance was also placed on the decision of the Hon'ble Punjab & Haryana High Court in the case of CIT Vs. Kishan Chand [(2010) 328 ITR 173 (P & H)] for the proposition that in the absence of any local witness service by affixture is nullity. The ld. Counsel placed reliance on the decision of Delhi Bench of the Tribunal in the case of Wg. Cdr. Sucha Singh Vs. Income Tax Officer in ITA. No. 1605/Del/2012 dated 11.04.2017. 4. The ld. Counsel for the assessee further submits that as the notice u/s 148 of the Act dated 31.03.2018 was claimed to serve on the assessee on 4.12.2018 and as the assessment u/s 144 read with section 147 of the Act was completed on 6.12.2018 there is complete violation of principles of natural justice as no opportunity was granted to the assessee either to file his return of income in response to notice u/s 148 of the Act or to participate in the re-assessment proceedings and, therefore, the order dated 6.12.2018 passed u/s 144 read with section 147 of the Act is void and nullity in the eyes of law. 5. The ld. DR relied on the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure. Here provisions of Order V Rules 17 to 20 of CPC are relevant. After taking notice of above statutory provisions, their Lordships of Supreme Court in the case of Ramendra Nath Ghosh v. CIT, 82 ITR 888, observed as under (as per head note): "The Inspector of Income-tax who had to serve notices under Section 33B of the Income-tax Act, 1922, claimed to have served the notices by affixing them on the assessee's place of business but in his report did not mention the names and addresses of the persons who identified the place of business of the assessees, nor did he mention in his report or in the affidavit filed by him that he personally knew the place of business of the assessees. The assessees, however, claimed that they had closed their business long before the notices were issued. On writ petition filed by the assessees, the High Court held that there was no proper service on the assessee and the orders of the Commissioner pursuant thereto could not be sustained. On appeal to the Supreme Court: Held, affirming the decision of the High Court, on the facts, that the service of the notices was not in accordance with the law and, therefore, it could not be said tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordships added "The possibility of his (processor) having gone to a wrong place cannot be ruled out". Local persons of area where the place (house) of the person to be served is situated are to be associated for two obvious reasons. First, that the place is properly identified. Secondly, such report may not be prepared by the process server and other persons sitting in their office. 14. In the light of clear provisions of law, we are unable to hold that service in this case was effected in accordance with statutory provisions. The report of the Process Server is witnessed by Ms. Indu Rani, the Income-tax Inspector. There is no evidence of any independent person having been associated with identification of place of business of the assessee. There is no evidence that the process server or Ms. Indu Rani had personal knowledge of place of business of the assessee and was, thus, in a position to identify the same. In the absence of above material evidence, notice dated 5.3.2001 cannot be accepted as served on the assessee in accordance with law. Constructive knowledge of the above notice cannot be attributed to the assessee. In these circumstances, we hold that assessment made Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough the affixture yet the hurry which he had to make is quite apparent. As pointed out, search had taken place in the year August, 1976, and when no action had been taken up to March 23, 1978 taken recourse to service by affixture can be said only a sheet formality and not the real service as held by their Lordships in different judgements of the different High Courts, referred to above....." 3. Learned counsel for the Revenue is unable to show that there was any refusal of the assessee to accept service as has been assumed in the question referred. On the other hand, the Tribunal has categorically held that no other mode was adopted and steps for service of notice were taken about a week before the time was expiring. 4. In view of the finding of the Tribunal which is not shown to be perverse, the question referred has to be answered against the Revenue and in favour of the assessee. Ordered accordingly." 10. In the case of Wg. Cdr. Sucha Singh Vs. Income Tax Officer in ITA. No. 1605/Del/2012 dated 11th April, 2017 the co-ordinate bench of the Delhi Tribunal held as under:- "5.3 Coming to the facts of the case, it is undisputed that the property located at 123, Hargo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the mandate I.T.A. No. 1605/Del/2012 Assessment year 2008-09 10 of rule 17 of order V of Code of Civil Procedure, which laid down the procedure to serve notice by affixture. Since there was no valid service of notice, the assessment proceedings were held as invalid. Therefore, in view of the factual matrix of the case, it is our considered opinion that the 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 accordance with section 282 (1) of the Income Tax Act, 1961 read with order V rule 12 and order V rule 17 of the CPC. Therefore, on the facts and circumstances of the case, we have no option but to quash the entire assessment proceedings. Accordingly, we quash the assessment proceedings and allow the appeal of the assessee on the legal issue. In view of our adjudication in favour of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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