MECONS COMMOTRADE PRIVATE LIMITED,KOLKATA, WEST BENGAL vs. ITO, WARD 4(2), KOL, KOLKATA, WEST BENGAL

Shri Yash Baid, ld.AR appeared on behalf of the assessee and Smt. Madhumita Das, ld. Sr.DR appeared on behalf of the revenue.

It was the submission by the ld. AR that the issue relates to reopening of the assessment by issuance of notice u/s.148 of the Act. It was the submission that a notice has been alleged to have been issued u/s.148 of the Act on 31.03.2016. It was the submission that such notice u/s.148 of the Act has not been served on the assessee. When this was put to the ld. Sr. DR, the paper book has been filed containing 08 pages, which read as follows :-

It was the submission that the notice has been served on affixation. Ld. AR submitted that the address mentioned in the notice issued u/s.148 of the Act as also in the report of service by affixation is wrong, insofar as the address is not 18 R.N. Mukherjee Road but it is 19 R.N. Mukherjee Road. It was the submission that the report of the service by affixation did not comply with the requirement of the Section 282 of the Act. The ld. AR further drew my attention the decision of the Hon’ble Supreme Court in the case of Ramendra Nath Ghosh (1971) 82 ITR 888 (SC), wherein the Hon’ble Supreme Court has categorically held that the notice can be served even by the method provided under Rule 17 of Order V of the Civil Procedure Code, 1908. The observations of the Hon’ble Supreme Court in this regard are as under :- 9. Rule 17 of Order V of the Civil Procedure Code reads: Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person 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, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. (emphasis applied) 6. It was the submission that as the notice u/s.148 of the Act itself has not been served, the assessment order is liable to be quashed. It was further submitted that notice u/s.142(1) of the Act came to be issued on 29.09.2016 on the correct address of the assessee. Copy of the said notice reads as follows :-

In reply, ld.Sr.DR submitted that she would call for another report from the Assessing Officer.

I have considered the rival submissions. A perusal of the facts of the present case clearly shows that the report of service by affixation is on the wrong address. The notice u/s.148 of the Act issued in the name of the assessee is on the wrong address. There is no proof of service by affixation at the correct address. The witness that has been seen in the report does not have any address. Therefore, even the witness is not called for examination. The envelope which has been shown by the revenue contained the notice u/s.148 of the Act shows that the envelope has been returned with the remarks that “no eastern building, hence, incorrect address”. Thus, clearly the wrong address has been given in the notice issued u/s.148 of the Act and even the affixation has been done at the wrong address. Therefore, clearly the notice issued u/s.148 of the Act has not been served on the assessee. Thus, the notice u/s.148 of the Act issued against the assessee is invalid and the reopening of the assessment u/s.147 of the Act is bad in law and stand quashed. Accordingly, the assessment framed u/s.144 of the Act in the case of the assessee stands quashed.