SMT. NALINI SHYAM MOUNDEKAR,NAGPUR vs. ITO, WARD- 4(1), NAGPUR

96 ITA Nos. 516,5178518/Nag/2014, IN THEWNCOME TAXAPPELLATE TRIBLNAL NAGPUR BENCH NAGPUR BEFQRE SHRL SHAMIYAHYA ACCQUNTANT MEMBER AND SHRLRAMLAL NEGL JDICIAL MEMBER ITA. Nos. 516,517 S18NNag/2014, Assessment Year 2003-04,2004-05 & 2005-06. Late Shri Shyam Anand Moundekar; LH Smt: Nalini Shyam Moundekar, Nagpur: PAN AICPM6ZSSD Appellant; The Income-tax Officer, Vs Ward-4( 1), Nagpur: Respondent: Appellant by Shri KP. Dewani_ Respondent by Shri A.R. Ninawe. Date of Hearing 23-03-2017. Date of Pronouncerent 278h March; 2017. QRDER PER_RENCH: At thc outset #e note that there is 0 delay of 202 days in filing these appeals by the assessee for the concerned assessinent years In the application for condonation 0f delay the aszessee has contended as under 1= The appeals filed by assessee are beyond time. The delay in filing appeals has been caused under peculiar circumstances which were beyond the contol Tof assessec. 2 The first appeals were represented by late Shri M. Mani, Advocate 04a before CIT(A)-1,Nagpur in the months of December,20013 to 0 Jno # February, 2014. The appeals of assessee came to be disposed off by dismissal by Hon ble CIR(A)-1, Nagpur vide order [4/02/2014. The appellate order were received by Advocate late Shri M. Mani on 28/03/20143 3 Lale Shri M. Mani, Advocate was seriously ill and ultimately has expired on 18/10/2014, The aforesaid appellate orders received by Advocate M. Mani were misplaced in his office on accolnt of his illness which resulted into his death after a short time. The aforesaid 92 2 ITA Nos. 516,5178518/Nog/2014 appellate orders were forwarded to assessee'$ office in the first week of Decciber; 2014 by the staff in the office of Advocate Shri M. Mani after demise of Shri M. Mani, Advocate. The assessee after receipt 0r orders has got prepared appeals and filed the same on 15/12/2014 The delay of 231 days in filing appeals is for the detailed reasons 38 explained hereinabove. The agsesgee has acted promptly and diligenlly and immediately filed appeals soon after the knowledge of appellate orders was made known to her. 4 It is respectfully submitted that delay occurred under the aforesaid peculiar circumstances constitutes 4 reasonable and sufficient cause: The delay was on account of demise of the counsel and failure on part of staff in office of late counse} to inform asgessee about the fate of appeals which constitutes reasonable and sufficient cause. In view of above assessee could not be said to be negligent and hence there could be no intention for delay in filing appeals 5_ It is settled law that the expression "sufficient cause" within the meaning of section 5 of Limitation Act should receive liberal construction $0 as to advance substantial justice when no negligent or inaction is imputable to party- I1z the facts of the present case no negligence on the part of assessee can be seen. The assessee places reliarce on the decisign of Hon ble Apex Court in the_case_reported af 167 ITR 471 (SC) in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors. 6 The assessee encloses herewith letter received from Shri Mahavir Atal delivering appellate ordcrs on 03/12/2014 and also explaining the reason for delay in communication of appellate orders to assess. 7 In view of above, it is humbaly submitted that delay occurred due t0 demise of counsel nd failure on the part of staff in the office of the deceased counsel to communicate about the fate of appeals and to take action for filing appeals It is sufficient cause for condonation of delay in filing appeals. 8 Considering the above factual position, it is humbly prayed that the delay in filing the above appeals be condoned and appeals be admitted for adjudication on merits. 2 We have heard both the counsel O1 lhe issue of condonation of delay. We find that the reasonable cause has been attributed to the illness and death of the earlier Advocate Shri M Mani . Considering the overall facts and circumnstances 0f the case, we contone lc delay and hence the appeals are admitted On 95 ITA Nos, 516,5178518/Nog/2014 3 At the outset we note that one common iSSUc raised in all these appeals is the assessee' $ challenge to the validity of reopening: The common grounds in lhis regard are 4s under The notice issued us 148 of [.T. Act; 196[ is illegal invalid and bad in law and consequent assessment fiamed 1/s 144 r.w.s. [47 of [LT. Act, 1961 is liable to be cancelled. 2 The notice issued u/s [48 of IT. Act; 1961 in the case of assessee has not been served on assessee in accordance with law and th consequent assessment framed thereupon is illegal, invalid and bad in law and liable t0 be cancelled 3 Reasons recorded for issue of notice us 148 of 1T. Act, 1961 having not been provided to assessee the assessment framed is liable to be cancelled: No reasonable opport unily of being heard is provided to assessee M1 and this consequent assessment framed thereupon is liable to be cancelled. 4 At the outset inthis regard learned counsel of the assessee submitted that the assessee 's challenge to tie validity of jurisdiction qua invalidity of gervice of notice i8 on identical facts a8 in the case of another axsessee of the same group, namely, Arunkumar Anandrao Moundekar In [TA Nos. 274 275Nag/2015 vide order dated Sh January, 2017. Learned counsel submitted thal the facts of the case and the order of learned CIT(Appeals) qua this issue is identical a5 in that case. Learned counsel submitted that in the said case this Tribunal had quashed the assessment on the ground of lack of validity of notice: Hence learued coungel submitted tbat-the same may be followed 5 Per contra learned DR. though supported the order of leared CIT(Appeals) but did not dispute the fact that the circumstances in the present case and the facts therein are similar t0 the one dealt with by this Tribunal in the case of Arunkumar Anandrao Moundekar (supra) PELI 99 ITA Nos, 516,5178518/Nog/2014, We have carefully considered the submissions and perused the records In this regard we may gainfully refer to the adjudication by the Tribunal in the Above case %5 under #9, Brief facts of the case encompassing the issue relating to the issue of notice and the assessee 5 challenge thereof has been recorded by the AO in the assessment order as under 4 survey action W/s 1334 was conducted in the Moundekar Group on 24.11,2008. During the course of survey proceedings; some documents pertaining to assessee and his business were found and impounded. A copy of all such documents was given to the assessee. 2 Thereafter; notice Uls 148 in the case for the below mentioned A.Yg. were issued by the ITO Ward 4(2), Nagpur; and served by way of affixture, On the below mentioned dates, Name of assesgee. A.Ya Date of service of notice. 26.3.2009 263.2009 26,5.2009 26.3.2009 263.2009 26.3.2009 Sh Arun A Moundekar Sh:_Atun AMoundeker Sh_Arun"A . Moundekar Sh: Arun A. Moundekar Sh Arun A. Moundekar Mls Laxmi Anand Builders Developers: Ms Laxmi Anand Builders Developers Smt_Vandana Moundekar 2003-04 2004-05 2005*06 2006-07 2007-08 2003-04 2004-05 26.3.2009 2007-08 26.3.2009 3 The notices were 8ent for service through & notice server but the assessee refused to accept the notices: Hence, an Inspector of Income Tax 1a5 also sent along with the notiee Server to get thc nlices served on the aSsessce Thc Inspector 0l Incomc Tax served Lhe noliees by affixlure. The ntices %erved and & copy ofthe Inspeclors rcpor1 is made part f the prder 214 Annexure 1 8 2 rusp. The case wils assigred [j Is 127 ol" Ihe [Icoine Tax Act, 1961. [l} the 010 the 14O) Ward 4( 1) Nagpur in [hnc: Thitynth af July, 20019. Tlic/ . 0t) 18.7.2009, 41 [clle #iS SCII lo the assLssc*: Covnlirm whelher Ihc assesscc has tilted in respnsc: Ic) noliee Us {48 ind il'nol [v show cause aS tv why tcc 5 ITA Nos 516,5I7&S18fNag/2014. prosicttlin pluccedinys L s 270 ('("shofel [Y be initiated fur willfil faifurc tl} [ile Ll1u tetuTt ot' inceme . I"at" ilsScsScl vide this Olliec dalcd 21.7.2009 subhitlel Ihzll assesse I1zs T1(I reeeived [Ene' Tloliees issued (. $ 148 &f the Ineonl" Tax Acl, 1961. Then On 22,7.2(0V. Ihe 45SC5SC€ wzs informcd that the nlices U; Is 148 04 the Income 'Vax Act were' duly scrved in YQur cises {or Ihc heltw mentioned Asscssnent Yeers On 26.03.09. b} #rly V/ aflixture, in Lha" pre"SencL Of tio #itnesSes, This oflicu hzts all 1kee Tccessary eviclenec 10 prove Uhat 1hc Ilices W/ $ |48 has bcen pranerly served: The issesste vikle his reply Jated 29.7.2009 %till mnaintained Lhal the noliccs Hve nol I*n rceived b} Lhl' iisscsscl. Tien 0l1 5.8.2009, n0liee Uls 142(]) was agai1) scni 10 Ule' asscsscc mentioning wll the delails 1hat 4 erVc]' @ction uls 1334 #Fcar cffhct 4 in 10)r? Case C1 24.11.2008, During the %ourse' (f surve} proceedingx SUme documenls pertaining [0J JOU were found und impounced A 2'OPy Qf' all such dlocuments ha alreudy' been given to }u. Considering wsur reply duted 29.7.2009 Vok} ret1r HF" tiled 2$ 139 urdl (he documents found und seizud. during. the ourse of Survg}" {ire cOnielel'ed {ts the: material ciluhlc' 07? record und it is prepused that assexsment wDuld be cpleted by afforcing Jou %f an oppartnity Qf being heard to state vouF" €isse cnd t0) explain the documents fond and impounded during the {'QmrSe of s6fVEy Uy 13334 of the IT Act, b)' WAy (' ixsue 0f this noticc Ws 142(1) ) In lhc Sac totice cerlain hasie rlocuicnts Were &lsv called /or; whicll are iS under: {j) A cupy olrclurr 0/ inconl' Iiled Us 139 {or the ^ Y. 2003- APPEL ; 04 to 2007 -O&. along with) all thc supporling docuinens. nolc on business actit vity. (iii) Books 0l accounts for lhe A.Ys. 2003-014 Io 2007 -(JR. A cupy 0f hank %' stutewent |or the A. Vs. 20().3-04 10 2007 -08 However instesd 0f filing these: basic dcuments the :xxessee iLQilin objeclcd 10 1hic: scrvice ol nolices. On 67.8.20109. !lic: @emxe] of" thc wssessce appeared and Iiled lelter Qf aulhority The crunsel tYxb told hat thc Dcparlmcu has ZLL Lie nccesszry' cvidecc 1o prove Uhat linc #Qliccs Uis ONi 7o ITA Nos. 516,5178518/Nag/2014. 148 huvt' bccn preperly scri Ihe Inspeelors FCperL do larily thal the aSSeSSlC rdusedl to eccept Fhe Intices ailc} the noticcs #FLrl ulse Ieared oll' wljcn a/tixed, Iti tacl: thie ITQ Wael 4(2). Nagpur; it1 his renarks hxs alyo noled 1hal iier the nolices #eT4 scrvcd hy affixlure, Uc 'LssesSce' i15 iell 45 his ( uunse] TF" Ln} Iell intormec that 1he notices 1,l.$ 148 #Cr served by affixturc und ic) accept Ilic: Sunt, AmeXuc & , 2 docs scltle Elie: contentia) (l thc assessce 1hat nanices were: TI)L Scrved. Iven Ihc €Olnscl o8" the #SSCSSCL #uS shown 1 nspectors report ed alst} El no1[Cc (s 148 t0 juxtity thal Ihc Holiccs have been properl} setvcd, In IacL he eunduet of' the "y5c55ee dcs indicate: the imenlions (} th: #5s1ssc [1(1L 101 coneratl #ith the: Dcpartmnen( and 10 crcate unneeessnry liligalion witholll in} base' or Lrualla. esicering Llne: dact lhal CvEi #lict Dcing in forined by thc A, 0 abcwut Uhe service ofnoiices b} a/lixtute'. Bul til] the: 4late' of" the' order thc Esscssce hus 1OL #ubmidled #ny sf the above tallead /or tlocumenls, excepl for rciterating the Iaet lhal [llices (s 148 have nol #tn Served and the 4 0 cannot isslk: Iltice? [4201) calling for documents Lrtaining lo period mnore Lhan (hree )cars prior 14} lhe preVious Ycir 7vM 7 An adjournicnl Ias Solghlt or On |7.#.2uJug anci lhe: datc was Tixed Icr 20)' ,8.2009} , Again on 20.8"-204H5} ; uljornmcm 1445 Icyllested and the cas: #V45 udjoumerl tor 27.8.2009 . ^;Yjin (1 27.8..20(j4 . adljojurnment Iw2lS soLlhl Hor ancl tht Cist' 11{IS {idjourned Lo) 2,91,20(U . Noe" attended on 2,4.2009 #nd nJ0 submission 'pvis irnishec. Aguin 21 {@)li4'< Vi; 1 42(1.)) and Thuice (Vs 274 [; W_ 9 271 01} (b} #cLS [ssled {HIZ 20,10}.20109: Fixing the Lasc For henring Om 30. 10.2009 iltic cixo iL N74A#IAAFIS Us 131 435 isxued Ich TIT 102 XTA Nos_ 516,5178518/Nog/2014 17.10,200Y 14) prrduce all lix LlJlLHI}en;> cllld 1i) Ecle' Inhices issleu Qm 01 $ [421) As expected Fll) #cUlneMls; _ 8lt callfec Fcr. icfc' nlolices issled (I:s 14201) #Crc Viled. (Hn 3.11.20009, [he ilkyessel allended without n; o" tlic: dclmnnets called tor bY' the Deparimeii, Suill; 4 stalemne'I1l 0. 131 #S Tecorded zWId 1hc lLiSc SSEC #as speilieally asked [c) producc all thc dncumens latest hy 6,14.20009 The ixSSoCC assUr cl 10 explain ull the inpounded doclntnls Q1 6.11.2009 but neither thic: jSxoSitl tor the Counsel tor' the aSScscC #tlended nor AII}' cxplanilionidocuments wen Liled. CXcLpl Lor adjournment Iellcr. 8 From thc above narratcd facts. it C2LIZ he inferred !hal the asscssee has scant rcgard for the Income Tax proccedings and has no explanation Lo lilc bcfore (he Department in respect of the querties raised: explanation seuglt On impounded documents by the Departmenl: henec_ it IzlS proposed 1o the assessee vide this Oflice notice lalecl 6.i1.2009 to complele the assessment (Iis 144 0l the 1. 1. Acl For passing Order UJs 144. il IaS infermed that Uhe rcturn {t" incOme filed {J / $ 39 ilnd Ihe hoks #n docunents imprundec during ilit' coursl al" survey are bring Cmsidered a% material available 01 rectrd e #.s /irther" itformed that Uhi: hcing Utie' last opporluit} oltered tv You ana llic addition Un tlic points incntionel i#) the nolice 14; 'propused [t #x5 Inenlioned Bhal it_the_@Ssessee L4 2IML5 (11 seate anylhing: hc should givc it in wriling with documcntary cvilence h; 16.11.2009. On 16.11.2009. thz: #5scSn€1 suhmitted cttcl' Thal Inc has 'Iadc an application inder RTI for supply of Inspectors report and 1 Copy nlice Uls 148. The #s5cs,ee vide this Office lcttci 16.11,.20f19 , was 3f Ealcgorically made {Warc lhal thtc proceedings undcr thc Ineomc Tax Act Giiiil KTI Et' separate and [. 'I; procecdings cunnnot bl #lalled He wr; %kso) 7wp Inactc' #are Ulnal Uhe RLYYESSCC Cul vert #ell cOInt' and peruse tkic: recorcis uf" thc Department in Tespect Qf servict of nolices and IValS also inforned that the Dcpartmnent is n01 Iiliing 147 complelc: thic: proccedings sihonl giring vou an opportunity of" being heard, He W{ily also inforicd [lial iht: reasois (or reopcning CALAC be given Lc1 :Uli 44 iJLF Juaiz: nchl [iled iIY Tedurn of in) t0 noEice Us 148 anel lhc ] )cparIincIl i5 bound h} thc dccisiin 0l respuuse thie Apex Courl reporled in 254 ITR 19. The Iinal opportunily 05 granled 1o the assessee For 20,11.2009. None attended On 20.11.2009 , bui 1hc Counsel of: be; assessee #ppcared on' *211.2009 and {yain reiterated that nolices havc nol been scrved_ 10_ Upon assessee'$ appeal leared CIT(Appeals) affirmed the AO's order in this regard by making following observations 665.1 The A.R, of the appellant has filed 3 written submission wherein the AR has mainly challenged the validity of the service Of notice u/s 148 through affixture, hence contended that the notice served u/s 148 is not a valid service, The AR of thc appellant contended thal since there is no ITA Nos_ 516,5178518/N09/2014 Ic } there is no valid assumption of valid service of notice, therefore, L$ 144 of the Act. Therefore, the jurisdiction of' passing the order has challenged the consequential order passed uls 144 by way appellant as bad in luw. The assessee has placed reliance on ol making additions Court in the case of CIT vs Tayab Ali the judgement of Hon'ble Apex 66 ITR 147 (SC) The AR of the Mulla Jivaji Kapasi reported in has also referted t0 the provisions of Sec 282 of the IT Act appellant of the AR is that notice u/s 148 has not been served 1961, "The contention 'provision for service of summon issued by post. Further, the AR states in order V of by Csrt under the Code of Civil Procedure are provided The aforesuld provision provides the procedure Civil Procedure Code. to be 'followed for valid service of summons under various rules required Order V On the basis of facts and evidence on record the contained in Order V of Civil Procedure for service of procedure prescribed under complied with in the case 0f the assessee notice by affixture has not been In View 0j the above, there is no valid service of notice issued Ws 148 of the IT. Act, 1961. appellant has also placed reliance o the decision of ITAT, 5.2 ~The of DCIT Vs K.G; Singhania in ITA No. Amritsar Bench.in. the case gra {T; 281/2821ASR/2008 reported in 126 TTJ 37} and decision ofITATeAS TTJ (AGR) 346.Thus, based on thee judgements: Bench eportedtjp 426, jurisdiction assumed: by the: AC:u/sxa-#vt Phle the assessee has submitted that the there was no valid service of notice Ws 148 of the 144 is bad in law as IT. Act, 1961_ considered the submissions of the AR and the 6 [ have carefully order of the AO. action ufs 133A of the LT. Act 1961 WaS conducted in 6.1 survey Ol1 24,11.2008. During the course of the Moundekar Group of Cases Survey action; documents pertaining to the business of the assessee were The copies of the documents impounded found, which were impounded: appellant by the AO. The assessment Was re-opened were provided to the 148 within the-meaning of Section 131_of the Act: by issue of notice uls appellant on 26.03.2009. The Notice W/s 148 was issued and served on the sent simultaneously for AYs 2003-04,2004-05, notices were first time The AO in Para 2005-06, 2006-07 & 2007-08 through the Notice Server: 3 of the assessment order has recorded a finding that since the assegsee the Notice Server; an Inspector of denied to accept the notice from deputed to e ffect the service on the assessee by way of Income Tax was of notice and the copy of Inspector' 5 affixture. The proof of service order #S Annexure 1 & 2, Repo:t are forming the part of the assessmient notice WJs 14201) datetl 18.07.2009 was respeciively: Subscquentiy, a of the assessec on thze impounded issued calling for explanation lo4 ITA Nos. 516,5178518/N0g/2014 Notice was senl by RPAD to the assessee but the assessee documents_ the notice &nd objecied to the service of notice Ws choose not to reply to there was 8 change in the 148 made by affixture: Subsequently , ITO Ward 4(), Nagpur in the month of jurisdiction of the case to the uls 142 was again issued to the 2009 On 05.08.2009 Notice July, fof ihe dctails asked for Vide notice dated 26.03.2009 assessee calling Once again instead of filing the relevant which remained un-complied the service of notice by affixture. The details, the assessee objected to assessnent order relevant finding of the AO as recorded in Para $ of the is reproduced below [334 1I# condueted In Foun Casg Qn 4 #trvCy action us 24,1 E.208' During the course % survey proceedlings/ same dccnmach 4 cohy c" ci such tf} wou #ere found and impounded pertuining Considering Yor reply dated docunents has already been given tv Jou [39 anc the ducuments found und 29.7.20n9/ yonr returns tiled W" 4re consieterec LIS' {he material scized ' during 'the 'eonnse . %f Swve) propxred that usxexsment would be fJI record wid It ic #Veilahlv opportwnity _ of heing heril to State rumpleted by ffoeling yoW pf an impoundec' during the cnd t' erplain the documents founel andl Foitr c{n U61334 &f Ihe IT. Acl hy wuy of issue %f this ntice (OUrSe Qf survey' Vs' 142(1) ) ntrzI Finally, the AO vide letter dated 17.08.2009 informed the assessee 6,1 compleled on the basis of the return of thal the assessment would be income and other material impounded during the survey action for want did of any compliance on the part of the assessee, However; the aseestteet on the impounded material and reiterated that the not file any explanation affixture is not valid. Thereafter; service ` of notice Ws 148 by appellant on 17.08,.2009 and adjournment was sought byi the the AO, The details Of adjoumment subsequently which were allowed by asgessee, which were allowed by the AO are elaborately sought by the order and the relevant finding in discussed in Para 7 of the assessment this regard is as below : Aw odljnurnmnent was SO} Igtu fw nn 17.8.2009 and tlv diue IES 7 -2(n9, udjourminen} #" requested and {ixrc fiw 20'.8..009). 4 gcin (Wj 20,3 1VCES' ndjourned for 17.8.2009. Aruin On,27.X;30U"V odjvurenaled {hc ec # ! 2.9}.200J, "nmle: eteraled OH un2/ #he cise 1(t' tcljourned [0 sought for { 10 ITA Nos 516,5178518/Nog/2014 !YcWtic : I;'' 1#"{0j Irct subrwission {" fiw"hishcedd Agiw { 2 Q.200V (trc/ M) {s.5x2'r/ ~) Jo) .(4y {ixing [he }74 1', 27[ '1 < {h1 2:6 UX- WlofiC {' Us 7'. Wswmxot ' 6 1J8 ;o isl Ll CUESL fow" netiri}ig orl 30. [0.~(V tukcl < w'41 txle icx 1jcl' sotices [wued Z7.[0.Zuns It} {r(t {itct tf{ Xll?' (fak WWt {f: Vn colled for. vickl' ncices issed As expeeted 130) docinicnfs, { {'3 1420). 'hc (ssesse2 Qitendec #ithout {tny Of 44268) #'pr2 filel On 4l.2nog, Un Stil: LI stelement Ui 4 13] #DS the documens called fur by the Depurtment cisked t0 produce all the atl the {ssessee 1NAZS specifically recorded essured IQ explain ull thee Ialest by 6,11.2009. Tlte (exec' docurmenrs nelther the Ussesspe nor fhe Qh} 6.V.2onV bw/ inwotmided docmments explcncttiowdocuments #ert #li Uxpxce atfemdled ROT {XXXh' Cvwnsel for Jiled. excepl for adjotrnnteni leuter: the assessee failed to comply with the statutory notices 6.2 Since issued by the AO during the assessment proceedings and also failed to file impounded material found during the survey action the explanation on the the A0, therefore pEoceeded to complete the best judgement assessment uls 144 of the if. Act; 1961, The AO; after ,having analysed the material available . fecord ncluding the impounded maletia}_made the additiognof' the head Incoie from Business' and Rs.14,61,900T- Rs, ;.6,86, 1,690/- under under tle head ; lacamo-from qther sources' Rs,28,000/- under the head #Income from House Property" , Rs.25,000/- under {he' head "Incomie from: docunentation work" and Rs.1,30,000/- under the head "Income from other a5 it is unexplained investment The AO has discussed the issues on sources' were made in Para Nos, 10 to 18 of the the basis of which the additions assessment order: lt is quite manifest from the above Ihat there was & proper service 7 appellant refused to accept the notice from ofnotice u/s 148 of the Act The who visited the business premi= ses of the assessee; the Notice Server AO deputed an Inspector to effect the service of notice Since; therefoff atehe € the appellant present at the business premises also refused t accept the statutory notice Us 148, therefore the authority concerned was not effect service other than by way of affixture. The left with any alternative to of the Inspector and the Notice Server are duly found placed on repOrts that the appellant and the staff present at the record, which clearly reveal reluctance to accept the statutory business premises had shown their total notice from the authorities The AR of the appellant has not brought out any to the facts available on record The facts available on evidence conlrary clearly demonstrates the non-CD- records including the relevant reports Thc facl lhxt the AQ for want of vperative attitude of thc appellant. constructed to pass the assessment ordet compliance from the appellant #'05 1o5 Omi o6 11 ITA Nos, 516,5178518/Nag/2014. ex-parte Ws 144 of the Act, also shows the non-co-operative approach ofthe appellant towards official proccedings. It is perused from the record that were confeired upon the appellant to explain the ample opportunities confents of the impounded material found during the survey action; but the appellant chose not to avail such opportunities The ratio of the decisions relied upon by the appellant is not applicable to the facts of the case of the The facts of the case make it abundantly clear that there was no appellant procedural lapse in service of notice Ws 148 ofthe Act: The service through i5 the most preferred mode of service prevalent in the Notice Server department followed by the Service by Post and affixture. In the case of present appellant, the initial conduct of the appellant itself was non CO- operative; therefore; the AO had rightly adhered to the mode of service by ultimate motto of the AO was to serve upon the appellant a affixture_ The valid notice, which was initiated through the Notice Server &nd it is but for and the statf; the alternate methods of the non-operation of the assessee were adhered to. It is not 4 case where service through service of notice Notice Server would have caused any genuine hardship to the assessee: Jt is, therefore, immaterial from the point of view of assessee whether notice is seived 0n him through Notice Server or by Post: What is material is that & 'valid notice ghould b gerved -pon the: assessee. Since Ihere was_& Survey action conducted at the business premises of the assessee, which has resulted into impounding of certain' incrimination papers and documents, onus therefore , was On the appellant to explain the contents of such impounded material, which he has failed t0 discharge by not accepting a valid notice issued and served on him by the AO. The appellant, thus, has refrained from availing an opportunity conferred upon him in the interest of principles of natural justice due to which AQ was constrained to pass exparte order uls 1, therefore, hold that the service of notice uls 148 w3s a 144 of the Act; 'valid service through affixture; in the [acts ad circumstances of the case, therefore, the AO has assumed a valid jurisdiction t pass order Ws 144 I.W,5. 147 ofthe Act: 1L.Against the above order the assessee is in appeal before the ITAT. J4 T1 #n 12.The contentions of the learned counsel of the assessee are summarized as under AO has observed that notices uls 148 of IT. Act, 1961 are "A) served by affixture 0n 26/03/2009. In the assessment proceeding assessee has submitted before A.O. that notice is 148 are not served A.O. has noled the submission of assessee at para $ & 7 of assessment order: A.0. without disposing the objection of assessee 12 ITA Nos. 515,_ 5178518/N0g/2014. 10) z8 tO service of notice u/s 148 and not providing reasons recorded for notice issued Ws 148 proceeded to frame assesgment U/s 144 of IT. Act; 196]_ B) Submitted before A.O. that nalice Uls 148 is not served On 21/07/2009 AO. Page-2, Para-4 On 29/07/2009 A.O. Page-2, Para-4 On 17/08/2009 A.O. Page-3, Fara-5 On 23/11/2009 A.O. Page-4, Para-8. Before Hon'ble CIT(A) it was submitted that notice is not seryved On assessee and he has never refused t0 receive service of notice from his side. CIT(A) Order Page-2. Notice us 148 were never refused by assessee or his agent for D) servlce; Assessment years under consideration are 2003-014 to E00s-06, 'Surtey" Wvs 133A-was made.0nr24/1H/2008, Notice Ws '148 are Assited on' 26/-03/2009 Affixture-is ,made.Qn 26/03/20096+~* Enough limitation fo serve the notice us:I48 otTI Act 1961 was available with AQ. afmore than one years for Asstt: Year 2003-04 has hurriealy 74 U4 #oh74RSUYiWi and for other years much nore than that A.O. resorted to process of affixture for no valid justification Reasons recorded not provided to assessee by learned A.O_ and E) even by Hon 'ble CIT(A) Request made before AO. on 25/01/2010 A.O. Page-4, Para-8. Request made before Hon ble CIT(A) 19/11/2010 FSE) Reliance on WIgbefore CIT(A) CIT(A) Page-2&3. is settled position of law that service of notice u/5 148 G) It On assessee is to demonstrate by revenue on challenge of same by assessee by adducing legal evidence. Onus is On Tevenue to establish valid service of notice ws 148 On a5sessee to a8sume jurisdiction: Reliance on: (2000) 242 ITR 0141 (Mad) Venkat Naicken Trust & Anr, V} ITA Nos, 516,5178518/Nag/2014 13 Vs. ITO. 142( I) notice wcre seni by RPAD 43 is evident H) Subsequenlly Assessee has responded before from observation of AQ. at page 2 Assessee had A.Q. and submitted objection for service of notice: before A.O. aS 1S evident from requested for adjournment 8 AO. has also recorded statement of assessee observation at para 131 of 1,T, Act, 1961 . AIl assessnent proceedings Ws in received by assessee and 142017143(2) notices and summons were iTo assessmeni proceedings: Nothing on record that responded to assessee is avoiding service of notice of department: service of notice Ws 148 of IT, Act I) In the case of assessee of aflixlure. The valid 1961 is observed to be by A.O. by way biotivedby affixture can be only by following Provisions service of Sf Order V of Civil Procedure Code 1908. it wa5 submitted that there is no valid J) In the case cf asscssee and thus notice Ws 148 cannot be said service of notice by affixture tohave been served Qn a8sessee , Act 1961 provide for manner K) Provisions of sec; 282 oF LT; fact that notice has not been of service of notice. Undisputed served by: post. served in person on assessee nor it hasbeen of Rule 17 to 20 of Order V of Civil Procedure L) Provisions procedure of service of notice by affixture; Code 1908 provide for provisions of rules of Order V Evidence on record would show that are not complied to conduct that of Civil Procedure Code 1908 valid service of notice U/s 148 has taken place. made reasonable attempts to service notice in M) 4,0. has not justified to resort io make substituted regular manner and was not Even alleged substituted service of notice is not service of notice: of notice us 148 of Se accordance with Iaw and is no valid service I.T. Act 1961. 7* Reliance on; No_ 289(Asr)2013 in the case of Sh; ITAT order in ITA Parshotam Singh vide order dated 04/08/2016. ITAT order in: ITA No. 11/PN/2013 in the case of Anil ii) Khatri vide order dated 31/03/2016. ITAT order in ITA No. 5221/Mum/2014 in the case of Shri iii) Sanjay Badani vide order daled 09/09/2014. Io3 { 14 ITA Nos, 516,5178518/Nag/2014 iv) (2015) 43 ITR (Trib) 0635 (Delhi) Sumanglam Sewa Awam Educational Samiti vs. CIT. (2010) 328 ITR 0173 (P&H) CIT vs Kishan Chand. VI} (2010) 1 ITR 0001 (Agra) Arun Lal vs ACIT: (2008) 296 ITR 0333 (Delhi) CIT VS_ Hotiine International vii) (P) Ltd. viii) (1973) 89 ITR 0136 (All:) CIT vs. Satya Narain Poddar (1977) 110 ITR 0027 (AlL.) Jagannath Prasad & Ors. Vs: ix) CIT & Ors. (1971) 82 ITR 0888 (SC) CIT & Ors; Vs. Ramendra Nath Ghosh: xi) (1973) 88 ITR 0374 (Cal:) Rameswar Sirkar vs. [TO. xii) (2000) 242 ITR 0141 (Mad:) Venkat Naicken Trust & Anr: Vs, ITO N) Inspection of rccord by assessee revealed that there i8 nQ report" 'Of notice server to: the effectathere was any refusal tq receive notice bY assessee. Inspectors report is not Verified by afidavit of service oof: "Ad"has examined irspector on oath a; required under Rule-19 96, Order V ot Civil Procedure Code 1908. The AO. having not followed the provisions of Rule 19 there is no valid service of notice Ws 148 of I.T. Act; 1961. P) Assessment record does not indicate that A.O. has declared that notice U/s ]48 is served in the case of assessee in ters of Rule 19 of Order V of Civil Procedure Code 1908, Then no valid service can be said to have been made in the case of assessee. In the Teport of Inspector names of twQ Witness are referred The address of such witness indicates that both the witnesses are almost 6 Kms_ away from the premises of assessee iopposite direction from each other: Report of Inspector does not states that have identified the place or was know: to him witnesses personally. Alleged service is nol in accordance with law. R) Provisions of Rule 19 are not complied with in the facts in case of asgessee. No evidence was shown to assessee on the the basis of which it can be said that service Wus in accordance with law, (c1 O2M 15 ITA Nos, 516,5178518/N0g/2014. S) Mere information of noticc issued U/s 143 is not sufficient to aS5umne jurisdiction to assess W/s [48 of I.T. Act 196[. Reliance Q; 1} (1977) 107 [TR 0409 Johar Forest Works vs. CIT, T) Observation of CIT(A) that no procedural lapse in service of notice Ws 148 is contrary t0 evidence on record, Ratio of decision relied upon before CIT(A) are clearly applicable to the facts in the case 0f assessee, U) Reasons recorded not provided to assessee. Non providing of renS(15 recorded before completion of a5sessnent results into assessment framed as bad in law and deserves to be quashed. Per contra learned DR. relied upon the orders pf the authorities below 1A. [ have- carefully considered the submissions and perused the' records. find that notice uls 148 issued in lhis case is dated 26-03-2009 It has been claimed that the assessee has refused to accept the notice and hence affixture was made on 26-03-2009 itself: In this regard before proceeding further I may gainfully refer to lhe relevant laws relating to service of notice in this regard a8 under [Service ofnotice generally, 282.( )The service of notice Or-tmnon or requisition Or prder or any other communication under this: Act-(hereinafter in this section referred to as "communication ') may be made 'by delivering Or transmitting 4 copy thereof; to the person therein named (a) by pOsl or by such courier services as may be approved by the Board; Or (b) in such manner a8 provided under the Code of Civil Procedure, 1908 1i0 8 16 {TA Nos_ 516,5178518/N09/2014, 11p (S of 1908) for the purposes of service of suminons; Or (c) in the for of any electronic record as provided in Chapter IV of the Inloriation Technology Acl,2000 (21 of 2000); or (d) by any other means of trensmission of documents a5 provided by rules made by the Board in this behalE: (2) The Board may make rulcs providing for the address (including the mai} or electronic mail message) to which the address for electronic in sub-section (1) May be delivered referred to or communication transmitted to the person therein named For the purposes of this section; the expressions Explanation "electronic mail" 444 electronic mail message" shall have the meanings 28 egsigned to,hen in Explanation to section-&A 8f the Infomation Technology Act, 2000 (21 of 2000) "XWJ 15 Issue and service of summons a8 per Code of Civil Procedure Summons summons may be isgued to the delendant to } When a suit has been duly instituted appear and answer the claim on a day to be therein specified: no such wummons shall be issued when the defendant has appeared at the Provided that presentation of the plaint and admitted the plaintffs claim; [Provided further that where a summons has been issued: the Court may direct the defendant {p file the written statement of his defence, If anyarJhe date of his appearance Jnd cause &n entry to be mate"to that effect in the summons } Curt A defendant to whon a summons has been Tssued under:sub-Tule (1) may appear- (2) (a} In petson; or (b} by a pleader Guly instructed and able to answer all material questions relating to the suit, Qr (c}by a pleader accompanied by some person able to answe' al such questions. {3} Every Such summcns sha"te signed by the Judge or suct' ctficer ashe appoints, and shall be scaied with the seal of the Court 25- PN 17 ITA Nos; 516,5178518N0g/2014 1122 2 Copy or Statement annexed to summons by a copy of the plait or, if 50 permitted, by & concise Every summons sham be accompanied statement 3 Court may order defendant cr plaintiff to appear in person seeg reason to requite the personaf appearance of te defendanl the (1) WVhere the Court in Court on the day therein specified summons shall order him to appear in person reason to require tha personal appearance of the plaintiff on the {2) Where Ihe Court sees s3M6 day, it shali make an order for such appearance; to be ardered to appear in person unless resident within certain limits Nc panty No party shall be ordered (o appear ir person unless he resides- within the local limits of the Courrs ordinary original jurisdiction; Or {a) Iimits bul at piace le8s than fitty or (where there Is railwzy & steamer (b) without such for five-Bixths cf the distance between communicatian or other established public conveyance than two hundred the placg where he resides and the place where the Court is situate) less mites distance from the court-nouse. 5 , Summons,to.be either to settle {ssues or for final disposal determira , at the' time Of issuing the Summons, Whether it shall be forithe The Court shail of the suit; and the sumimors shall contain & settiement 0f issues only. Or for the final disposal direction accordingly: Court of Small Causcs, the sumtons shall be for the finu} 4da [rovided that, in evely Suit Jleard by 'poosa] of he suil, 3 Fixing day (or appearance of defeudant shal be fixed #ith refererce I te current business Of Ihe day lor %hu appearaner ot the defendam und the cinc necessaiy for the scrves of Ihe the Cotin_ tlie place: ot' rcsidence 0l tle defendan thc deterdaJt sufticient lirng l0 enable hit to SUIIILORS; &d llle tly shall be #0 tixed 35 [0 allot uppear and answer Orl sucl dwy- 7 Sumrons to order defenciant to produce docuniemts relicd on by him zhe dcfendati Mq produce a11 documents in: his Thle sunnons to appEal and an1swer shall order possessioi Q,power upon which he intends Ig,Tely in suppart ol his case: 8, (Jn issuc Of sumons fnr (inal dispasal defendant to be direcicd t produce his witnesses Qf the suit, iL sial] also direci the ccfendant to produce; WIere tbe sunimons is (or the fillal dispcsal oll witnessts upon whose cvidencc he infnds l0 relay i1 suppott on tle duy Fixed for his appeatunce ofhis Casc Scrvicc f Sutnans 9 Delivery Of frarsmissicn al sumnrwons {ur service jurisdiction of the: Colrt in #hici tle suit is insrituled. 41" {l! Where the defendant resides witluin tir 18 ITA Nos. 516,5178518/N0g/2014. aCcFpl thie service o the [hat jurisdicticn #ho 15 ernpowered IV J1at5 an 1g0111 Tcsidenl #jhin Lzc: deliveled r SCTHL 10 Ihc proper Ulic: 5/J1I17O/S shall , unless thc (.0ur (herwis direets slilth/nic)tiS_ ofliccr TV l: served b} himn Or <lie (f his subarlinuares # (ourf omer Ilaan Lhot in #lch #lic: slit is insituted, (Z) "h propct" oflic-i 11374} hc iII atlicer of L0) hint by ptsl Ur in such othir 1nanntr #here Ie: iS such 1l7 officet. tlle summuns njay bee scnt zlrhal. as th Cour may direci. [0. Made of servicc shall be made by delivering o" (endering copy thereof signed by Lhe Judge Service of Lle sudamons Or such otficer as he: appoints in Ihis bchalf_ #nd scald with 1he sal f1he CanuL 1 . Serves On several dcfendutits Jefendants than OuE, Scrtes Of thc suminons otherwrise prescribed, #hen ther are inore Swve @S shall be made on each defendunt; 12 Service Io be On detendunt O1 perse wlen practicable. ur on his agcnt on the Jetenant in perschei; unless he hat% J ugenl Wvhtteves it 15 pricticable Serves shull b made service, i7 #hich case serves an such agenl shall be suificiEsL etpowered [0 acccpl I3 'Servict Dn @Leju by !hun defendanl caries 0n business # 7/' pusjiss or #ork ng4in5 person ihb does Hol reside witin ibe Ica} 4I) In 4 suit relatijg tu: wy fron #hich the summons Is iss1d sclvice on Any nnanaper {r irits"Qf the jurisdiction 4Jl th €oun curiies JT such busitiess {r wnrk for such persou svithin Z0L; #hu, at tlu: Iignc wf setyes; Tersomally ~uth limits, shall be dcened godd service, of this rule the mastcr of # ship shall be deened tv be {he agcnt af the owter 42) Fol" the purpse or chartered 14, Service vn @gent in charge in suits for immovable prupcrly obtain relicl respecting or compensalion for wrong lo. immavable properly. service Whcre jn sui [0s the defendanl has nc agent enxpoweted 10 acceni VII the defendan ilt person. and pannot be made the service: it Iay l: Made: on Hly agent ofthe defunndanL il charge of 1lc properry: 22LIS. Where service may be un an adult mnemnber of dcfendanrt family Prom his residetce at the Lime when the service f Wherc in ay suil tlve defendant j5 absent to be eliicled olf his at.his residence 1d theri' is no likelihiod af his being found surimons is slight agent empuwered t0 accept service of the wvithin reasonable tite pnd he has IlG? at the tesidence be tade On any adull member of uhe fanily, whether male or sumnions 0n his behalf gervice may feinale, wha is residing with him. A seryatl is not a memlcr of the family within thc Ineaning of uig rule: ] Explanation _ [6. Person served t sign acknowledgemen copy of ae sumnmons tO Lhe defeidani personally: or [0 Whcre thz serving ofticcr delivers or tenders rqjuie rc [he sipuatuiFc Of lhc perxon to wham) the copy Jn @gCll or Othey Ferson (1 his behali, Ie shall 4f rvic Endcrscd on the arizinal slrons is 50 delivered {r Uerilered tn a/n ieknowledgen #hcn deteraiant Tctuses lo acccpl ~rvie_ #xr carnol l7c: found 17 Froccclur aEcrcsnid refiscy 10 sign Ihc: dclinalalnl {1 his Jgcm Qr sucil utlizt A'crxn) XS #} Zcrc: the Vl 19 ITA Nos. 516,5178518/Nog/2014 ackzlowledgement; QT where Ihe serring orlicer alier using ill due and reasonstle diligencc; CaJnot his residence at tlyc" [Ime ##hg] servict is soupht to be Jiru thz defenclanl. 22/who is absenl from ellicied on hir at his residenet #4 there is iQ likeliioqd ul' his being Jould al 1he residerce #ithin & 10 zcepx ervice Vf 1hc SuMTICFIS on his bchall: "asonalsle 1imc] and (hctc is 1102 #gUnt cmponered be mxilc: . Ihe" servilt Qificer shall ultix cOpy of thc IRC)r any othct' petsom Dm1 #hon; stryice Cxl uther CUnspiclous pan of Uie hnuse ir) which lhie defcnctaill SlIIAIIMCHS Qn thc pulei dodr UF Some on busincss Qr [rsonally' wrkt (jr gains. und shall 1hcn) return Ihe original orginarily resides (r curries tas issued, Ivith a [Lpo/7 endarsed 1hcreon or anexed Ihcrelo 3tating that 1c the Cwur1 ftom #hich 11 under #hich hie dia 50, wd the ninl and address pf he has 80 aftixed the CDpy> Ihe circurstanccs the person(il any} by whoni (he bouse was idertitied and in #hose prescnce the copy was altixe - &. LndOrSeMcnl 4/ timtc ad munner' nf scrvice II which the sumnons has been surved Inder rule 16, cndorst The serying ollicer shall, in all cass @FT nr Lc} (he ariginal sumnOn;. r[u1T sfaling the Qr an/CX Or Clisc 10 be Endorsed Dr Omilexcd: I45 served. 24 tht: nanje: alrd addrcss Qf Ihe tirne #llch} ;tAL thc naimti' [I}: whiich the slifiQnS pcrson (i€ arly) identilying the person scrved and witiessing tle dclivery or tender of thc slknmons 19. Examination cf #urwing oFliccr here 1 suinmons is retumed under rulc ! 7. the Courf shall. fthe Iurn unckcT Ihat rul has #ot bccn rified by the atfidavit of the serving ofFicer, und nay:; if it has been s0 verilied exumiine the scrving or causl him tn bx so exaiined by wnarher (aurt_ touching his pruceedings. and mnay ficer' &n oxh_ lake such futher cnquiry in thc matter u5 it thinks fit; and shall either declar that the sunions has been duly served or order %ucl} service a$ it thinks fit 221 19A, Simuhtaneuus issue uf sunons fqr service by pOsr iJ addition Io personal service (I} The Cout shall, in additlon t '&d simultareously with, the issue of Sumons fot gervice in thr 9 10 /9 (Iolh inciusive), alsu dirccl Ll Sununon l0 bc served by rgistered M1a/M1C1" provided in rlcs t0 the defendint Or his agent cmpowvered t0 accept the pest, acknowledgeinent due_ addresscd where the defendant ur his agcnt actually &n voluntarily resides ur caries on servicc Zl tht' pjace businss or personally works Ior' gain: this sub-rule: shall require the Coun Iq igske slinnons for service by Pruvided that nothing in registerec pust_ #here JI) dhe cirumstannes Of the €ase: the Cclrt cosidcrs it unnecessay_ acknowledgement purparing 10 b? ~igred by Ihc dcfendan 01' his agent is teceived by (2} Wlen 4n aticle containing the SLET[Tho)IZS is rtccived buck by lhie Couri wimh 4n the Loui (r the pocustaal been mdc hy pOSta] employct l0 the elict 1hat the defendant or cndoorscinem purporling t} Iave wlen tendered to his agent had refused to take delivery ol the postal article cantaining the sumitans shall decFare: thut thie surTIInons had been delly serveu on the him,. the_Cgu issuing tle sumioIs defendant: NX Frovided Ihal #here 1he summons {43 properly udressed , prepaid ad duly sent by registered pOSL, acknowledgement duc; the declaration relcrred io in this sub-rule shall be made notwithstanding [he fact that the acknowledgerent huaving been lust or mislaid, Or far other reason has been reccived by the Couni within thirty days from the date of the issue of tL stnmons}: 20}, Subsuituted scrvices {I) Wlere Ihe Court ix stisficd that there: is reasai [0 belicve that thc defendant is keepiag Qut of of avuiing SLrvice_ Qr Iliat for "ny Olher rrwson the SuIJMOIlS Ca/o)l be the: way finr (lie pFus? Served inthe Ordinary W3y, The Court shall order the suinnwns To be served by alfixing # cOp} thercof i11 solme cunspicuass place in Ihe Court-housc; and also !pn some conspicuous p3/7 uf ulte houstif QM 20 XTA Nos, 516,5178518/N0g/2014. 115 last resided ( carricd a busiltess Ur prsonally worked 9I} in ihich kh defendant is K4otnl EQ have Iir gjin, or in such uther manner a5 tlvg Couri thinks fiL: orders serrice 1} MIT avenisemnent in the Co1tt acling Linder sub-tule( [ ) 12[(1A} Whtre i1 th localily in which Ihie shzc/ l le daily mwspuper circularing [l} Spr7et- tlix: nctspupel volunlurily residcd carried 0n busincss ar personally defendan: ,s lust known [0 hate acally &nd #cuked for gain,] Order of the Court shal: be as etfectual as if (2) Ellect of substifuled servicc-Service subslituted by iF had heen made on Ihc detendant prsonally to he tixed Where service is substituted by (J) Where service substituted timt for appcarance CourE shall tix such tinje far the appcarance Of the defendan[ a5 the cazc may order 0l tle Cout; the rcquire ] further gainfully refer the following case laws: 16.In this regard may CIT vs. Ramendra Nath Ghosh 82 ITR 888 (SC): (1) (Head Notes only) Admittedly the assessees_ have not been personally served in these: sec whether te allcged serviee ~by cases_ Therefore; One ha5 to accordance with law. The contentian_af the_assesgees aftixation was in thex had no place of business: The report wag that at,,the_"elevaut timg fention the namcs and" aduresses Ofihe?tt "of the serving oflicer does not who {dentified the place of business of assessees; That efficer person does not mention in his report nOr in_ the affidavit filed by him that he of business of theassessees. Hence; the knew the place Bervoceally netiee mus: Baceldto be not in %ccordance bethuled law. The service hi8 having gonc to > wrong place cannot be tuledeout afhe possibility of iEColche facts ofihe case very slaborately after High Court after going come to the conclusion that the examining several has SitnerGeer Seavico Hence, i i3 not possible to hold service made was not a proper opportunity to put forward that (he assessees had beeri given 8 [roQet_SEPOGhosk_'o PCIL(1967) their case as required by s 33B.Ramenda 66 ITR 414 (Cai) TCSTR affirmed who identified 4 A Notice ~Service by affixture-Validity-Name ofnersonc assessee 8 business premises not mentioned 4 the repor ef Inseectoes claim personal knowledge of assessee' $ premises Inspector alg0 did not 'Service of Notice by affixture is invalid - 2) CIT vs. Kishan Chand. 328 ITR 173 (P&H): is individual and as a sequel to the search and seizure "The assessee premises; he filed revised return; The operation wa; conducted on his 144 of the Acl on the basi8 of best AO iramed assessment_under 5. tle appeal mainly o the judgement assessment' The CIT{A)accepted been served: Evidence with regard to ground that the assessee had not QM 016 21 ITA Nps, 516,5178518/Nag/2014. was rejected on the ground that resort to affixture service 0f affixture could not befxtcaightaway taken withous first,taking Other modes of scrvice Gho Tribunal affirmed the said linding It was observed I find that the search and seizure operations #From the facts ofthe case had been taken at the business and residential premises of the 'aP56978 a5 August, 1976, and the income of the asst,, Yr a3 far back could be assessed by issuing a notice by 3 1 * Murch, 1978. Notice under was issued on 23 March; 1978, and the [TO 148 was 54 "ihoagk anxious to see that the notice gets served by 3[ March, 1978. he meticulously taomplied with ali the fomnalities Prescribechich hedaad yel the hurty which he had to the service Of nolice through the affixture As pointed out, search had taken place in the to make is quite apparent; action had been taken up to 231 year August 1976, and when no 1978 takcn recourse to service by affixture can be said only,a March; 'formallity and not the real service as held by their Lordships in sheer different judgments of the different High Courts, referred to above: 3. Learned counsel for the Revenue is unable to show thatrtkeeWhe Lefuned 0/ thesessessee o accepi service &s has been assumedin the questionsreferrede Os the other hand Zhe Tribunalhas held cetogoroticey adopted and steps for service notice were that no other mode was taken about & week before the time was expiring:' 3) CIT vs. Hotline International (PJLtd: 296 ITR 333 #As order 5,1:; I2 ofthe CPC; wherever kt is Practicable; the seevice has Perbedetecied on Zdefendani in person Or On his #gent: Admittede: notice under 5 48 was not tendered to the assessee in (he present case; nor the same was refused at ali by the assessee. It is an admitted case of Revenue that when the officials of the IT Department went to serve the 148 for the asst. Yr. 1995-96 the security guard notice under 5, noforeed d1emS thet the company was ciosed for Foli festivid toldate The security guard by no stretch of imagination can be said to be the ofthe assessec and admittedly no notice was tendered either to the APPEL- agent assessee or his agent nor the Bame Was refused either by the assessee OT 17 of the CPC, the affixation can be done his agent; Under order $,I:_ his agent refuses to sign the 'only when the a55es3b6 Or Or could not be found. Here in the present case, no eclorowledgenaant by {uld ' to serve the notice upon_the effort was DePaneness the assessee:" was closed due t0 Holito # assessee since the company festival holidays, and admittedly no effort was made by the serving Even otherwise, as per order 5, T 194 of officer t0 locate the assessee. the CPC, the notice sent by 3uistuc adasttcaught {havo becit ve3f with acknowledgement due but it was not sent along due_ So; from the entire material available on1 record dhereoi ed eesitatiduein Sroldig tha Ehere haateeen no valid Service % there is 10 148 upon ithe assessee as the same was neither tendered notice under $_ to the assessee or his agent; nor the same wag refused by either of them no proper service of notice On the assessee, the Since there: has been proceedingsp resulting in the order dt 30" Jan 2003, are reassessment bad in law.

DaY ' 22 ITA Nos 516,5178518/Nag/2014 Conclusion: valid service of notice under 5 148 where it was not There was no nor refused by them, no effort was tendered tO assessee or his agent before affixation and made by serving officer to locate the assessee was not accompanied by notice sent by registered post acknowledgemient due; hence reassessment was bad in law.` Now [ examine the present case on the anvil of the aforesaid case 17. laws; In this case it is the claim of the Revenue that notice Us 148 Was of the assessee to receive the issued on 26-03-2009 Upon refusal made on the same date i.e. 26-03-2009. In this notice, affixture was also the contention of the assessee that the notice was never regard it is This aspect has been repeatedly served on the assessce or his agent. before the AO as well as the CIT(Appeals agitated by the assessee Examination 0f the materials produced in this regard do not reflect any effon on thc pari of the AO to service the notice by PoSt O byf othes required by section_. 282: This fact is Ordinary _ of service as #7r rQreathe dateeG/ issue gLyotice and ihe dale ofaffixture being eideaneorThbe clearly reveals that: tEe "AO-has not taken the sdme. above the notice in the ordinary course: Thus a8 in reasonable steps t0 serve 7~ tthe 8ase OFCIT' vS: Kishan Chand before' the Hon ble Ftjab & Haryarif" Court, in this case also no other mode was adopted and steps of Eighce taken except reportedly through the affixture Qf' notice was expired. Thus it is clear that the AO has about few days before time was attempts fcr service of notice in regular manners and not made regular make gubstituted service of notice: There is no was not justified to refusal of notice report of notice server to the effect that there was any by the assessee; In the report of Inspector, names of two witesses are of the Witnesses are far away from the premises referred. The addresses of the assessee: The repor of the Inspector does not state that witnesses identified the place Or was known to them personally: As a matter have submission that notice has not been of fact despite assessee's repeated the- served properly, the AO has not bothered to serve the notice Upon assessee Or his ageni even though there was adequate time fo (he said years. This service of notice through the odinary means fof subsequent on the part of lhe assessee to the legal clearly shows 4 scan t regard Court procedures. It is settled law including that from the Hoh"ble Abeer of CIT vs Ramendra Nath Ghosh (supra) that in absence of in the case Jose their validity. proper service of notice the assessment procedure thc conspectus of above factual 18. In these circumstances on scenario and the and case laws, I am of thc considered opinion that in 26-03-2009 claimed to have been served by this case nolice dated DNi 1S 23 TTA Nas, 516,517851B/Nag/2014 all 2 valid notice as mandated by law. In these affixture is not at circumstances have no hesitation in holding that the gaid affixture is in utter disregard of the Rules of Law &nd hence [ hold that in absence of notice the assessment order is void ab initio: Since ] have already qrophedoliee Ahesssteriot Iackeut sevice of notice adjudication and other limbs of learned counsel's submission On jurisdiction as well as on merits are now only of academic interest; Hence I am not engaging into the same. 7 Since it is undisputed thal the facts are identical and it is also not the case that Hon'ble jurisdictional High Court has revcrsed the above decision of this Tribuna], following the precedent; we hold that in absence of proper notice the assessment orders in these cases are void abinitio 8 Since_we-have already quashed the assessment for lack of service of hotice, the adjudication on other grounds and other limbs of iearned counsel $ 577' 'jurisdiction" 45 well a5 On mcrits are row 'only 'of academid: submission on interest Hence we are not engaging into the same. 9 In the result; these appeals by the assessee stand allowed as above: Open Court on this 27th day of March; 2017. Order pronolnced in the 7SMt #u Sdf- (RAM LAL NEGI) JUDICIAL MEMBER SHAMIM YAHYA) ACOUNTANT MEMBER . Nagpur; Dated: 27th - March, 2017. {