Sh. Suresh Kumar Sharma, Jammu V. The Income-tax Officer, Jammu

ITA 118/ASR/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2451 (ITAT-AMRITSAR)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 26-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V K SINGH
• Assessee Lawyers: JOGINDER SINGHCA
• Keywords: Recovery proceedings; Reason to believe
• Section: 147; 148; 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (JAMMU CAMP; JAMMU ) BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.S.KAPOOR, HONBLE ACCOUNTANT MEMBER I.T.A. NO. 118(ASR)/2015 ASSESSMENT YEARS: 2005-06 SH. SURESH KUMAR SHARMA 43 P, TRIKUTA NAGAR, JAMMU. PAN: AJBPS4237R VS. INCOME TAX OFFICER, WARD 1(3), JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. JOGINDER SINGH(CA.) RESPONDENT BY: SH. K.V.K. SINGH (DR.) DATE OF HEARING: 03.12.2015 DATE OF PRONOUNCEM ENT: 07 .01.2016 ORDER PER T.S.KAPOOR (A.M): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST TH E ORDER OF LEARNED CIT(A), JAMMU, DATED 26.02.2014, FOR ASST. YEAR 2005-06. 2. THE GROUNDS OF APPEAL TAKEN BY ASSESSEE ARE REP RODUCED BELOW. (1) THAT HAVING TO THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A), JAMMU HAS ERRED BOTH IN LAW AND ON FACTS OF THE CAS E AS HE CASE. . (2)(A) THAT HAVING REGARD TO THE FACTS AND CIRCUMST ANCES OF THE CASE, THE LD. CIT(A), JAMMU HAS ERRED IN LAW AND FACTS OF THE CAS E AS THE NOTICE U/S 148 WAS NEVER SERVED ON THE ASSESSEE. (B) THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, THE LD. CIT(A), JAMMU HAS ERRED IN LAW AND ON FACTS OF THE CASE AS THE NOTICE U/S 2. ITA NO.11 8 (ASR)/2015 ASST. YEA R 2005-06 148 CLAIMED TO HAVE BEEN SERVED BY AFFIXTURE ON 34 P, TRIKUTA NAGAR, 148 CLAIMED TO HAVE BEEN SERVED BY AFFIXTURE ON 34 A, T RIKUTA NAGAR, JAMMU IS INVALID AS THE SAID ADDRESS DOES NOT BELONG TO THE ASSESSEE. (3) THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, THE LD. CIT(A), JAMMU HAS ERRED IN LAW AND ON FACTS OF THE CASE AS THE NOTICE U/S 148 WAS CLAIMED TO HAVE BEEN ISSUED BY THE ITO, WAR D 1(3), JAMMU ON 23.03.2012 WHO HAD NO JURISDICTION OVER THE ASSESSE E ON THE SAID DATE. (4) THAT THE APPELLANT CRAVES TO LEAVE TO ADD, AMEN D, MODIFY, DELETE ANY OF THE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARI NG AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 3. AT THE TIME OF HEARING OF THE CASE, IT WAS OBSER VED THAT THE APPEAL WAS TIME BARRED BY 293 DAYS. THE ASSESSEE HAD FILED A D ULY SWORN AFFIDAVIT STATING THEREIN THAT HE WAS NOT AWARE OF THE ORDER OF LEARN ED CIT(A) PASSED U/S 250(6) AND IT WAS ONLY BECAUSE OF RECOVERY PROCEEDINGS INI TIATED AGAINST HIM, THAT HE BECAME AWARE OF THE ORDER OF LEARNED CIT(A) AND THE REFORE, HE APPLIED FOR A CERTIFIED COPY OF SUCH ORDER ON 13.02.2015 AND LEAR NED CIT(A) PROVIDED THE SAME ON 20.2.2015. THE LEARNED AR, IN VIEW OF THE S AID AFFIDAVIT OF THE ASSESSEE SUBMITTED THAT THE APPEAL WAS NOT TIME BARRED. FROM THE RECORDS, IT CAME TO OUR NOTICE THAT LEARNED CIT(A) VIDE LETTER DATE 27. 04.2015 HAD INTIMATED TO THE ITAT, AMRITSAR THAT THE APPELLATE ORDER WAS SERVED UPON THE ASSESSEE ON 10.3.2014, THEREFORE, THE LEARNED DR WAS ASKED TO P RODUCE DISPATCH REGISTER AND ON OUR DIRECTIONS THE LEARNED DR PRODUCED A DIS PATCH REGISTER AND SHOWED US THE ENTRIES OF SERVICE OF SUCH ORDER AND AGAINST THE COLUMN REGARDING MODE OF SERVICE IT WAS MENTIONED THAT THE SAID ORDER WAS SERVED UPON BY ASSESSEE BY HAND AND, THEREFORE, IN VIEW OF ABOVE DULY SWORN IN AFFIDAVIT OF ASSESSEE AND IN 3. ITA NO.11 8 (ASR)/2015 ASST. YEA R 2005-06 VIEW OF NOT HAVING SUFFICIENT EVIDENCE OF SERVICE O F SUCH ORDER ON THE ASSESSEE, WE CONDONE THE DELAY OF 293 DAYS AND THE PARTIES WE RE ASKED TO PROCEED WITH THE ARGUMENTS. THE LEARNED AR AT THE OUTSET, SUBMIT TED THAT THE PROCEEDINGS INITIATED BY ASSESSING OFFICER ARE NOT LEGAL IN VIE W OF THE VARIOUS IRREGULARITIES. POINTING OUT THE FIRST IRREGULARITY THE LEARNED AR INVITED OUR ATTENTION TO PAPER BOOK PAGE 10 TO 11 WHERE A COPY OF ORDER SHEET PASS ED BY ASSESSING OFFICER WAS PLACED. THE LEARNED AR SUBMITTED THAT AS PER OR DER SHEET NOTICE U/S 148 WAS SERVED UPON THE ASSESSEE BY AFFIXTURE. HE SUBMI TTED THAT ON 23.3.2012 ITSELF THE ASSESSING OFFICER HAD RECEIVED APPROVAL FROM JCIT, RANGE-I FOR REOPENING OF THE CASE AND ASSESSING OFFICER ON THE SAME DATE WITHOUT RESORTING TO OTHER MODES OF SERVICE RESORTED TO SER VICE BY AFFIXTURE WHICH IS NOT AS PER REQUIREMENTS OF LAW. INVITING OUR ATTENTION TO SECTION 282 OF THE ACT WHICH PROVIDES THE MANNER OF SERVICE OF A NOTICE, T HE LEARNED AR SUBMITTED THAT THE NOTICE HAS TO BE SERVED EITHER BY POST OR AS IF IT WAS THE SUMMONS UNDER THE CPC, 1908. HE SUBMITTED THAT IN THE PRESE NT CASE NOTICES WERE NEVER SENT BY POST AND THEREFORE, FOR SERVICE OF VALID NO TICE THE PROCEDURE AS LAID DOWN IN CPC IN ORDER V, RULE 12 TO 20 WERE TO BE FO LLOWED. HE SUBMITTED THAT AS PER RULE 17 THE ORDER OF AFFIXTURE CAN BE MADE O NLY WHEN AFTER USING ALL DUE AND REASONABLE DILIGENCE, THE DEFENDANT CANNOT BE F OUND AT THE RESIDENCE AND THERE IS NO OTHER AGENT TO ACCEPT NOTICE ON BEHALF OF DEFENDANT. HE SUBMITTED THAT THIS SUBSTITUTED MODE OF SERVICE CAN BE USED O NLY WHERE THERE IS A REASON TO BELIEVE THAT DEFENDANT IS KEEPING OUT OF THE WA Y FOR THE PURPOSES OF AVOIDING SERVICE OR THAT FOR ANY OTHER REASON THE SUMMONS WO ULD NOT BE SERVED IN THE 4. ITA NO.11 8 (ASR)/2015 ASST. YEA R 2005-06 ORDINARY WAY. HE SUBMITTED THAT IN THE PRESENT CASE NO EFFORTS WERE MADE BY AO TO SERVICE THE NOTICE ON THE ASSESSEE WHICH FACT ITSELF IS PROVED FROM ENTRIES IN THE ORDER SHEET WHERE ON THE DATE OF APPROVAL IT SELF THE ORDER FOR AFFIXTURE WAS PASSED. THE LEARNED AR IN THIS RESPECT PLACED H IS RELIANCE ON THE FOLLOWING CASE LAWS FOR THE PROPOSITION THAT BEFORE AFFIXTURE OF NOTICE THE SERVING OFFICER MUST USE WITH AND ALL DUE AND REASONABLE DILIGENCE TO FIND OUT THE DEFENDANT AND IF THE CIRCUMSTANCES AS MENTIONED IN RULE 17 EX IST THEN ONLY THE NOTICE MAY BE SERVED ON THE ASSESSEE BY AFFIXTURE. (1) DR. K.C. VERMA VS. ACIT, 84 ITD 33 (DEL.) (2) CIT VS. RAMENDRA NATH GHOSH 82 ITR 888 (SC) (3) GOPAL KUMAR DHARAR VS. DIT IN ITA NO. 1287 (KOL KATA) (4) CIT VS. HOTLINE INTERNATIONAL (P) LTD. ITR 0333 (DEL.) THE LEARNED AR FURTHER PLACED HIS RELIANCE ON A NUM BER OF CASE LAWS AS MENTIONED IN THE PAPER BOOK PAGE 27 TO 44. 4. THE LEARNED AR FURTHER SUBMITTED THAT SECOND IRR EGULARITY IS REGARDING AFFIXTURE AT A WRONG ADDRESS AT 34 P, EXT. SEC. 1, TRIKUTA NAGAR, JAMMU, WHEREAS ADDRESS OF THE ASSESSEE WAS 43 P EXT. SEC. 1, TRIKUTA NAGAR, JAMMU. IN THIS RESPECT, HE TOOK US TO A COPY OF ORDER OF A FFIXTURE PLACED AT PAPER BOOK PAGE 10 AND INVITED OUR ATTENTION TO ADDRESS MENTIO NED ON SUCH ORDER AS 34 P, TRIKUTA NAGAR. THE LEARNED AR SUBMITTED THAT THE PA N WAS AVAILABLE WITH THE ASSESSING OFFICER AND THEY COULD HAVE FOUND CORRECT ADDRESS OF THE ASSESSEE. 5. INVITING OUR ATTENTION TO ANOTHER IRREGULARITY, THE LEARNED AR SUBMITTED THAT AT THE TIME OF ISSUANCE OF NOTICE U/S 148, THE ASSESSING OFFICER WAS NOT 5. ITA NO.11 8 (ASR)/2015 ASST. YEA R 2005-06 HAVING ANY JURISDICTION ON THE ASSESSEE AND IN THIS RESPECT, HE INVITED OUR ATTENTION TO PAPER BOOK PAGE 17 WHERE A COPY OF ORD ER OF CIT, J & K WAS PLACED WHEREIN AT SERIAL NO.14, THE JURISDICTION OF ASSESS EE WAS TRANSFERRED FROM ITO (I) (3), JAMMU TO DCIT, CENTRAL CIRCLE, JAMMU. THE LEAN ED AR SUBMITTED THAT THE SAID JURISDICTION WAS CHANGED VIDE LETTER DATED 26. 10.2007 AND THE COMPLETE ORDER WAS PLACED AT PAPER BOOK PAGE 16 TO 18. HE FU RTHER SUBMITTED THAT VIDE ORDER DATED 8.6.2012 THE JURISDICTION OF ASSESSEE W AS AGAIN CHANGED FROM ACIT, JAMMU TO ITO, WARD I(3). HE SUBMITTED THAT FR OM THE ABOVE ORDERS IT IS CLEAR THAT THE JURISDICTION OF ASSESSEE FROM 26.10. 2007 TO 8.6.2012 REMAINED WITH DCIT, JAMMU, WHEREAS THE NOTICE U/S 148 WAS IS SUED BY ITO, WARD I(3). HE SUBMITTED THAT THE SAID NOTICE WAS DATED 23.3.20 12 AND ON THIS DATE THE JURISDICTION WAS LAYING WITH ACIT, CENTRAL CIRCLE, JAMMU AS THE JURISDICTION TO ITO, I(3), JAMMU WAS TRANSFERRED VIDE LETTER ORDER DATED 8.6.2012 ONLY. HE SUBMITTED THAT THE ASSESSING OFFICER MENTIONED IN S ECTION 148 MEANS THE ASSESSING OFFICER VESTED WITH THE JURISDICTION OF T HE ASSESSEE AS STIPULATED IN THE DEFINITION U/S 2 (7)(A) BY VIRTUE OF DIRECTION S / ORDER PASSED U/S 120. IN VIEW OF THE ABOVE LEARNED AR ARGUED THAT THE ASSESS ING OFFICER OF WARD NO. 1(3) HAD NO JURISDICTION. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES THE LEARNED AR SUBMITTED THAT THE LEARNED CIT(A) HAS EARED IN L AW JUSTIFYING THE SERVICE OF NOTICE ON THE PLEA THAT NOTICE WAS SERVED ON THE AP PELLANT BY AFFIXTURE ON THE LAST KNOWN ADDRESS IN THE PRESENCE OF INSPECTOR. HE SUBMITTED THAT THE ADDRESS OF THE ASSESSEE WAS AVAILABLE WITH JURISDICTIONAL A O OF THE APPELLANT I.E. CENTRAL CIRCLE, JAMMU AND SAID ADDRESS WAS ALSO AVAILABLE I N THE PAN RECORDS AS WELL 6. ITA NO.11 8 (ASR)/2015 ASST. YEA R 2005-06 AS ASSESSMENT INFORMATION SYSTEM. IN VIEW OF THE AB OVE FACTS AND CIRCUMSTANCES, THE LEARNED AR SUBMITTED THAT ORDER PASSED AND UPHELD BY LEARNED CIT(A) NEEDS TO BE QUASHED. 6. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDERS OF AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS AN UNDISPUTED FACT THAT AS PER ORDER SHEET ENTRIES THE ASSESSING OFFICER, WARD 1(3) RECEIVED A PPROVAL FOR REOPENING OF THE CASE U/S 147 ON 23.3.2012 AND ON THE SAME DATE NOTI CE U/S 148 WAS ISSUED AND THE SAME WAS AFFIXED ON 30.3.2012 AT 34 P, TRIK UTA NAGAR, EXT. JAMMU. THE AFFIXTURE NOTICE DATED 30.3.2012 IS PLACED AT P APER BOOK PAGE 14. THE ORDER SHEET ENTRIES DO NOT REFLECT ANY EFFORT ON THE PART OF ASSESSING OFFICER TO SERVE THE NOTICE BY POST OR BY OTHER ORDINARY MEANS OF SE RVICE AS REQUIRED BY SECTION 282. SECTION 282 REQUIRES THE SERVICE OF NOTICE BY POST OR COURIER OR IN SUCH MANNER AS PROVIDED UNDER CPC, 1908 IN ORDER V, RULE 12 TO 20. VARIOUS DECISIONS OF THE TRIBUNAL AND COURTS AS RELIED UPON BY THE LEARNED AR HAS HELD THAT BEFORE RESORTING TO THE MANNER OF SERVICE BY T HE AFFIXTURE THE ASSESSING OFFICER HAS TO TAKE REASONABLE AND SUFFICIENT STEPS TO SERVICE THE NOTICE THROUGH POST. THE HONBLE ITAT, DELHI IN THE CASE OF DR. K.C. VERMA VS. ACIT, 84 ITD 33 (DEL.) REPRODUCING THE PROVISIONS AS CONTAINED I N ORDER V, RULES 12 TO 20 HAS HELD AS UNDER: 7. ITA NO.11 8 (ASR)/2015 ASST. YEA R 2005-06 8. SECTION 282 PROVIDES THE MANNER IN WHICH A VALI D SERVICE CAN BE AFFECTED. ACCORDINGLY TO THIS SECTION, A NOTICE UNDER THE ACT IS TO BE SERVED EITHER BY POST OR AS IF IT WAS SUMMON UNDER THE CODE OF CIVIL PROCEDU RE, 1908. IN THE PRESENT CASE, ADMITTEDLY, NOTICE WAS NEVER SENT BY POST. SO THE Q UESTION ARISES WHETHER THE SERVICE WAS EFFECTED IN ACCORDANCE WITH THE PROVISI ONS OF CIVIL PROCEDURE CODE. THE RELEVANT PROVISIONS OF THE SERVICE OF SUMMONS U NDER THE CODE OF CIVIL PROCEDURE ARE CONTAINED IN ORDER V RULES 12 TO 20. RULE 12 PROVIDES THAT SERVICE SHALL BE MADE ON THE DEFENDANT IN PERSON WHEREVER I T IS PRACTICABLE UNLESS HE HAS AN AGENT EMPOWERED TO ACCEPT THE SERVICE IN WHI CH CASE SERVICE ON SUCH AGENT SHALL BE SUFFICIENT. ADMITTEDLY, PERSONAL SER VICE ON THE ASSESSEE WAS NOT AFFECTED IN THE PRESENT CASE. THE CLAIM OF THE DEPA RTMENT IS THAT SERVICE OF NOTICE UNDER SECTION 142 WAS EFFECTED BY AFFIXTURE. RULE 1 7 PROVIDES SERVICE BY AFFIXTURE AND THE SAME IS BEING REPRODUCED AS UNDER: 17. PROCEDURE WHEN DEFENDANT REFUSED TO ACCEPT SERV ICE, O WHERE THE DEFENDANT OR HIS AGENT OR SUCH OTHER PERS ON AS AFORESAID REFUSED TO SIGN THE ACKNOWLEDGEMENT, OR WHERE THE SERVING OFFI CER, AFTER USING ALL DUE AND REASONABLE DILIGENCE, CANNOT FIND THE DEFENDANT, WH O IS ABSENT FROM HIS RESIDENCE AT THE TIME WHEN SERVICE IS SOUGHT TO BE EFFECTED O N HIM AT HIS RESIDENCE WITHIN A REASONABLE TIME 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 O N THE OUTER DOOR OR SOME OTHER CONSPICUOUS PART OF THE HOUSE IN WHICH THE DEFENDAN T 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, WQTH A REPORT ENDOR SED THEREON OR ANNEXED THERETO STATING THAT HE HAS SO AFFIXED THE COPY, TH E CIRCUMSTANCES UNDER WHICH HE DID SO AND THE NAME AND ADDRESS OF THE PERSON (IF A NY) BY WHOM THE HOUSE WAS IDENTIFIED AND IN WHOSE PRESENCE THE COPY WAS AFFIX ED. RULE 19 PROVIDES THAT WHERE A SUMMON IS RETURNED UN DER RULE 17, THE COURT SHALL, IF THE RETURN UNDER THAT RULE HAS NOT BEEN V ERIFIED BY THE AFFIDAVIT OF THE SERVING OFFICER AND MAY, IF IT HAS BEEN SO VERIFIED , EXAMINE THE SERVING OFFICER ON OATH, OR CAUSE HIM TO BE SO EXAMINED BY ANOTHER COU RT, TOUCHING HIS PROCEEDINGS 8. ITA NO.11 8 (ASR)/2015 ASST. YEA R 2005-06 AND MAY MAKE SUCH FURTHER ENQUIRY IN THE MATTER AS IT THINKS FIT; AND SHALL EITHER DECLARE THAT THE SUMMON HAS BEEN DULY SERVED OR ORD ER SUCH SERVICE AS IT THINKS FIT. AT THIS STAGE, THE ATTENTION IS ALSO DRAWN TO RULE 20 WHICH PROVIDES THE CIRCUMSTANCES UNDER WHICH THE SUBSTITUTED SERVICE C AN BE EFFECTED. FOR THE BENEFIT OF THIS ORDER, THE PROVISIONS OF RULE 20 AR E BEING REPRODUCED AS UNDER : 20. SUBSTITUTED SERVICE - WHERE THE COURT IS SATISF IED THAT THERE IS REASON TO BELIEVE THAT THE DEFENDANT IS KEEPING OUT OF THE WA Y FOR THE PURPOSE OF AVOIDING SERVICE, OR THAT FOR ANY OTHER REASON THE SUMMONS C ANNOT BE SERVED IN THE ORDINARY WAY, THE COURT SHALL ORDER THE SUMMONS TO BE SERVED BY AFFIXING A COPY THEREOF IN SOME CONSPICUOUS PLACE IN THE COURT-HOUS E AND ALSO UPON SOME CONSPICUOUS PART OF THE HOUSE (IF ANY) IN WHICH THE DEFENDANT IS KNOWN TO HAVE LAST RESIDED OR CARRIED ON BUSINESS OR PERSONALLY W ORKED FOR GAIN, OR IN SUCH OTHER MANNER AS THE COURT THINKS FIT. THE PERUSAL OF THE ABOVE PROVISIONS SHOWS THAT BEFO RE ORDERING FOR SUBSTITUTED SERVICE, THE COURT MUST BE SATISFIED THAT THE DEFEN DANT IS KEEPING OUT OF THE WAY FOR THE PURPOSES OF AVOIDING SERVICE OR THAT FOR AN Y OTHER REASON THE SUMMONS CANNOT BE SERVED IN THE ORDINARY WAY. FURTHER, BEFO RE AFFIXTURE THE SERVING OFFICER MUST USE ITS DUE AND REASONABLE DILIGENCE TO FIND O UT THE DEFENDANT AND IF THE CIRCUMSTANCES AS MENTIONED IN RULE 17 EXIST THEN ON LY THE NOTICE MAY BE SERVED BY AFFIXTURE THAT TOO IN THE PRESENCE OF WITNESSES BY WHOM THE HOUSE WAS IDENTIFIED AND IN WHOSE PRESENCE THE COPY WAS AFFIX ED. THIS VIEW FINDS SUPPORT FROM THE JUDGMENT OF THE APEX COURT IN THE CASE OF RAMENDRA NATH GHOSH (SUPRA). IN THAT CASE, THE SERVICE WAS AFFECTED BY AFFIXTURE BY THE INSPECTOR OF INCOME-TAX BUT IN HIS REPORT HE DID NOT MENTION THE NAMES AND ADDRESSES OF THE PERSON WHO IDENTIFIED THE PLACE OF BUSINESS OF THE ASSESSEE NO R DID HE MENTION IN HIS REPORT OR IN THE AFFIDAVIT FILED BY HIM THAT HE PERSONALLY KN EW THE PLACE OF BUSINESS OF THE ASSESSEE. THE MATTER TRAVELLED UP TO SUPREME COURT AND IT WAS HELD FINALLY THAT THE SERVICE OF NOTICE WAS NOT IN ACCORDANCE WITH LA W. 9. IN THE PRESENT CASE, THE NOTICE WAS ISSUED AND SERV ED ON THE SAME DAY. IT IS NOT NECESSARY FOR ME TO GIVE ANY FINDING AS TO WHETHER THE NOTICE SER VER OR THE INSPECTOR VISITED THE HOUSE OF THE ASSESSEE THE OR NOT SINCE, IN MY VIEW, THE ALLEGED SERVICE OF NOTICE WAS NOT IN 9. ITA NO.11 8 (ASR)/2015 ASST. YEA R 2005-06 ACCORDANCE WITH LAW. FACTS OF THE CASE DO NOT POINT OUT THAT ANY EFFORT WAS MADE TO FIND OUT THE WHERE ABOUT OF THE ASSESSEE. T HERE IS ALSO NO REPORT TO THE EFFECT THAT ASSESSEE WAS NOT AVAILABLE, DESPITE PROPER ART, AT THE RESIDENCE. THE ORIGINAL REPORT OF THE NOTICE SERVER WAS SEEN BY ME IN THE COURSE OF REARING. THERE IS NO REPORT OF THE NOTICE SERVER THAT ASSESSEE COULD NOT BE FOUND IN SPITE OF HIS DUE DILIGENCE. FURTHER , THE ALLEGED AFFIXTURE OF THE NOTICE WAS NOT IN THE PRESENCE OF ANY WITNESS, WHIC H IS THE REQUIREMENT OF LAW. THERE IS ALSO NO MATERIAL ON THE RECORD ON THE BASIS OF WHICH THE ASSESSING OFFICER COULD HAVE REASON TO BELIEVE THAT ; DEFENDANT WAS KEEPING OUT OF THE WAY FOR THE PURPOSES OF AVOIDING SERVICE OR THAT FOR ANY OTHER REASON, SUMMONS COULD NOT BE SERVED IN ORDINARY WAY . FURTHER, THERE IS NO ORDER PASSED BY THE ASSESSING OFFICER TO THE EFFECT : THAT SERVICE BY AFFIXTURE WAS MADE IN TERMS OF RULE 20. SO IT APPEARS THAT TH E SO-CALLED SERVICE WAS IN UTTER DISREGARD OF THE PROVISIONS OF ORDER V RULES 17,19 & 20. ACCORDINGLY, IT IS HELD THAT THERE WAS NO VALID SERVICE OF NOTICE I SSUED UNDER SECTION 142(1). REGARDING THE SECOND NOTICE UNDER SECTION 142(1), T HERE IS NOTHING ON THE RECORD AS TO HOW THE NOTICE WAS SERVED. THE ASSESSE E HAS TOTALLY DENIED ANY SERVICE OF NOTICE UNDER SECTION 142(1). IN VIEW OF THE ABOVE DISCUSSION, IT IS, THEREFORE, HELD THAT JURISDICTION TO ASSESS UNDER S ECTION 144 WAS NOT VALIDLY ASSUMED AND CONSEQUENTLY, THE IMPUGNED ASSESSMENTS UNDER SECTION 144 WERE VOID AB INITIO. IN THE PRESENT CASE, WE FIND THAT ADMITTEDLY NO EFF ORT WAS MADE BY ASSESSING OFFICER TO SERVE THE NOTICE IN ORDINARY WAY AND FUR THER THERE IS NO ORDER PASSED BY ASSESSING OFFICER TO THE EFFECT THAT SERVICE BY THE AFFIXTURE WAS MADE IN ACCORDANCE WITH LAW. THE SO CALLED SERVICE IS IN UT TER DISREGARD OF RULE 17, 19 AND 20 OF ORDER V OF CPC. MOREOVER, WE FIND THAT TH E NOTICE WAS SERVED THROUGH AFFIXTURE AT A WRONG ADDRESS AT 34 P, TRIKU TA ROAD, WHERE AS THE ADDRESS AS CLAIMED BY ASSESSEE WAS 43 P, TRIKUTA NA GAR, JAMMU. THE ASSESSING OFFICER DURING THE REMAND PROCEEDINGS HAS ADMITTED THAT SERVICE BY 10. ITA NO.1 18 (ASR)/2015 ASST. YEA R 2005-06 AFFIXTURE WAS MADE AT 34 P, TRIKUTA ROAD. THEREFORE , ON THIS ACCOUNT ALSO THE SERVICE IS NOT LEGAL AS THE SERVICE BY AFFIXTURE WA S ALSO DONE AT A WRONG ADDRESS AND THEREFORE SUCH SERVICE CANNOT BE SAID TO HAVE B EEN MADE ON ASSESSEE. FURTHER WE FIND THAT AT THE TIME OF ISSUANCE OF NOT ICE U/S 148 THE ASSESSING OFFICER, WARD 1(3) WAS NOT HAVING JURISDICTION ON T HE ASSESSEE AS IS APPARENT FROM THE COPIES OF ORDERS PASSED BY COMMISSIONER OF INCOME TAX, JAMMU AND KASHMIR AND JOINT DIRECTOR OF INCOME TAX, INVESTIGA TION, CHANDIGARH AS PLACED IN PAPER BOOK PAGE 16 TO 20. IN VIEW OF THE ABOVE F ACTS AND CIRCUMSTANCES ENUMERATED ABOVE WE FIND THAT NOTICE WAS NOT AT ALL SERVED UPON THE ASSESSEE AND THEREFORE, THE ASSESSMENT ITSELF IS BAD IN LAW AND IS THEREFORE QUASHED. 8. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH JANUARY, 2016. SD/- SD/- (A.D.JAIN) (T.S.KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07.01.2016 PK/PS COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.