Smt. Kalpana Bedi, Ludhiana V. DCIT, CC-I, Ludhiana

ITA 1594/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4554 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 21-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR ASHISH GUPTA
• Keywords: Bonafide belief; Period of limitation; Reasonable cause; Time period of passing order; Condonation of delay; Reason to believe; Set aside
• Section: 271(1)(c); 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A, CHANDIGARH BEFORE: SH.SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 1594 & 1595/CHD/2018 ASSESSMENT YEAR : 2006-07 SMT KALPANA BEDI C/O M/S V.V. BHALLA & CO. E-64, RISHI NAGAR, LUDHIANA, PUNJAB VS. DCIT CENTRAL CIRCLE-1 LUDHIANA, PUNJAB PAN NO: AFWPB6242G APPELLANT RESPONDENT ASSESSEE BY : SHRI. ASHWANI KUMAR, CA FOR SHRI PAN KAJ BHALLA REVENUE BY : DR. ASHISH GUPTA, CIT(DR) DATE OF HEARING : 22/05/2019 DATE OF PRONOUNCEMENT : 30/05/2019 ORDER PER ANNAPURNA GUPTA, A.M: BOTH THE CAPTIONED APPEALS RELATE TO THE SAME ASSE SSEE, ONE FILED AGAINST THE ORDER PASSED BY THE LD. CIT(A) IN QUANT UM PROCEEDINGS, WHILE THE OTHER AGAINST THE ORDER PASSED BY THE LD. CIT(A) CO NFIRMING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT,1961, (HEREINAFTER REFERRED TO AS ACT). 2. BOTH THE APPEALS WERE DELAYED FOR FILING BY SEVE N DAYS. CONSIDERING THE SHORTNESS OF THE DELAY , THE SAME WAS CONDONED IN OPEN COURT AND THE HEARING OF THE APPEALS WAS PROCEEDED WITH. 3. AT THE OUTSET ITSELF IT WAS POINTED OUT THAT CON SEQUENT TO SEARCH ACTION UNDERTAKEN ON THE ASSESSEE ON 12/10/2010,ASSESSMENT FOR THE IMPUGNED YEAR HAD BEEN FRAMED U/S 153A R.W.S 143(3) OF THE ACT. I T WAS POINTED OUT THAT THE APPEALS OF THE ASSESSEE FOR A.Y. 2008-2009 TO A.Y. 2011-12 ,ASSESSMENT FOR WHICH HAD ALSO BEEN FRAMED U/S 153A OF THE ACT CONSEQUENT TO SEARCH UNDERTAKEN ON THE ASSESSEE HAD BEEN ADJUDICATED BY THE ITAT VIDE THEIR ORDER IN ITA NO. 1313 TO 1320/CHD/2018 DT. 17/05/2019. IT WAS POINTED OU T THAT IN THE IMPUGNED CASE ALSO, AS IN THE CASE DEALT WITH BY THE ITAT ,ASSESS MENT HAD BEEN FRAMED EX- PARTE UNDER SECTION 153A R.W.S 144 OF THE ACT, AND EVEN BEFORE THE LD. CIT(A) THE APPEAL HAD BEEN FILED DELAYED. THAT AN APPLICA TION HAD BEEN FILED BEFORE THE LD. CIT(A) REQUESTING CONDONATION OF THE DELAY BUT THE LD. CIT(A) HAD DISMISSED THE APPEAL ON ACCOUNT OF NON PROSECUTION BY THE ASSESSEE. IT WAS POINTED OUT THAT THE FACTS AND CIRCUMSTANCES IN THE IMPUGNED CASE WERE IDENTICAL TO THAT IN A.Y. 2008-09 TO 2011-12 WHICH HAD LEAD TO THE EX-PARTE FRAMING THE ASSESSMENT AND THE DELAY IN FILING APPE AL BEFORE THE LD. CIT(A) AND THE NON PROSECUTION OF THE SAME BEFORE HIM. IT WAS POINTED OUT THAT IN THE SAID CASES IT HAD BEEN EXPLAINED TO THE ITAT THAT THE RE ASON FOR DELAY WERE THE PECULIAR CIRCUMSTANCES IN WHICH THE ASSESSEE WAS EM BROILED BOTH ON THE PERSONAL FRONT AND IN ITS BUSINESS ALSO, ON ACCOUNT OF WHICH IT WAS UNABLE TO ATTEND THE PROCEEDINGS BOTH BEFORE THE AO AND THE L D. CIT(A). ON CONSIDERING THE SAME THE ITAT HAD RESTORED THE ISSUE BACK TO TH E FILE OF THE AO TO ADJUDICATE THE SAME AFRESH AFTER CONDONING THE DELAY BEFORE TH E LD. CIT(A). OUR ATTENTION WAS DRAWN TO PARA 3 TO PARA 11 OF THE ORDER AS UNDE R: 3. WE SHALL FIRST BE DEALING WITH THE APPEALS FILE D AGAINST ORDERS PASSED BY THE LD.CIT(A) IN QUANTUM PROCEEDINGS I.E ITA NOS.1313 TO 1316, 1325, 1327, 1321 AND 1322/CHD/2018. 4. ALL THE AFOREMENTIONED APPEALS WERE DELAYED FOR FILING BY ONE DAY. AN APPLICATION REQUESTING CONDONING THE DE LAY WAS FILED ,EXPLAINING THE DELAY AS BEING ON ACCOUNT OF MISTAK E IN CALCULATION OF NUMBER OF DAYS BY THE COUNSEL OF THE ASSESSEE. C ONSIDERING THE SHORTNESS OF THE DELAY, THE SAME WAS CONDONED AND ALL THE APPEALS WERE PROCEEDED TO BE HEARD WITH. 5. AT THE OUTSET ITSELF IT WAS POINTED OUT THAT IN ALL THE IMPUGNED CASES SEARCH ACTION U/S 132 OF THE ACT TOOK PLACE ON THE ASSESSEES ON 22.10.2010 ,AND SUBSEQUENTLY ASSESSMENT WAS FRA MED EX PARTE U/S 153A R.W.S. 144 OF THE ACT. IT WAS FURTHER POIN TED OUT THAT THE APPEAL FILED BEFORE THE LD.CIT(A) WAS DELAYED BY M ORE THAN 100 DAYS IN ALL THE CASES. THAT THE ASSESSEE MOVED AN A PPLICATION EXPLAINING THE REASONS FOR THE DELAY AND ACCORDINGL Y REQUESTING FOR CONDONATION OF DELAY. BUT, THAT THE SAME WAS REJECT ED BY THE LD.CIT(A) AND THE APPEAL OF THE ASSESSEE THEREBY D ISMISSED AS BEING BARRED BY LIMITATION. THAT AGGRIEVED BY THE A FORESAID ORDER OF THE CIT(A), THE ASSESSEE HAS COME IN APPEAL BEFO RE US . 6. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT BEF ORE THE LD. CIT(A),THE ASSESSEE HAD CLEARLY BROUGHT OUT THE PEC ULIAR CIRCUMSTANCES AND SITUATION IN WHICH IT WAS EMBROIL ED, AND WHICH CAUSED THE DELAY. THAT IT WAS FACING DIFFICULTIES B OTH ON THE PERSONAL AND BUSINESS FRONT, ON ACCOUNT OF WHICH IT WAS UNDER EXTREME PRESSURE AND DEPRESSION AND ALSO THAT THEY WERE UNDER THE BONA FIDE BELIEF THAT THEIR COUNSEL WOULD LOOK INTO THE INCOME TAX MATTERS. THAT THERE WAS NO COMMUNICATION BETWEEN TH E ASSESSEE AND HIS CHARTERED ACCOUNTANT DURING THIS PERIOD BEC AUSE OF THE PECULIAR CIRCUMSTANCES .THAT FURTHER THE ASSESSMENT ORDER WAS SERVED BY WAY OF AFFIXTURE IN THE HOUSE WHERE THE A SSESSEE WAS NO MORE THAN RESIDING AND WAS THUS NOT AWARE OF THE PA SSING OF THE ASSESSMENT ORDER. OUR ATTENTION WAS DRAWN TO THE PL EADINGS MADE BEFORE THE LD. CIT(A) IN THIS REGARD REPRODUCED AT PARA 2 TO 2.1 OF THE CIT(A)S ORDER IN THE CASE OF THE ASSESSEE SMT. KALPANA BEDI IN ITA NO. 1313/CHD/2018 PERTAINING TO A.Y. 2008-09 AS UNDER: 2. IN THE PRESENT APPEAL PROCEEDINGS, THE FOLLOWIN G WRITTEN SUBMISSIONS WERE FILED BY THE APPELLANT TO CONTEND THAT THE PROCEDURE FOLLOWED FOR AFFIXTURE SUFFERED FUNDAMENT AL PROCEDURAL INFIRMITIES AND THEREFORE THE DATE OF A FIXTURE CAN NOT BE TAKEN AS DATE OF SERVICE IN THESE CASES. THE WRITTEN SUBMISS IONS ARE REPRODUCED HERE UNDER: AT THE OUTSET IT MAY BE POINTED OUT BY YOUR HONOUR THAT THERE IS A DELAY IN FILING OF QUANTUM APPEAL. HOWEVER THE SUBM ISSION OF THE APPELLANT ARE THAT THE DATE OF SERVICE OF ASSESSMEN T ORDER CANNOT BE TAKEN IN MONTH OF NOV 2013 AND CAN ONLY BE TAKEN FOR MAY 2014. THE SUBMISSION OF THE APPELLANT ARE FORTIFIED BY TH E FACT THAT THE HOB'BLE ITAT CHANDIGARH IN GROUP CASES OF PUNEET FA SHION GROUP OF ITA NO 1065 TO 1067/CHD/2017 HAS CATEGORICALLY HELD REGARDING SERVICE OF ORDER BY AFFICTURE IN THE MONTH OF NOVEM BER 2013 AS UNDER:- A. ADMITTEDLY THE ASSESSING OFFICER HAS ADOPTED THE METHOD OF SERVICE BY AFFIXTURE FOR SUBSTITUTED SERVICE UNDER ORDER V RULE 17 AND RULE 20 OF THE CPC. BUT AS NOTED ABOVE THE PRESCRIB ED PROCEDURE UNDER ORDER V RULE 17 AND RULE 20 OF THE CPC HAS NO T BEEN ADOPTED. B. THERE IS NO EVIDENCE ON RECORD THAT THE AO HAD M ADE ANY EFFORT TO TRACE THE ASSESSEE/DIRECTOR. THE AFFIXTUR E WAS NOT DONE IN THE PRESENCE OF ANY EVIDENCE. FURTHER, THERE WAS NO SATISFACTION RECORDED BY THE AO/SERVING OFFICER THAT AFTER USING ALL DUE AND REASONABLE DILIGENCE THE ASSESSEE COULD NOT BE FOUN D AND THAT THERE WAS NO LIKELIHOOD OF HIS BEING FOUND AT THE R ESIDENCE WITHIN A REASONABLE TIME. EVEN NO AFFIDAVIT OF THE SERVING O FFICER WAS FILED ALONG WITH THE RETURN REPORT OF THE ORDER/NOTICE VE RIFYING THE ABOVE FACTS AND JUSTIFYING SUBSTITUTED SERVICE THROUGH AF FIXTURE ON THE ALREADY LEFT OVER HOUSE OF THE ASSESSEE. THE NOTICE S, SENT BY THE AO THROUGH REGISTERED POST, HAS BEEN RECEIVED BACK WIT H THE REMARKS 12 'ADDRESSEE LEFT'. UNDER THE CIRCUMSTANCES, WHEN THE ASSESSING OFFICER WAS WELL AWARE OF THE FACT THAT THE ASSESSE E/DIRECTOR WERE NOT AFFIXTURE WAS MEANINGLESS. NO OTHER MODE OF SUB STITUTED SERVICE WAS ADOPTED BY THE AO. NOW IT IS MOST HUMBLY PRAYED THAT THE APPEAL OF THE ASSESSEE BE TREATED AS REGULAR TO ENABLE THE UNDERSIGNED TO MAK E FURTHER SUBMISSION. 2.1 THE APPELLANT HAS ALSO FILED PETITION FOR CONDO NATION OF DELAY VIDE LETTER DATED 18/11/2014 EXPLAINING THE CIRCUMS TANCES BECAUSE OF WHICH SHE COULD NOT FILE THE APPEAL WITHIN THE L IMITATION PERIOD. THE ASSESSEE ALSO EXPLAINED THAT THE SHOW CAUSE NOT ICES ISSUED BY THE ASSESSING OFFICER HAD BEEN SENT IN THE ORDINARY COURSE AT THE HOUSE IN WHICH THE DIRECTORS OF THE ASSESSEE GROUP WERE RESIDING BUT ITS POSSESSION WAS TAKEN OVER BY THE ALLAHABAD BANK AND THAT THE DIRECTORS HAD BEEN RENDERED HOMELESS AND HAVE S HIFTED TO A RENTED ACCOMMODATION. FURTHER, THAT DUE TO EXTREME FINANCIAL CRUNCH AND OTHER DIFFICULTIES OF LIFE, TAKING OVER OF ALL THE ASSETS BY THE BANK, LITIGATION WITH CUSTOMS & DRI, PENDING PR OCEEDING AGAINST THE ASSESSEE UNDER SECURITY AND RECONSTRUCTION OF F INANCIAL ASSET AND ENFORCEMENT OF SECURITY INTEREST (SARFAESI) ACT , THERE WERE FAMILY PROBLEMS OF DIVORCE AND THE DIRECTORS WERE U NDER EXTREME PRESSURE AND DEPRESSION AND COULD NOT ESTABLISH CON TACT WITH THEIR CHARTERED ACCOUNTANT. THE DIRECTORS WERE UNDER BONA FIDE BELIEF THAT THEIR COUNSEL WOULD LOOK AFTER INCOME TAX PROC EEDINGS. IT WAS FURTHER POINTED OUT THAT THE ASSESSMENT ORDER WAS N EVER SERVED UPON THE ASSESSEE. THE SERVICE WAS EFFECTED THROUGH AFFIXATION ON THE HOUSE IN WHICH THE DIRECTORS WERE NOT RESIDING AS THE SAME WAS TAKEN POSSESSION OF BY THE BANK. 7. THE LD. COUNSEL FOR THE ASSESSEE, THEREAFTER, ST ATED THAT IN ALL THE IMPUGNED CASES, THE APPEALS WERE FILED DELAYED BEFORE THE LD. CIT(A) FOR THE AFORESAID REASON AND THE SAME HA D BEEN DISMISSED BY THE LD.CIT(A) BY NOT CONDONING THE DE LAY. LD.COUNSEL FOR THE ASSESSEE STATED THAT THERE WAS GENUINE AND REASONABLE CAUSE FOR THE DELAY AND THE LD.CIT(A) HAD ERRED IN NOT CONSIDERING THE SAME. LD.COUNSEL FOR THE ASSESSEE FURTHER POINT ED OUT THAT IN CASE OF OTHER ASSESSES BELONGING TO THE SAME GROUP ,THE APPEALS HAD BEEN DELAYED FOR FILING BEFORE THE LD.CIT(A) F OR IDENTICAL REASONS AND THE LD.CIT(A) HAD DISMISSED THE APPEALS AS BARRED BY LIMITATION, AGAINST WHICH THE ASSESSEE HAD FILED AP PEAL BEFORE THE ITAT WHO, TAKING NOTE OF THE PECULIAR CIRCUMSTANCES PREVAILING WITH THE ASSESSEE, HAD SET ASIDE THE ORDER OF THE CIT(A) AND FURTHER, TAKING NOTE OF THE FACT THAT EVEN THE ASSESSMENT OR DER WAS EX PARTE ORDER , HAD RESTORED THE CASES BACK TO THE FILE O F THE ASSESSING OFFICER FOR DE NOVO ASSESSMENT. OUR ATTENTION WAS D RAWN TO THE ORDER PASSED BY THE ITAT IN THE CASE OF M/S PUNEET FASHION PVT. LTD., M/S NIKHIL EXIM PVT. LTD, M/S RAJAN TRADING P RIVATE LTD., AND M/S. S.K. TEXTILES , MR. PUNEET BEDI, SHRI TILAK RA J BEDI, MS NEHA BEDI, ALL COMPANIES/ASSESSEES BELONGING TO THE GROUP, IN THE GROUP OF CASES WITH THE LEAD CASE BEING ITA NO. 1056 TO 1061 /CHD/2017 DATED 31.10.2017, AT PARA 10 TO 17 OF THE ORDER AS UNDER: 10. NOW COMING TO THE MERITS OF THE APPEAL, THE AP PEAL OF THE ASSESSEE HAS BEEN DISMISSED BY THE LD. CIT(A) BEING BARRED BY LIMITATION. THE ASSESSEE IN THE APPLICATION OF COND ONATION OF DELAY MOVED BEFORE THE CIT(A) HAD EXPLAINED ABOUT THE CIR CUMSTANCES BECAUSE OF WHICH HE COULD NOT FILE THE APPEAL WITH IN THE LIMITATION PERIOD. THE ASSESSEE ALSO EXPLAINED THAT NONE OF T HE SHOW CAUSE NOTICES ISSUED BY THE AO HAD BEEN SERVED IN THE ORDINARY COURSE UPON THE ASSESSEE AS THE HOUSE IN WHICH THE DIRECT ORS OF THE ASSESSEE COMPANY WERE RESIDING WAS TAKEN POSSESSION OF BY THE ALLAHABAD BANK AND THAT THE DIRECTORS HAD BEEN RE NDERED HOMELESS AND HAVE SHIFTED TO A RENTED ACCOMMODATIO N. FURTHER, THAT DUE TO EXTREME FINANCIAL CRUNCH AND OTHER DIFF ICULTIES OF LIFE, TAKING OVER OF ALL THE ASSETS BY THE BANK, LITIGAT ION WITH CUSTOMS & DRI, PENDING PROCEEDING AGAINST THE ASSESSEE UNDE R SECURITY AND RECONSTRUCTION OF FINANCIAL ASSET AND ENFORCEMENT O F SECURITY INTEREST (SARFAESI) ACT, THE FAMILY PROBLEMS SUCH AS DIVORCE AFTER FEW DAYS OF HER MARRIAGE OF THE DAUGHTER OF SH. TIL AK RAJ BEDI AND SISTER OF SH. PUNEET BEDI (BOTH DIRECTORS OF THE CO MPANY), THE DIRECTORS WERE UNDER EXTREME PRESSURE AND DEPRESSIO N AND COULD NOT ESTABLISH CONTACT WITH THEIR CHARTERED ACCOUNTA NT. THE DIRECTORS WERE UNDER BONAFIDE BELIEF THAT THEIR C OUNSEL WOULD LOOK AFTER INCOME TAX PROCEEDINGS. IT WAS FURTHER POINTE D OUT THAT THE ASSESSMENT ORDER WAS NEVER SERVED UPON THE ASSESSEE . THE SERVICE WAS EFFECTED THROUGH AFFIXATION ON THE HOUSE IN W HICH THE DIRECTORS WERE NOT RESIDING AS THE SAME WAS TAKEN P OSSESSION OF BY THE BANK. IN OUR VIEW, THE ABOVE CIRCUMSTANCES CONS TITUTE SUFFICIENT CAUSE FOR CONDONATION OF DELAY IN FILING OF THE APP EAL BEFORE THE CIT(A). 11. FURTHER, BEFORE US, THE LD. COUNSEL FOR THE ASS ESSEE HAS TAKEN A PLEA THAT THE SERVICE OF THE ORDER EFFECTED BY W AY OF SUBSTITUTED MODE OF SERVICE THROUGH AFFIXTURE ON THE HOUSE IN W HICH THE DIRECTORS OF THE ASSESSEE HAD CEASED TO RESIDE WAS DEFECTIVE AS THE ASSESSING OFFICER WAS WELL AWARE OF THE FACT THAT T HE DIRECTORS WERE NOT RESIDING IN THE SAID HOUSE. 12. AS PER THE PROVISION OF SECTION 282 OF THE ACT, SERVICE OF NOTICE OR SUMMON OR REQUISITION OR ORDER OR ANY OTH ER COMMUNICATION UNDER THE INCOME TAX ACT CAN BE MAD E BY DELIVERING OR TRANSMITTING A COPY THEREOF, TO TH E PERSON THEREIN NAMED, (A) BY POST OR BY SUCH COURIER SERVICES AS MAY BE APPROVED BY THE BOARD; OR (B) IN SUCH MANNER AS PROVIDED UNDER THE CODE OF CI VIL PROCEDURE, 1908 (5 OF 1908) FOR THE PURPOSES OF SER VICE OF SUMMONS; OR (C) IN THE FORM OF ANY ELECTRONIC RECORD AS PROVIDE D IN CHAPTER IV OF THE INFORMATION TECHNOLOGY ACT, 2000 (21 OF 2 000); (D) BY ANY OTHER MEANS OF TRANSMISSION OF DOCUMENTS AS PROVIDED BY RULES MADE BY THE BOARD IN THIS BEHALF. 13. ADMITTEDLY THE ASSESSING OFFICER HAD ADOPTED T HE METHOD OF SERVICE BY AFFIXTURE AS APPLICABLE FOR SUBSTITUTED SERVICE UNDER ORDER V RULE 17 AND RULE 20 OF THE CPC. BUT AS NOTE D ABOVE THE PRESCRIBED PROCEDURE UNDER ORDER V RULE 17 AND RULE 20 OF THE CPC HAS NOT BEEN ADOPTED. RULE 17 & 20 ORDER V CPC READ AS UNDER: 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 ACKNOWLE DGMENT, OR WHERE THE SERVING OFFICER, AFTER USING ALL DUE AND REASONABLE DILIGENCE, CANNOT FIND THE DEFENDANT, WHO IS ABSENT FROM HIS RESIDENCE AT THE TIME WHEN SERVICE IS SOUGHT TO BE EFFECTED ON HIM AT HIS RESIDENCE AND THERE IS NO LIKELIHOOD OF HIS BEING FOUND AT THE RESIDENCE WITHIN A REASONABLE TIME AND THERE IS NO AGENT EMPOWERED TO ACCEPT SERVICE OF THE SUMMONS ON HIS B EHALF, NOR ANY OTHER PERSON ON WHOM SERVICE CAN BE MADE, THE SERVING OFFICER SHALL AFFIX A COPY OF THE SUMMONS ON THE O UTER DOOR OR SOME OTHER CONSPICUOUS PART OF THE HOUSE IN WHICH THE DEFENDANT ORDINARILY RESIDES OR CARRIES ON BUSINESS OR PERSO NALLY WORKS FOR GAIN, AND SHALL THEN RETURN THE ORIGINAL TO THE COURT FRO M WHICH IT WAS ISSUED, WITH A REPORT ENDORSED THEREON OR ANNEXED T HERETO 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 WHOSE PRESENCE THE CO PY WAS AFFIXED. 20. SUBSTITUTED SERVICE.- (1) WHERE THE COURT IS SA TISFIED THAT THERE IS REASON TO BELIEVE THAT THE DEFENDANT IS KEEPING O UT OF THE WAY FOR THE PURPOSE OF AVOIDING SERVICE, OR THAT FOR ANY OTHER REASON THE SUMMONS CANNOT BE SERVED IN THE ORDINARY WAY, THE C OURT SHALL ORDER THE SUMMONS TO BE SERVED BY AFFIXING A COPY T HEREOF IN SOME CONSPICUOUS PLACE IN THE COURT HOUSE, 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 O R PERSONALLY WORKED FOR GAIN, OR IN SUCH OTHER MANNER AS THE COU RT THINKS FIT. (1A) WHERE THE COURT ACTING UNDER SUB-RULE (1) ORDE RS SERVICE BY AN ADVERTISEMENT IN A NEWSPAPER, THE NEWSPAPER SHALL BE A DAILY NEWSPAPER CIRCULATING IN THE LOCALITY IN WHICH THE DEFENDANT IS LAST KNOWN TO HAVE ACTUALLY AND VOLUNTARILY RESIDED, CAR RIED ON BUSINESS OR PERSONALLY WORKED FOR GAIN. (2) EFFECT OF SUBSTITUTED SERVICESERVICE SUBSTITUT ED BY ORDER OF THE COURT SHALL BE AS EFFECTUAL AS IF IT HAD BEEN M ADE ON THE DEFENDANT PERSONALLY. (3) WHERE SERVICE SUBSTITUTED, TIME FOR APPEARANCE TO BE FIXED WHERE SERVICE IS SUBSTITUTED BY ORDER OF THE COURT, THE COURT SHALL FIX SUCH TIME FOR THE APPEARANCE OF THE DEFENDANT AS TH E CASE MAY REQUIRE. 14. THERE IS NO EVIDENCE ON RECORD THAT THE AO HAD MADE ANY EFFORT TO TRACE THE ASSESSEE/DIRECTORS. THE AFFIXT URE WAS NOT DONE IN THE PRESENCE OF ANY WITNESS. FURTHER, THERE WAS NO SATISFACTION RECORDED BY THE AO/SERVING OFFICER THAT AFTER USING ALL DUE AND REASONABLE DILIGENCE THE ASSESSEE COULD NOT BE FOUN D AND THAT THERE WAS NO LIKELIHOOD OF HIS BEING FOUND AT THE R ESIDENCE WITHIN A REASONABLE TIME. EVEN NO AFFIDAVIT OF THE SERVING O FFICER WAS FILED ALONG WITH THE RETURN REPORT OF THE ORDER/NOTICE VERIFYING THE ABOVE FACTS AND JUSTIFYING SUBSTITUTED SERVICE THRO UGH AFFIXTURE ON THE ALREADY LEFT OVER HOUSE OF THE ASSESSEE. THE NO TICES, SENT BY THE AO THROUGH REGISTERED POST, HAD BEEN RECEIVED B ACK WITH THE REMARKS ADDRESSEE LEFT. UNDER THE CIRCUMSTANCES, WHEN THE ASSESSING OFFICER WAS WELL AWARE OF THE FACT THAT T HE ASSESSEE/DIRECTORS WERE NOT RESIDING IN THE HOUSE A T WHICH THE AFFIXTURE WAS DONE, THE SERVICE THROUGH AFFIXTURE W AS MEANINGLESS. NO OTHER MODE OF SUBSTITUTED SERVICE WAS ADOPTED BY THE AO. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS RA VINDRA NATH GHOSH [1971] 82 ITR 888 (SC) WHILE EXAMINING THE V ALIDITY OF THE SERVICE AS PER THE PROVISION OF RULE 17 ORDER V OF THE CPC HAS OBSERVED AS UNDER: 10. AS SEEN EARLIER THE CONTENTION OF THE ASSESSEE S WAS THAT AT THE RELEVANT TIME THEY HAD NO PLACE OF BUSINESS. THE REPORT OF THE SERVING OFFICER DOES NOT MENTION THE NAMES AND ADDR ESSES OF THE PERSON WHO IDENTIFIED THE PLACE OF BUSINESS OF TH E ASSESSEES. THAT OFFICER DOES NOT MENTION IN HIS REPORT NOR IN THE A FFIDAVIT FILED BY HIM THAT HE PERSONALLY KNEW THE PLACE OF BUSINESS OF THE ASSESSEES. HENCE, THE SERVICE OF NOTICE MUST BE HELD TO BE NOT IN ACCORDANCE WITH THE LAW. THE POSSIBILITY OF HIS HAVING GONE TO A WRONG PLACE CANNOT BE RULED OUT. THE HIGH COURT AFTER GOING IN TO THE FACTS OF THE CASE VERY ELABORATELY, AFTER EXAMINING SEVERAL WITNESSES, HAS COME TO THE CONCLUSION THAT THE SERVICE MADE WAS N OT A PROPER SERVICE. HENCE, IT IS NOT POSSIBLE TO HOLD THAT THE ASSESSEES HAD BEEN GIVEN A PROPER OPPORTUNITY TO PUT FORWARD THEI R CASE AS REQUIRED BY SECTION 33B. 15. FURTHER, THE HONBLE PUNJAB & HARYANA HIGH COUR T IN THE CASE OF CIT VS SHER SINGH [2013] 37 TAXMANN.COM 418 (P&H) HAS OBSERVED THAT WHERE ASSESSING OFFICER CAME TO KNOW THAT ASSESSEE IS NOT RESIDING AT HIS LAST KNOWN ADDRESS, HE SHOUL D FOLLOW PROCEDURE OF SUBSTITUTED SERVICE OF NOTICE UNDER CPC; SERVICE BY AFFIXATION AT SAID LAST KNOWN ADDRESS WOULD BE INVALID. THE RELE VANT PART OF THE ORDER OF THE HONBLE HIGH COURT IS REPRODUCED AS UN DER:- 6. THE REPORT LEAVES NO AMBIGUITY THAT THE ASSESSI NG OFFICER WAS AWARE THAT THE RESPONDENT IS NOT RESIDING AT HIS LA ST KNOWN ADDRESS BUT SURPRISINGLY PERSISTED IN ORDERING SERVICE BY A FFIXATION, AT THIS ADDRESS. AT THIS STAGE IT WOULD BE APPROPRIATE TO CLARIFY THAT IF THE REVENUE IS AWARE THAT AN ASSESSEE IS NOT RESIDING AT HIS LAST KNOWN ADDRESS, AN ASSESSING OFFICER, WOULD BE REQUIRED TO SEARCH FOR THE ASSESSEE'S NEW ADDRESS AND IF STILL NOT AVAILABLE, SERVE THE ASSESSEE IN ACCORDANCE WITH PROCEDURE FOR SUBSTITUTED SERVIC E AND PUBLICATION ETC. PRESCRIBED BY THE CODE OF CIVIL PR OCEDURE. IN THE ABSENCE OF ANY ERROR OF JURISDICTION OF LAW IN THE IMPUGNED ORDERS, WE EXPRESS OUR INABILITY TO ENTERTAIN THE APPEAL ON THE QUESTIONS OF LAW AS SET OUT IN THE MEMORANDUM OF APPEAL BUT PRO CEED TO CONSIDER WHETHER QUESTIONS OF LAW FRAMED BY COUNSEL FOR THE REVENUE IN COURT SHOULD BE ANSWERED. THE QUESTIONS ARE AS UNDER:- (1) 'WHETHER DEFECT IN SERVICE WOULD ENTAIL SETTING ASIDE OF THE SHOW CAUSE NOTICE ALONG WITH ASSESSMENT ORDER; AND (2) WHETHER IN SUCH A SITUATION THE CIT(A) OR THE I .T.A.T SHOULD HAVE DIRECTED THE ASSESSING OFFICER TO PROCEED FROM THE STAGE OF SERVICE?' 7. A DUE CONSIDERATION OF THE ARGUMENTS ADDRESSED F OR AND AGAINST THESE QUESTIONS REVEALS THAT THEY RAISE SUB STANTIAL QUESTIONS OF LAW AS SETTING ASIDE OF AN ASSESSMENT ORDER WOUL D NOT ENTAIL SETTING ASIDE OF THE SHOW CAUSE NOTICE. THE ORDER PASSED BY THE ASSESSING OFFICER WAS HELD TO BE ILLEGAL FOR WANT OF VALID SERVICE. THE SHOW CAUSE NOTICE, HOWEVER, HAS NOT BEEN HELD T O BE INVALID AND, THEREFORE, SUBSISTS. THE C.I.T(A) OF THE TRIBU NAL, WERE, THEREFORE, REQUIRED WHILE SETTING ASIDE ORDER PASSED BY ASSESS ING OFFICER FOR WANT OF VALID SERVICE TO RESTORE THE MATTER TO TH E OFFICE OF THE ASSESSING OFFICER FOR PROCEEDING AFRESH FROM THE ST AGE OF SERVICE OF SHOW CAUSE NOTICE, INSTEAD OF ALLOWING THE ASSESSEE TO GO SCOT FREE. FAILURE TO ADOPT SUCH A COURSE HAS LED THE APPELLAT E AUTHORITY AND THE I.T.A.T TO COMMIT AN ERROR OF JURISDICTION. 8. THE QUESTIONS OF LAW ARE, THEREFORE, ANSWERED BY HOLDING THAT IF SERVICE UPON AN ASSESSEE IS HELD TO BE ILLEGAL THE CIT(A) OR THE ITAT WOULD BE REQUIRED TO RESTORE THE SHOW CAUSE NOTICE TO THE ASSESSING OFFICER FROM THE STAGE OF SERVICE, FOR AD JUDICATION AFRESH AND IN ACCORDANCE WITH LAW, SUBJECT, HOWEVER TO ANY LEGAL OBJECTIONS THAT MAY BE AVAILABLE TO THE ASSESSEE TO BE RAISED AT THE APPROPRIATE STAGE BEFORE THE ASSESSING OFFICER. 9. IN THIS VIEW OF THE MATTER, WHILE AFFIRMING O RDERS PASSED BY THE CIT(A) OR THE I.T.A.T, WITH RESPECT TO ILLEGALI TY OF THE ASSESSMENT ORDER FOR WANT OF VALID SERVICE, THE MATTER IS REMI TTED TO THE ASSESSING OFFICER TO ADJUDICATE THE SHOW CAUSE NOTI CE AFRESH FROM THE STAGE PRIOR TO INITIATION OF EX-PARTE PROCEEDIN GS, AND WHILE DOING SO CONSIDER RELEVANT PROVISIONS OF LAW AS WEL L AS OBJECTIONS AND JUDGMENTS, REFERRED TO BY THE RESPONDENT. THE A PPEAL STANDS DISPOSED OF ACCORDINGLY. 16. FURTHER, AS OBSERVED ABOVE, THE COUNSEL HAS EXP LAINED THAT THE ASSESSMENT FRAMED IN THIS CASE IS HIGHLY AGGRAV ATED AND HIGH PITCHED ASSESSMENT AND THE ASSESSEE HAD NOT GOT REA SONABLE OPPORTUNITY OF DEFENDING ITS CASE AS THE ASSESSMENT S HAVE BEEN FRAMED EX-PARTE OF THE ASSESSEE U/S 144 OF THE I.T. ACT. THE ASSESSEE HAS ALSO EXPLAINED THE CIRCUMSTANCES BEYOND THE CON TROL OF ITS DIRECTORS, WHICH CONSTITUTE SUFFICIENT CAUSE FOR TH EIR NON-PRESENCE BEFORE THE AO. IN VIEW OF THE ABOVE, THE IMPUG NED ORDER OF THE CIT(A) IS LIABLE TO BE SET ASIDE. FURTHER AT THI S STAGE, REQUIRING THE CIT(A) TO DECIDE THE RECTIFICATION APPLICATION PEND ING BEFORE HIM WILL NOT SOLVE ANY USEFUL PURPOSE AS WE HAVE ALREAD Y ADJUDICATED UPON THE RELEVANT ISSUES. FURTHER, IT WILL RESULT I NTO MULTIPLICITY OF LITIGATION. IN VIEW OF THIS, THE IMPUGNED ORDER OF THE CIT(A) IS HEREBY SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF AO FOR DENOVO ASSESSMENT. NEEDLESS TO SAY THAT ASSESSING O FFICER WILL GIVE TO PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE AND AT THE SAME TIME IT IS DIRECTED THAT THE ASSESSEE WO ULD NOT DELIBERATELY CONTRIBUTE IN DELAYING THE CONCLUSION OF THE PROCEEDINGS. 17. SINCE THE FACTS AND CIRCUMSTANCES INVOLVED IN ALL THE CAPTIONED APPEALS ARE IDENTICAL, HENCE, IN VIEW OF OUR OBSERVATIONS MADE ABOVE, ALL THE CAPTIONED APPEALS ARE RESTORED TO THE FILE OF THE AO IN SIMILAR TERMS FOR DENOVO A SSESSMENT. 8. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT SIN CE THE FACTS IN THE PRESENT CASES WERE IDENTICAL TO THAT IN THE APP EALS DECIDED BY THE ITAT AS ABOVE OF ASSESSEES BELONGING TO THE SAM E GROUP, THE IMPUGNED APPEALS ALSO BE RESTORED BACK TO THE ASSES SING OFFICER. 10. THE LD. DR FAIRLY CONCEDED THAT IDENTICAL ISSU E HAD BEEN DECIDED BY THE ITAT IN THE AFOREMENTIONED CASES. 11. WE HAVE HEARD THE CONTENTIONS MADE BEFORE US A ND HAVE ALSO GONE THROUGH THE ORDER OF THE AUTHORITIES BELO W. WE HAVE ALSO GONE THROUGH THE ORDER OF THE ITAT REFERRED TO BEFO RE US DATED 31- 10-2017, IN ITA NO. 1056 TO 1061/CHD/2017 AND OTHER S, WHICH ADMITTEDLY RELATE TO ASSESSES BELONGING TO THE SAM E GROUP AS THE IMPUGNED ASSESSES AND WHICH WERE SUBJECTED TO SEARC H ACTION ON 12.10.10. WE HAVE NOTED THAT IN THOSE CASES ALSO T HE APPEALS FILED BEFORE THE CIT(A) WERE DELAYED FOR FILING, THE REAS ON FOR WHICH WAS IDENTICAL AS THAT IN THE IMPUGNED APPEALS BEFORE US , AS BEING THE PECULIAR AND PRESSING PERSONAL AND BUSINESS CIRCUMS TANCES PREVAILING. WE HAVE NOTED THAT THE ITAT, HAD CONSID ERING THE PREVAILING CIRCUMSTANCES ,CONDONED THE DELAY AND FU RTHER ON NOTING THAT EVEN THE ASSESSMENT ORDER WAS EXPARTE H AD RESTORED THE CASES BACK TO THE AO FOR DENOVO ASSESSMENT. SIN CE THE FACTS AND CIRCUMSTANCES LEADING TO THE DELAY IN FILING AP PEAL BEFORE THE LD.CIT(A) IN THE PRESENT APPEALS IS IDENTICAL TO TH AT DECIDED BY THE ITAT AS AFORESAID AND NO DISTINGUISHING FACTS HAVE BEEN BROUGHT TO OUR NOTICE BY THE LD.DR, THE PRESENT APPEALS ARE SQ UARELY COVERED BY THE SAID ORDER OF THE ITAT. FOLLOWING THE SAME WE SET ASIDE THE ORDER OF THE LD.CIT(A) IN THE IMPUGNED APPEALS AND RESTORE THE MATTER BACK TO THE ASSESSING OFFICER FOR DENOVO ASS ESSMENT. NEEDLESS TO ADD, THE ASSESSEE BE GRANTED FULL OPPO RTUNITY OF HEARING BY THE AO . IN EFFECT ALL THE APPEALS FILED BY THE DIFFERENT AS SESSEES IN QUANTUM PROCEEDINGS, I.E IN ITA NO. 1313 TO 1316, 1 325, 1327, 1321 AND 1322/CHD/2018, STAND ALLOWED FOR STATISTICAL PU RPOSES. 4. LD.COUNSEL FOR THE ASSESSEE STATED THAT IDENTICA L FACTS AND CIRCUMSTANCES, AS STATED BY THE ASSESSEE IN THE OTH ER YEARS, LEAD TO THE NON- PROSECUTION OF THE APPEAL IN THE PRESENT CASE ALSO AND THEREFORE THE DECISION OF THE ITAT IN THE OTHER APPEALS OF THE ASSESSEE WO ULD APPLY TO THE PRESENT APPEAL ALSO. IT WAS THEREFORE PLEADED THAT THE IMPU GNED APPEAL BE ALSO RESTORED BACK TO THE AO FOR HEARING AFRESH. 5. LD DR FAIRLY CONCEDED THAT THE FACTS AND CIRCUMS TANCES IN THE PRESENT CASE WERE IDENTICAL TO THAT IN THE CASE OF THE ASSE SSEE FOR A.Y. 2008-09 TO 2011- 12 WHICH HAVE BEEN DEALT WITH BY THE ITAT IN ITA NO . 1313 TO 1320/CHD/2018 ABOVE. 6. IN VIEW OF THE ABOVE, SINCE ADMITTEDLY THE SUCCE EDING YEARS RELATING TO THE BLOCK OF SIX YEARS WHICH WERE ASSESSED IN THE C ASE OF THE ASSESSEE ON ACCOUNT OF SEARCH UNDERTAKEN ON IT 12/10/2010, HAVE ALREADY BEEN ADJUDICATED BY THE ITAT VIDE ITS ORDER DT. 17/05/20 19 AND THE FACTS AND CIRCUMSTANCES ADMITTEDLY IN THE PRESENT CASE BEING IDENTICAL TO THAT IN THE SUBSEQUENT YEARS, THE DECISION RENDERED IN THOSE CA SES WILL APPLY TO THE PRESENT CASE ALSO FOLLOWING WHICH WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE AO FOR DENOVO ASSESSMENT. NE EDLESS TO ADD THE ASSESSEE BE GRANTED FULL OPPORTUNITY OF HEARING. TH E ISSUE RELATING TO LEVY OF PENALTY, BEING CONSEQUENTIAL TO THE ORDER PASSED IN QUANTUM PROCEEDINGS, IS ALSO RESTORED BACK TO THE AO TO BE DECIDED AFRESH . 7. IN EFFECT BOTH THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30/05/2019 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR