Deputy Commissioner of Income Tax-3 (1), Indore V. Shri Sanjeev Patni, Indore

ITA 189/Ind/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6276 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-03-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIB JAIN
• Assessee Lawyers: N D PATWA A RS
• Keywords: Capital asset converted into stock in trade; Salary income; Opportunity of being heard; Principle of natural justice; Reassessment proceedings; Capital Gains
• Section: 143(3); 142(1); 143(1); 143(2); 13; 22; 147; 69; 148; 144; 10; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE RAJPAL YADAV, VICE PRESIDENT AND SHRI MANISH BORAD, ACCOUNTANT MEMBER VIRTUAL HEARING ITA NO.62/IND/2018 ASSESSMENT YEAR: 2009-10 SANJEEV PATNI INDORE PAN:AFTPP6237Q : APPELLANT V/S ACIT- 3(1) INDORE : RESPONDENT ITANO.189/IND/2018 ASSESSMENT YEAR: 20109-10 ACIT- 3(1) INDORE : APPELLANT V/S SANJEEV PATNI INDORE PAN:AFTPP6237Q : RESPONDENT REVENUE BY SHRI RAJIB JAIN, CIT - DR RE SPONDENT BY SHRI ASHISH GOYAL & N.D. PATWA, ARS DATE OF HEARING 0 8 .0 6 .2021 DATE OF PRONOUNCEMENT 01 .0 9 . 202 1 O R D E R SANJEEV PATNI 2 PER MANISH BORAD, A.M THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE O F THE ASSESSEE & CROSS APPEAL BY THE REVENUE FOR ASSESSME NT YEAR 2009-10 ARE DIRECTED AGAINST THE ORDERS OF LD. COMM ISSIONER OF INCOME TAX(APPEALS) (IN SHORT LD. CIT]-I INDORE DA TED 13.11.2017 WHICH ARE ARISING OUT OF THE ORDER U/S 144 R.W.S. 1 47 OF THE INCOME TAX ACT 1961(IN SHORT THE ACT) DATED 23.03 .2016 FRAMED BY ACIT-3(1), INDORE. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL IN ITA NO.62/IND/2018: GROUND NO. 1 :- ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER D IN NOT HOLDING THAT THE REASSESSMENT PROCEEDINGS OF THE APPELLANT WERE ILLEGAL AS THE IN ITIATED BY THE LEARNED ASSESSING OFFICER WITHOUT SATISFYING THE MANDATORY JURISDICTIONAL CONDITION SET OUT IN SECTION 147 OF THE INCOME TAX ACT. 1961. GROUND NO. 2 :- ON FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN NOT QUASHING THE REASSESSMENT PROCEEDINGS AS ILLEGAL AND VOID AS THE SAME WERE WITHOUT ISSUING MANDATORY NOTICE U/S 143 (2) OF THE INCOME TAX ACT. 1961. GROUND NO. 3 :- ON FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED COMMISSIONER AL ERRED IN SUSTAINING THE DISALLOWANCE MADE BY THE LEARNED ASSESSING OFFICER OF APPELLANT'S FOR HO USE RENT ALLOWANCE U/S 10 (13A) OF THE INCOME TAX ACT, 1961 OF RS. 3,40,000/- FROM HIS SALARY INCOME. GROUND NO. 4 :- ON FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN SUSTAINING THE DISALLOWANCE MADE BY THE LEARNED ASSESSING OFFICER OF LOSS CLAIM ED BY E APPELLANT UNDER THE HEAD 'SHORT TERM CAPITAL GAINS' OF RS. 53,37,250/- FROM SALE OF SHARES. GROUND NO. 5 :- ON FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED COMMISSIONER APPEALS) ERRED IN SUSTAINING T O THE EXTENT OF RS. 4,05,223/- THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER U/S 69 OF SANJEEV PATNI 3 THE INCOME TAX ACT, 1961 TOWARDS ALLEGED UNEXPLAINE D CASH CREDITS IN APPELLANT'S BANK COUNTS. GROUND NO. 6 :- ON FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, BOTH THE LEARNED COMMISSIONER (APPEALS) AND THE LEARNED ASSESSING OFFICER ERRED. IN PASSING THEIR RESPECTIVE ORDERS WITHOUT G RANTING THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD. THE ORDERS PASSED BY THEM ARE IN CONTRAVENTION OF T HE PRINCIPLES OF NATURAL JUSTICE AND HENCE, BAD IN LAW. THE APPELLANT RESERVES THE RIGHT TO ADD, ALTER OR DELETE ANY OF THE ABOVE GROUNDS WITH PERMISSION OF THE HON'BLE TRIBUNAL. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL IN ITA NO.189IND/2018: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE} LD. CIT(A) WAS JUSTIFIED IN HOLDING THE AMOUNT OF RS. 1}30}S6A 74/- AS LONG TERM CAPITAL GAINS AND RESTRICTING THE ADDITION OF RS. 1 ,64,64,619/- TO RS. 4,05,223/- IN VIEW OF FINDINGS OF THE ASSESSING OFF ICER. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE LD. CIT(A) WAS JUSTIFIED IN TREATING THE SUM OF RS.1,30,56,474 /- AS PROCEEDS LIABLE TO LONG TERM CAPITAL GAINS INSTEAD OF SHORT TERM CA PITAL GAINS WITHOUT OFFERING ANY OPPORTUNITY TO ASSESSING OFFICER AND R ELYING ONLY ON COMPUTATION GIVEN BY ASSESSEE FOR HOLDING PERIOD. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE} LD. CIT(A) WAS JUSTIFIED IN RESTRICTING THE ADDITION OF RS. 1, 64,64,619/- BASED ON CREDITS IN BANK ACCOUNTS TO RS. 4,05,223/- ONLY WIT HOUT GIVING ANY OPPORTUNITY TO THE ASSESSING OFFICER REGARDING NATU RE AND SOURCE OF DEPOSITS IN THE BANK ACCOUNTS. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE} LD. CIT(A) IN JUSTIFIED EVEN WHEN PRINCIPLES OF NATURAL JUSTIC E HAVE NOT BEEN FOLLOWED WHILE DELETING ADDITION AT SL. NO.1, 2 & 3 ABOVE. ITA NO.62/IND/2018 (ASSESSEES APPEAL) SANJEEV PATNI 4 AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE SUB MITTED THAT IN THE APPEAL FILED BY THE ASSESSEE, THE ASSESSEE HAS RAISED THE LEGAL GROUND AS GROUND NO.2 WITH REGARD TO CHALLENGING TH E REASSESSMENT PROCEEDINGS AS ILLEGAL AND VOID AS THE SAME WERE WITHOUT ISSUING MANDATORY NOTICE U/S 143 (2) OF THE INCOME TAX ACT. 1961. SINCE THIS GROUND NO.2 BEING LEGAL IN NA TURE GOES TO THE ROOT OF THE MATTER, WE HAVE HEARD IT AT FIRST. 2. FACTS WITH REGARD TO THIS LEGAL GROUND ARE THAT THE ADDRESS OF THE ASSESSEE AS FILED IN RETURN OF INCOME U/S. 1 39 FOR THE ASSESSMENT YEAR 2009-10 IS 49-B CHANDRA NAGAR, A.B ROAD INDORE-452008 WHERE HIS FAMILY RESIDES. THE RETURN WAS FILED ON 18.09.2009. THE NOTICE U/S 148 WAS SENT AT 7-B CHANDRA NAGAR . THIS WAS THE ADDRESS IN WHICH ASSESSEE USED TO RE SIDE BEFORE 2003 FOR A VERY BRIEF PERIOD OF TIME. THE NO TICE U/S 148 WAS ACTUALLY DELIVERED TO 49-B CHANDRA NAGAR AND SIGNED BY THE FATHER OF ASSESSEE SINCE THIS WAS WITHIN 200 ME TERS RADIUS AND IN SAME COMPOUND. FURTHER, THE REASONS RECORDED BY THE ASSESSING OFFICER U/S 148 DATED 25.03.2015 ADDRESSE D TO 7-B CHANDRA NAGAR ALSO STATE THAT MR SANJEEV PATNI IS R ESIDING IN E1102, MATRI ELEGANCE, BANNERGHATTA ROAD, BANGALORE AND HIS PRINCIPAL PLACE OF EMPLOYMENT IS AT BANGALORE ONLY. IN REPLY TO SANJEEV PATNI 5 THE NOTICE U/S 148, IT WAS STATED THAT INCOME TAX R ETURN ALREADY FILED FOR A.Y. 2009-10 MAY BE CONSIDERED AS IN RESP ONSE TO COMPLIANCE U/S 148, THEREBY, RECONFIRMING THE ADDRE SS ALSO. COPY OF REASON READS AS UNDER: IN CONTINUATION OF PROCEEDINGS, FURTHER THE NOTICE U/S. 142(1) FOR PRODUCING THE BOOKS OF ACCOUNT AND OTHER RELATE D DOCUMENTS REGISTERS, VOUCHERS ETC. IN JUSTIFICATION OF INCOME FOR THE YEAR UNDER CONSIDERATION I.E. A.Y. 2009-10 DISCLOSED IN THE RETURN FILED IN COMPLIANCE OF NOTICE U/S. 148, FIXING DATE OF COMPLIANCE ON 29/06/2015 WAS ISSUED ON 25/06/2015 BY SPEED POS T WHICH WAS RECEIVED BACK ON 26/06/2015 WITH THE REMA RKS AS NOT AVAILABLE ON THE GIVEN ADDRESS. IN THE REMAND REPORT, IT IS STATED THAT THE NOTICE U/S. 143(2) DATED 25.06.2015 WAS ISSUED AND WAS RETURNED UNSERV ED. THE REMAND REPORT AT LAST 5 TH LINE ONWARDS, READS AS UNDER: IN CONTINUATION OF THE PROCEEDINGS THE NOTICE U/S. 143(2) AND 142(1) DATED 25/06/2015 ISSUED ON THE SAME ADDRESS ON WHICH NOTICE U/S. 148 WAS ALREADY SERVED. THE NOTIC E SO ISSUED U/S. 143(2) AND 142(1) WAS NOT SERVED AND RE TURNED BACK WITH POSTAL REMARK (COPY OF ENVELOP WITH POSTAL REMARK ENCLOSED). THE ADDRESS MENTIONED IN THE ENVELOPE IS 7-B CHANDRA NAGAR, A.B ROAD INDORE. PB 28. THE ASSESSING OFFICER, IN THE ASSESSMENT ORDER HAS STATED THAT ONLY NOTICE U/S. 1 42(1) WAS ISSUED ON 25.06.2015 WHEREAS IN THE REMAND REPORT, HE STATES THAT IN THE SAME ENVELOPE, NOTICE U/S. 143(2) WAS A LSO THERE. FURTHER, IN THE REMAND REPORT ONLY, THERE IS MENTIO N THAT SINCE SANJEEV PATNI 6 THE NOTICE DT. 25.06.2015 WAS UNSERVED, ANOTHER NOT ICE U/S. 143(2) WAS ISSUED. SAME IS MENTIONED AT LAST LINE O NWARDS AS UNDER: THEREFORE NOTICE U/S. 143(2) WAS AGAIN ISSUED ON T HE ADDRESS MENTIONED ON THE LATEST RETURN FILED FOR A.Y. 2014- 15 I.E. 49-B, CHANDRA NAGAR, A.B. ROAD, INDORE BEING LAST KNOWN A DDRESS AFFIXTURE WAS MADE BY THE ITI OF THIS OFFICE (COPY OF AFFIXTURE REPORT OF ITI IS ENCLOSED). IT IS MENTIONED IN THE REMAND REPORT THAT THE NOTIC E U/S. 143(2) DT. 06.07.2015 WAS SERVED BY AFFIXTURE. IT WAS ALLE GED THAT SINCE THE DOOR WAS LOCKED, NOTICE WAS AFFIXED AND TWO WIT NESSES HAVE SIGNED. 3. BEING AGGRIEVED, THE ASSESSEE CHALLENGED THE LEG ALITY OF THE REASSESSMENT PROCEEDINGS BEFORE THE LD. CIT(A) CLAI MING THAT THE NOTICE U/S 143(2) OF THE I.T. ACT WAS NOT SERVED ON THE ASSESSEE. BUT, THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASS ESSING OFFICER. BEING AGGRIEVED, THE ASSESSEE IS BEFORE THIS TRIBUN AL. 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE MANDATORY NOTICE U/S 143(2) WAS NOT SERVED ON T HE ASSESSEE AND HENCE THE ENTIRE REASSESSMENT PROCEEDINGS COMPL ETED BY THE ASSESSING OFFICER ARE NULL AND VOID. LD. COUNSEL FO R THE ASSESSEE SUBMITTED THAT AT THE NOTE OF INSPECTOR, NOWHERE TH E DETAILS OF INSPECTOR OR WITNESS, THEIR NAMES, ADDRESS, FATHER S NAME OR ANY SANJEEV PATNI 7 OTHER IDENTIFICATION IS PLACED. IT IS A SETTLED PRO POSITION OF LAW THAT SERVICE BY AFFIXTURE IS A PERMISSIBLE MODE OF SERVI CE, BUT A DETAILED PROCEDURE AS GIVEN UNDER RULE 17 & 19 OF THE ORDER V OF 1908 OF CODE OF CIVIL PROCEDURE IS APPLICABLE WHICH INDICATE THAT NOTICE BY AFFIXTURE CAN BE RESORTED ONLY AS A LAST RESORT, AFTER EXHAUSTING ALL OTHER MODES OF SERVICE. NOTICE BY AF FIXTURE CAN BE RESORTED ONLY IF DEFENDANT REFUSES TO SIGN THE ACKN OWLEDGEMENT, 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. FURT HER, IT IS THE RESPONSIBILITY OF THE SERVING OFFICER TO AFFIX A COPY OF THE SUMMONS ON THE OUTER DOOR OR SOME OTHER CONSPICUOUS PART OF THE HOUSE IN WHICH THE DEFENDANT ORDINARILY RESIDES OR CARRIES ON BUSINESS OR PERSONALLY WORKS FOR GAIN AND ALSO TO RETURN THE ORIGINAL TO THE COURT FROM WHICH IT WAS ISSUED, WIT H A REPORT ENDORSED THEREON OR ANNEXED THERETO STATING THAT HE HAS SO AFFIXED THE COPY EXPLAINING THE CIRCUMSTANCES UNDER WHICH HE DID SANJEEV PATNI 8 SO WITH THE NAME AND ADDRESS OF THE PERSON (IF ANY) BY WHOM THE HOUSE WAS IDENTIFIED AND IN WHOSE PRESENCE THE COPY WAS AFFIXED. BUT, IN THE PRESENT CASE, STILL DUE PROCESS OF LAW AS ABOVE WAS NOT FOLLOWED. IN FACT, NOTICE ON THE ADDRESS (49-B, CHA NDRA NAGAR) WAS NEVER SENT THROUGH POST AND THE INSPECTORS NOT E IS NOT SUPPORTED BY ANY AFFIDAVIT UNDER RULE 19. HIS REPOR T COULD HAVE BEEN ACCEPTED ONLY IF HE WOULD HAVE GIVEN AFFIDAVIT . THE ASSESSEE ALSO APPLIED TO THE ASSESSING OFFICER FOR CROSS-EXA MINATION OF THE INSPECTOR AND WITNESS BUT THE SAME WAS NOT DONE BY THE ASSESSING OFFICER. FURTHER, THE FACTS RELATED TO AF FIXTURE OF NOTICE CANNOT BE TRUE IN THE LIGHT OF THE AFFIDAVIT FROM S HRI RAJIV PATNI (BROTHER OF ASSESSEE) WHEREIN HE SUBMITTED THAT NO NOTICE WAS SERVED ON THROUGH AFFIXURE. THEREFORE, THE SERVICE OF NOTICE BY AFFIXTURE IS NOT A VALID SERVICE IN THE PRESENT CAS E AND THUS, THE REASSESSMENT PROCEEDINGS ARE BAD-IN-LAW AND DESERVE TO BE QUASHED. 5. PER CONTRA, LD. CIT-DR RELIED ON THE ORDERS OF T HE REVENUE AUTHORITIES AND SUBMITTED THAT THE ASSESSING OFFICE R MADE ALL POSSIBLE EFFORTS TO SERVE THE NOTICE ON THE ASSESSE E INCLUDING AFFIXURE, THEREFORE, THE NOTICE WAS RIGHTLY SERVED ON THE ASSESSEE. SANJEEV PATNI 9 6. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE NOTICE U/S 148 WAS SENT AT 7-B CHANDRA NAGAR . THIS WAS THE ADDRESS IN WHICH ASSESSEE USED TO RESIDE BEFORE 2003 FOR A VER Y BRIEF PERIOD OF TIME. THE REASONS RECORDED BY THE ASSESSING OF FICER U/S 148 DATED 25.03.2015 ADDRESSED TO 7-B CHANDRA NAGAR STA TE THAT MR SANJEEV PATNI IS RESIDING IN E1102, MATRI ELEGAN CE, BANNERGHATTA ROAD, BANGALORE AND HIS PRINCIPAL PLACE OF EMPLOYMENT IS AT BANGALORE ONLY. THUS, EVEN THOUGH THE RETURN OF INCOME WAS FILED FROM INDORE ADDRESS, THE ASSESS ING OFFICER WAS WELL AWARE THAT THE ASSESSEE WAS RESIDING AT BA NGALORE. IN REPLY TO THE NOTICE U/S 148, IT WAS STATED THAT INC OME TAX RETURN ALREADY FILED FOR A.Y. 2009-10 MAY BE CONSIDERED AS THE RETURN IN RESPONSE TO COMPLIANCE U/S 148, THEREBY, RECONFIRMI NG THE ADDRESS ALSO. WE FIND THAT IN THE ASSESSMENT ORDER, THERE IS NO MENTION OF ANY NOTICE U/S. 143(2) BEING ISSUED TO A SSESSEE. AFTER REFERRING TO THE RETURN FILED U/S. 148 AND MENTIONI NG THAT THE COPY OF REASONS WERE PROVIDED, IT WAS STATED THAT T HE NOTICE U/S. 142(1) FOR PRODUCING THE BOOKS OF ACCOUNT AND OTHER RELATED DOCUMENTS REGISTERS, VOUCHERS ETC. IN JUSTIFICATION OF INCOME FOR THE YEAR UNDER CONSIDERATION I.E. A.Y. 2009-10 DISC LOSED IN THE SANJEEV PATNI 10 RETURN FILED IN COMPLIANCE OF NOTICE U/S. 148, FIXI NG DATE OF COMPLIANCE ON 29/06/2015 WAS ISSUED ON 25/06/2015 B Y SPEED POST WHICH WAS RECEIVED BACK ON 26/06/2015 WITH THE REMARKS AS NOT AVAILABLE ON THE GIVEN ADDRESS. FROM THE PERUSAL OF NOTE SHEET, WE FIND THAT THAT NO MENTION IS MADE OF ANY NOTICE ISSUED IN THE YEAR 2015 PARTICULARLY OF NOTICE U/S. 143(2) . FURTHER, IN THE REMAND REPORT, IT WAS STATED THAT THE NOTICE U/S. 1 43(2) WAS ISSUED DATED 25.06.2015 AND WAS RETURNED UNSERVED. BUT, IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER STATED THAT ONLY NOTICE U/S. 142(1) WAS ISSUED ON 25.06.2015 WHEREAS IN THE REMAND REPORT, HE STATEED THAT IN THE SAME ENVELOPE, NOTIC E U/S. 143(2) WAS ALSO THERE. SUCH NOTICE U/S. 143(2) WAS NEVER B ROUGHT ON RECORD. FURTHER, IN THE REMAND REPORT ONLY, THERE I S MENTION THAT SINCE THE NOTICE DT. 25.06.2015 WAS UNSERVED, ANOTH ER NOTICE U/S. 143(2) WAS ISSUED AND IN THIS NOTICE ALSO, THE RE WAS NO DISPATCH NO., THUS, IF THIS NOTICE WAS ACTUALLY ISS UED, IT SHOULD HAVE BEEN GIVEN A DISPATCH NO. IT IS ALSO MENTIONED IN THE REMAND REPORT THAT THE NOTICE U/S. 143(2) DT. 06.07.2015 W AS SERVED BY AFFIXTURE. A NOTE ON AFFIXTURE BY THE INSPECTOR IS PUT ON NOTICE U/S. 143(2) WHEREIN IT WAS ALLEGED THAT SINCE THE D OOR WAS LOCKED, NOTICE WAS AFFIXED AND TWO WITNESSES HAVE SIGNED. W E FIND THAT SANJEEV PATNI 11 NOWHERE ON THE NOTE OF INSPECTOR, THE DETAILS OF IN SPECTOR OR WITNESS, THEIR NAMES, ADDRESS, FATHERS NAME OR ANY OTHER IDENTIFICATION IS PLACED. FURTHER, THE ASSESSEE ALS O APPLIED TO THE ASSESSING OFFICER FOR DETAILS OF THE WITNESS AND CR OSS-EXAMINATION OF INSPECTOR AND THE WITNESS. BUT, THE ASSESSING OF FICER DID NOTHING IN THIS REGARD. WE FIND THAT IT IS A SETTLE D PROPOSITION OF LAW THAT SERVICE BY AFFIXTURE IS A PERMISSIBLE MODE OF SERVICE, BUT A DETAILED PROCEDURE AS GIVEN UNDER RULE 17 OF THE ORDER V OF 1908 OF CODE OF CIVIL PROCEDURE IS APPLICABLE AS UN DER: 17. WHERE THE DEFENDANT OR HIS AGENT OR SUCH OTHER PERSON AS AFORESAID REFUSES TO SIGN THE ACKNOWLEDGEMENT, OR W HERE THE SERVING OFFICER, AFTER USING ALL DUE AND REASONABLE DILIGEN CE, 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 T HERE IS NO LIKELIHOOD OF HIS BEING FOUND AT THE RESIDENCE WITHIN A REASON ABLE TIME AND THERE IS NO AGENT EMPOWERED TO ACCEPT SERVICE OF THE SUMM ONS ON HIS BEHALF, NOR ANY OTHER PERSON ON WHOM SERVICE CAN BE MADE, T HE SERVING OFFICER SHALL AFFIX A COPY OF THE SUMMONS ON 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, WITH A REPORT ENDORSED THEREON OR ANNEXED THERETO STATING THAT HE HAS SO AFFIXED THE COPY, THE CIRCUMSTANCES UNDER WHICH HE DID SO, AND THE NAME AND ADDRESS OF THE PERSON (IF ANY) BY WHOM THE HOUSE WA S IDENTIFIED AND IN WHOSE PRESENCE THE COPY WAS AFFIXED. FURTHER, UNDER RULE 19 IT IS PROVIDED THAT: '19. EXAMINATION OF SERVING OFFICER WHERE A SUMMONS IS RETURNED UNDER RULE 17, THE COUR T SHALL, IF THE RETURN UNDER THAT RULE HAS NOT BEEN VERIFIED BY THE AFFIDAVIT OF THE SERVING OFFICER, AND MAY, IF IT HAS BEEN SO VERIFIE D, EXAMINE THE SERVING OFFICER ON OATH, OR CAUSE HIM TO BE SO EXAMINED BY ANOTHER COURT, TOUCHING HIS PROCEEDINGS, AND MAY MAKE SUCH FURTHER ENQUIRY IN THE MATTER AS IT THINKS FIT; AND SHALL EITHER DECLARE T HAT THE SUMMONS HAS BEEN DULY SERVED OR ORDER SUCH SERVICE AS IT THINKS FIT. SANJEEV PATNI 12 7. FROM PERUSAL OF THE ABOVE, IT IS CLEAR THAT NOTI CE BY AFFIXTURE CAN BE RESORTED ONLY AS A LAST RESORT, AFTER EXHAUS TING ALL OTHER MODES OF SERVICE. NOTICE BY AFFIXTURE CAN BE RESORT ED ONLY IF: 1.(A) DEFENDANT REFUSES TO SIGN THE ACKNOWLEDGEMENT , OR 2.(B) WHERE THE SERVING OFFICER, AFTER USING ALL DU E 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 BEI NG 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. 3. IT IS THE RESPONSIBILITY OF THE SERVING OFFICER TO: (I) AFFIX A COPY OF THE SUMMONS ON THE OUTER DOOR O R SOME OTHER CONSPICUOUS PART OF THE HOUSE IN WHICH THE DEFENDAN T ORDINARILY RESIDES OR CARRIES ON BUSINESS OR PERSONALLY WORKS FOR GAIN, (II) RETURN THE ORIGINAL TO THE COURT FROM WHICH IT WAS ISSUED, WITH A REPORT ENDORSED THEREON OR ANNEXED THERETO STATING (A)THAT HE HAS SO AFFIXED THE COPY, (B) THE CIRCUMSTANCES UNDER WHICH HE DID SO, (C)THE NAME AND ADDRESS OF THE PERSON (IF ANY) BY W HOM THE HOUSE WAS IDENTIFIED AND IN WHOSE PRESENCE THE COPY WAS A FFIXED . 8. THUS, IN THE PRESENT CASE, ASSUMING THAT THE INS PECTOR DID THE SERVICE, STILL DUE PROCESS OF LAW AS ABOVE WAS NOT FOLLOWED. IF WHEN HE VISITED, THE HOUSE WAS LOCKED, HE SHOULD HA VE EXERCISED DUE DILIGENCE TO VERIFY AS TO WHEN THE ASSESSEE WIL L RETURN. IN FACT, NOTICE ON THIS ADDRESS WAS NEVER SENT THROUGH POST. WHY SERVICE OF NOTICE ON BANGALORE ADDRESS WAS NEVER TRIED. HOW INSPECTOR WAS SURE THAT THERE IS NO LIKELIHOOD OF ASSESSEE BE ING FOUND AT THE RESIDENCE WITHIN A REASONABLE TIME. ALSO, CIRCU MSTANCES UNDER WHICH HE HAD TO DO SERVICE BY AFFIXTURE WERE NOT MENTIONED. ALSO, THE NAME AND ADDRESS OF THE WITNES S WERE NOT SANJEEV PATNI 13 MENTIONED. ALSO, THE INSPECTORS NOTE IS REQUIRED T O BE SUPPORTED BY ANY AFFIDAVIT OF INSPECTOR UNDER RULE 19. HIS RE PORT COULD HAVE BEEN ACCEPTED ONLY IF: - (A) HE HAS GIVEN AFFIDAVIT; OR (B) IF HE HAS NOT GIVEN AFFIDAVIT, ONLY AFTER EXAMI NATION OF SERVING OFFICER (INSPECTOR) ON OATH . FURTHER, IN ANY CASE, THE COURT MAY MAKE SUCH FURTH ER ENQUIRY IN THE MATTER AS IT THINKS FIT; AND SHALL EITHER DE CLARE THAT THE SUMMONS HAS BEEN DULY SERVED OR ORDER SUCH SERVICE AS IT THINKS FIT. THE ASSESSEE APPLIED TO THE ASSESSING OFFICER FOR CROSS- EXAMINATION OF THE INSPECTOR AND WITNESS. BUT, THE SAME WAS NOT DONE BY THE ASSESSING OFFICER. THEREFORE, WE ARE OF THE VIEW THAT THE SERVICE OF NOTICE BY AFFIXTURE IS NOT A VALID S ERVICE IN THE PRESENT CASE AS SERVICE BY AFFIXTURE IS SUBSTITUTED SERVICE AND SINCE IT IS NOT DIRECT OR PERSONAL SERVICE UPON THE DEFENDANT, TO BIND HIM BY SUCH MODE OF SERVICE, THE MERE FORMALIT Y OF AFFIXTURE IS NOT SUFFICIENT. THE ASSESSING OFFICER FAILED TO COMPLIED WITH THE REQUISITE PROCEDURE AS LAID DOWN IN THE PROCEDURE F OR SERVICE OF SUMMONS/NOTICE AND, THEREFORE, THE PROCEDURE LAID D OWN THEREIN CANNOT BE SURPASSED BECAUSE THE INTENTION OF THE LE GISLATURE BEHIND THESE PROVISIONS IS THAT STRICT COMPLIANCE O F THE PROCEDURE LAID DOWN THEREIN HAS TO BE MADE. THE EXPRESSION A FTER USING ALL SANJEEV PATNI 14 DUE AND REASONABLE DILIGENCE APPEARING IN RULE 17 HAS BEEN CONSIDERED IN MANY CASES AND IT HAS BEEN HELD THAT UNLESS A REAL AND SUBSTANTIAL EFFORT HAS BEEN MADE TO FIND THE DE FENDANT AFTER PROPER ENQUIRIES, THE SERVING OFFICER CANNOT BE DEE MED TO HAVE EXERCISED DUE AND REASONABLE DILIGENCE. BEFORE TA KING ADVANTAGE OF RULE 17, HE MUST MAKE DILIGENT SEARCH FOR THE PE RSON TO BE SERVED. ANOTHER REQUIREMENT OF RULE 17 IS THAT THE SERVING OFFICER SHOULD STATE THAT HE HAS AFFIXED THE COPY OF SUMMON S AS PER THIS RULE; THE CIRCUMSTANCES UNDER WHICH HE DID SO; THE NAME AND ADDRESS OF THE PERSON BY WHOM THE HOUSE OR PREMISES WERE IDENTIFIED; IN WHOSE PREMISES THE COPY OF THE SUMMO N WAS AFFIXED AND THESE FACTS SHOULD ALSO BE VERIFIED BY AN AFFID AVIT OF THE SERVING OFFICER. THIS VIEW IS SUPPORTED BY THE RATI O LAID DOWN IN CASE OF WORLD WIDE EXPORTS (P.) LTD. [2004] 91 ITD 519 (DEL). WE FIND THAT THE FACTS RELATED TO AFFIXTURE OF NOTICE CANNOT BE TRUE IN LIGHT OF THE AFFIDAVIT FROM SHRI RAJIV PATNI (BROTHE R OF ASSESSEE) WHICH STATES AS UNDER: A. THEY RESIDE IN 49B CHANDRA NAGAR, A.B ROAD INDORE S INCE PAST 17 YEARS WITH HIS FAMILY MEMBERS COMPRISING OF PARE NTS, WIFE, SON AND DAUGHTER-IN-LAW. B. ALSO AFFIRMED THAT HIS BROTHERS ADDRESS WAS BANGAL ORE ADDRESS. HIS BROTHER USED THIS ADDRESS AS CORRESPONDENCE ADD RESS FOR SAKE OF CONVENIENCE. C. DUE TO OLD AGE AND MEDICAL REASONS, THE FATHER WAS ALWAYS AT HOME ALONG WITH ONE FAMILY MEMBER AND THE HOUSE WAS NEVER LOCKED. SANJEEV PATNI 15 D. IT IS NOT POSSIBLE THAT ANY NOTICE REMAIN UNSERVED WITH THE REMARK THAT NO ONE WAS AVAILABLE AT HOME. E. IN THE MONTH OF JULY 2015, IT IS NOT POSSIBLE THAT ANY NOTICE MAY BE AFFIXED BY ANY INCOME TAX REPRESENTATIVE AS MANY ACTIVITIES WERE GOING ON IN THE HOUSE REGARDING WEDDING OF SID DHARTH PATNI (SON OF RAJIV PATNI) . THUS, THE FACT THAT NO NOTICE WAS AFFIXED AND REMAI NED UNSERVED WAS CONFIRMED THROUGH THE ABOVE AFFIDAVIT. FURTHER, WE ARE OF THE VIEW THAT THE INSPECTOR HAD TO RESORT TO SERVICE OF NOTICE BY AFFIXTURE AFTER PURPORTEDLY EXHAUSTING ALL MODES OF SERVICE, BUT NOWHERE IN THE ASSESSMENT ORDER AND IN THE NOTE SHE ET OR IN THE INSPECTORS NOTE, ANY DETAILS OF SERVICE THROUGH IN SPECTOR WAS MENTIONED. THIS VIEW IS SUPPORTED BY THE RATIO LAID DOWN IN CASE OF SANJAY BADANI (2014) 50 TAXMANN.COM 457 (ITAT, MU MBAI) WHEREIN IT WAS HELD AS UNDER: WE HAVE TO DECIDE WHETHER THERE WAS SERVICE OF NOT ICE U/S.143(2) MUCH LESS A PROPER SERVICE AS PER RULE 1 7 OF ORDER V OF CPC, WHICH REQUIRES THAT BEFORE SERVICE OF NOTIC E BY AFFIXTURE, NOTICE SERVER/SERVICE OFFICER MUST MAKE DILIGENT SE ARCH FOR PERSON TO BE SERVED AND, HE, THEREFORE MUST TAKE PAIN TO F IND HIM AND ALSO TO MAKE MENTION OF HIS EFFORTS IN REPORT. THE SERVING OFFICER SHOULD ALSO STATE IN HIS REPORT THE CIRCUMSTANCES U NDER WHICH HE DID SO AND THE NAME AND ADDRESS OF THE PERSON BY WH OM HOUSE OR PREMISES WERE IDENTIFIED AND IN WHOSE PREMISES C OPY OF SUMMON WAS AFFIXED, OTHERWISE SUCH SERVICE COULD NO T BE ACCEPTED TO BE A LEGALLY VALID SERVICE OF NOTICE U/ S.143(2). 9. IN CASE OF CIT V. RAMENDRA NATH GHOSH [1971] 82 ITR 888 (SC), THE HONBLE APEX COURT HELD AS UNDER: THE CONTENTION OF THE ASSESSEES WAS THAT AT THE REL EVANT TIME THEY HAD NO PLACE OF BUSINESS. THE REPORT OF THE SERVING OFFICER DID NOT MENTION THE NAMES AND ADDRESSES OF THE PERSON WHO I DENTIFIED THE SANJEEV PATNI 16 PLACE OF BUSINESS OF THE ASSESSEES. THAT OFFICER DI D NOT MENTION IN HIS REPORT NOR IN THE AFFIDAVIT FILED BY HIM THAT H E PERSONALLY KNEW THE PLACE OF BUSINESS OF THE ASSESSEE. HENCE, THE S ERVICE OF NOTICE MUST BE HELD TO BE NOT IN ACCORDANCE WITH THE LAW. THE POSSIBILITY OF HIS HAVING GONE TO A WRONG PLACE COULD NOT BE RULED OUT. HENCE, IT WAS NOT POSSIBLE TO HOLD THAT THE ASSESSEES HAD BEE N GIVEN A PROPER OPPORTUNITY TO PUT FORWARD THEIR CASE AS REQUIRED B Y SECTION 33B. IN THE PRESENT CASE ALSO, THE SERVING OFFICER COULD NOT STATE IN HIS REPORT THE ANY NAME AND ADDRESS OF THE WITNESSES WH O HAVE IDENTIFIED THE HOUSE OF THE ASSESSEE AND IN WHOSE P RESENCE THE NOTICE WAS AFFIXED. FURTHER, THE AFFIDAVIT IN ASSES SMENT RECORDS IS MISSING THUS IN CONTRAVENTION OF RULE 20 OF ORDER V OF CPC 1908. WE FIND THAT IN CASE OF JAGANNATH PRASAD [1977] 110 ITR 27 (ALL.), THE HONBLE ALLAHABAD HIGH COURT HELD AS UN DER: THE REPORT GIVEN BY THE PROCESS SERVER WAS TO THE EFFECT THAT HE HAD MADE ENQUIRIES AT A NUMBER OF PLACES BUT COU LD NOT FIND OUT THE ASSESSEE. AFTER THIS REPORT THE ITO PA SSED AN ORDER FOR AFFIXTURE. FROM THE MERE FACT THAT THE PR OCESS SERVER COULD NOT FIND OUT THE ASSESSEE IT WOULD NOT LEAD T O THE CONCLUSION THAT THE ASSESSEE WAS KEEPING OUT OF THE WAY FOR THE PURPOSE OF AVOIDING SERVICE OR THAT FOR ANY OTH ER REASON THE NOTICE COULD NOT BE SERVED. THE REPORT DID NOT INDICATE THAT MORE THAN ONE ATTEMPT WAS MADE BY THE PROCESS SERVE R. ON THE CONTRARY, IT INDICATED THAT ON A SINGLE ATTEMPT HE ENQUIRED AT A NUMBER OF PLACES BUT COULD NOT FIND OUT THE AS SESSEE. THIS COULD NOT CONSTITUTE SUFFICIENT MATERIAL FOR T HE SATISFACTION OF THE ITO THAT THE CONDITIONS REQUISITE FOR THE AP PLICATION OF ORDER V, RULE 20, EXISTED. THE ORDER OF THE ITO DIR ECTING SERVICE BY AFFIXTURE WAS BASED ON NO RELEVANT MATERIAL ON T HE RECORD AND, AS SUCH, HAD TO BE STRUCK DOWN. ACCORDINGLY, N OTICES OF DEMAND AND ORDER OF ATTACHMENT OF PROPERTY WERE QUA SHED. IN PRESENT CASE ALSO, THERE WAS ONLY SINGLE ATTEMPT BY THE INSPECTOR AND THE REASON ENUMERATED WAS THAT DOOR W AS LOCKED. THUS THE FINDINGS OF ABOVE CASE ARE SQUARELY APPLIC ABLE IN SANJEEV PATNI 17 ASSESSEES CASE. IN VIEW OF THE ABOVE JUDICIAL PRONO UNCEMENTS, WE ARE OF THE VIEW THAT THE NOTICE BY AFFIXTURE NEEDS TO BE DONE IN ACCORDANCE WITH PROCEDURE LAID DOWN IN BY ORDER V, RULE 17-20 OF CPC. OUR OBSERVATIONS ARE ALSO SUPPORTED BY THE RAT IO LAID DOWN IN THE FOLLOWING JUDICIAL PRONOUNCEMENTS: NAVEEN CHANDE [2010] 323 ITR 49 (PUNJAB & HARYANA); KISHAN CHAND [2010] 328 ITR 173 (PUNJ. & HAR); CIT V. SHITAL PRASAD KHARAG PRASAD[2006] 280 ITR 54 1/[2005] 147 TAXMAN 441; AND RAM SINGH MATHUR [2007] 112 TTJ 989 (DELHI) (ITAT D ELHI BENCH). 10. WE FURTHER FIND THAT THIS TRIBUNAL VIDE ORDER D ATED 20.5.2021 IN THE CASE OF M/S. SWASTIK COAL CORPORAT ION P. LTD., INDORE IN ITA NO. FOR THE A.Y. 477/IND/2013 ( A.Y. 2005-06) HAS DECIDED THE IDENTICAL ISSUE OF SERVICE OF NOTICE U/S 143(2) OF THE I.T. ACT AND THE RATIO LAI D DOWN IN THIS DECISION IS APPLICABLE TO THE FACTS OF THE PRE SENT CASE. THE RELEVANT PORTION OF THE ORDER OF THE TRIBUNAL P ASSED ON 25.5.2021 (SUPRA) IS REPRODUCED HEREUNDER: HOWEVER, BEFORE ARGUING THE MATTER ON MERIT, THE L D. COUNSEL APPEARING FOR THE ASSESSEE RAISED PRELIMIN ARY OBJECTION IN REGARD TO THE SERVING OF NOTICE U/S 14 3(2) OF THE ACT DATED 31.08.2009 WHILE INITIATING THE ASSESSMEN T PROCEEDINGS. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 30.09.2008. IT IS SUBMITTED BY THE LD. COUNSEL A PPEARING FOR THE ASSESSEE THAT THE IMPUGNED ASSESSMENT ORDE R U/S 143(2) OF THE ACT WAS CLAIMED TO HAVE BEEN PASSED AFTER DUE PROCESS OF THE LAW BY SERVING NOTICE IN DUE TIME IN TERMS OF PROVISO TO SECTION 143(2) BUT THE SAME HAS NOT BEEN SERVED IN TERMS OF THE PROCEDURE LAID DOWN BY THE PROVISION U NDER SECTION 282 OF THE ACT. IN THAT VIEW OF THE MATTER, IT WAS ULTIMATELY CONTENDED BY THE LD. AR THAT THE IMPUGN ED ORDER IS BAD IN LAW AND IS LIABLE TO BE QUASHED. SANJEEV PATNI 18 2. ON THE CONTRARY LD. DR CONTENDED THAT THE NOTIC E DATED 03.09.2009 U/S 143(3) OF THE ACT WAS DULY DISCHARGE D THROUGH SPEED POST FOLLOWED BY ANOTHER NOTICE BY TH E NOTICE SERVERS NAMELY SHRI PREM N. JOSHI ON 4.9.2009. TH E PROOF OF THE TWO SERVICES ARE ON RECORD BEFORE THE REVENUE AND DULY SUBMITTED BEFORE THE LD. TRIBUNAL AND THEREFORE, A CCORDING TO THE LD. DR IT HAS BEEN ASSUMED THAT THE NOTICE SERV ED WAS ENTERED IN THE SCRUTINY PENDENCY REGISTER. HENCE, T HE PLEA OF THE ORDER BEING PASSED WITHOUT DUE PROCESS OF LAW IS NOT TENABLE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY THE RESPECTIVE PARTIES ON THE GROUND OF MAINTAINABILITY OF THE ASSESSMENT PROCEEDINGS. WE HAVE ALSO PERUSED THE A VAILABLE RECORDS. THE CASE OF THE ASSESSEE IS THIS THAT THE NOTICE U/S 143(2) AND 142(1) OF THE ACT WAS RECEIVED FOR THE F IRST TIME IN 21.7.2010 BY AND UNDER THE NOTICE DATED 14.07.2010 FIXING THE DATE OF HEARING ON 12.8.2010. SUCH FACT WAS BR OUGHT TO THE NOTICE OF LD. A.O BY AND UNDER A LETTER DATED 1 2.8.2010 ISSUED BY THE ASSESSEE AS APPEARS AT PAGE 55 OF THE PAPER BOOK SUBMITTED BEFORE US. SUCH OBJECTION WAS ALSO FILED ON 03.09.2010 OWING TO NON AVAILABILITY OF LD. A.O. IN FACT CERTIFIED TRUE COPY OF THE ASSESSMENT PROCEEDINGS WAS ALSO OBTAINED FROM ACIT-5(1), INDORE WHO ISSUED THE ALLE GED FIRST NOTICE ISSUED U/S 143(2) OF THE ACT. IT APPEARS TH AT THE SAID REVENUE OFFICER HIMSELF ADMITTED THAT SAID FIRST NO TICE U/S 143(2) OF THE ACT WAS NOT SERVED ON TIME BEFORE 30. 09.2009, AS IT REFLECTS AT PAGE 54 BEING THE MEMO DATED 30.0 9.2010 UNDER THE SIGNATURE OF ACIT-5(1), INDORE WRITTEN TO THE APPELLANT COMPANY. IT WAS FURTHER CONTENDED BY THE SAID REVENUE OFFICER THAT THE NOTICE U/S 143(2) OF THE A CT FOR THE ASSESSMENT PROCEEDINGS FOR THE RELEVANT ASSESSMENT YEAR WAS SENT BY SPEED POST ON 03.09.2010 VIDE DISPATCH NO.1221/03.09.2009 AS WELL AS THROUGH NOTICE SERVER BY THE OFFICE OF THE LD. ACIT-5(1), INDORE AND CLAIMED TO HAVE BEEN DULY SERVED UPON THE VERY NEXT DAY I.E. 04.09.2010. THIS MEMO DATED 30.09.2010 WAS ISSUED WHILE REPLYING THE OBJECTION AS IT IS EVIDENT FROM PAGE 55 OF THE PAPE R BOOK SUBMITTED BEFORE US. THE ASSESSEE RAISED HIS OBJECT ION ON 12.08.2010 CHALLENGING THE VERACITY OF THE PROCEEDI NG SINCE THE NOTICE UNDER SECTION 143(2) AND 143(1) OF THE ACT BOTH DATED 14.07.2010 FOR ASSESSMENT YEAR 2008-09 WAS RE CEIVED ONLY ON 17.07.2010. IT WAS CONTENDED BY THE ASSESS EE THAT THE SAME OUGHT TO HAVE BEEN SERVED U/S 143(2) OF TH E ACT BEFORE 30.09.2009. IT IS RELEVANT TO MENTION THAT THE PROVISO TO CLAUSE II SUB SECTION (2) OF SECTION 143 SPEAKS AS FOLLOWS:- SANJEEV PATNI 19 PROVIDED THAT NO NOTICE UNDER THIS SUB-SECTION SH ALL BE SERVED UPON THE ASSESSEE AFTER THE EXPIRY OF SIX M ONTHS FROM THE END OF FINANCIAL YEAR IN WHICH RETURN IS FURNISHED. THEREFORE, ADMITTEDLY THE NOTICE ISSUED IS BEYOND THE PERIOD AS STIPULATED UNDER PROVISO OF SECTION 143(2 ) OF THE ACT AND THE ENTIRE PROCEEDINGS WAS, THUS, PRAYED TO BE DROPPED BY THE APPELLANT. IT IS SURPRISED TO NOTE THAT TH E PHOTO COPY OF THE SPEED POST ENVELOPE DISPATCH NO.1221 WAS PLACED ON RECORD BY THE REVENUE. WITH OUR LIMITED UNDERSTAN DING, W FAILED TO FOLLOW THAT IF THE SAID ENVELOPE CONTAINI NG THE NOTICE IS SENT TO THE ASSESSEE AND RECEIVED BY THEM THEN A S TO HOW THE SAME COULD REACH THE SENDER I.E. THE OFFICE OF THE CONCERNED REVENUE OFFICER AND THIS COULD BE KEPT IN THE FILE. SECONDLY THE NOTICE WHICH HAS BEEN CLAIMED TO HAVE BEEN SERVED UPON THE ASSESSEE THROUGH OFFICE SERVER THE ACKNOWLEDGEMENT WHEREOF SPEAK ABOUT THE DETAILS OF THE PERSON RECEIVING THE SAME. IN FACT THE NOTICE SERV ER SHRI PREM N JOSHI FAILED TO PROVE ON RECORD THE NAME/DESIGNATION/IDENTIFICATION OF THE PERSON TO WH OM THE SAME WAS DELIVERED. IT WAS CONTENDED BY THE APPELL ANT THAT THE SIGNATURE OF THE IMPUGNED NOTICE DOES NOT BELON G TO ANY OF THE OFFICER/DIRECTOR OR EMPLOYEE OF THE COMPANY. I T IS RELEVANT TO NOTE THAT THIS FACT HAS NOT BEEN CONTROVERTED B Y THE REVENUE. NO SUCH EVIDENCE INDICATING RECEIVING NOTI CE GENUINELY ON BEHALF OF THE ASSESSEE IS FORTHCOMING FROM THE REVENUE IN ORDER TO SUBSTANTIATE THAT THE SERVICE H AS ACTUALLY BEEN AFFECTED. THE LD. DR HAS NOT BEEN ABLE TO SATI SFY US ON THIS ASPECT. IN THAT EVENT WE DO NOT HESITATE TO C ONCLUDE THAT THE PROVISION OF SERVICE OF NOTICE AS STIPULATED UN DER SECTION 282 OF THE ACT AS IF IT IS A SUMMON ISSUED BY A COU RT UNDER THE CODE OF CIVIL PROCEDURE, 1908 (5 OF 1908) HAS NOT B EEN COMPLIED WITH IN ITS TRUE SPIRIT, IN THE ABSENCE OF DISCLOSURE OF IDENTIFICATION OF THE PERSON TO WHOM THE SERVICE WA S ULTIMATELY EFFECTED. THE LD. A.O FAILED TO BRING ANY MATERIAL ON RECORD TO SHOW THAT THE NOTICE U/S 143(2) OF THE ACT WAS SERV ED ON THE ASSESSEE WITHIN THE STIPULATED PERIOD I.E. 30.09.20 09 BEFORE THE EXPIRY OF 6 MONTHS FROM THE END OF THE FINANCIA L YEAR IN WHICH THE RETURN IS FURNISHED. THUS, IT CANNOT BE HELD TO BE A VALID SERVICE OF NOTICE ON THE ASSESSEE. IN THIS R EGARD WE HAVE CONSIDERED THE JUDGMENT RELIED UPON BY THE LD. AR S OME OF WHICH ARE DISCUSSED HEREIN BELOW:- THE HONBLE DELHI HIGH COURT IN THE CASE OF M.L. NARANG/ R.L. NARANG REPORTED IN (1981) 6 TAXMANN 61 SANJEEV PATNI 20 (DELHI). IN THIS PARTICULAR CASE REVENUE HAS FAILE D TO SHOW THAT THE SERVICES WAS EFFECTED ON 3.2.1969 EITHER O N THE ASSESSEE CONCERNED OR IN ANY OTHER EMPLOYEES, RELAT IVES OR ANY OTHER AUTHORISED REPRESENTATIVES. THERE WAS NO THING ON RECORD TO SHOW THE IDENTITY OF THE PERSON ON WHOM T HE SERVICE WAS EFFECTED AND THUS IT WAS HELD THAT THE SERVICE WAS NOT EFFECTED ON THE ASSESSEE CONCERNED ON 3.02.1969. ON AN IDENTICAL SITUATION THE HON,BLE HIGH COURT OF ALLAHABAD IN THE CASE OF DR. Y.D. SINGH, B.R.D. MED ICAL COLLEGE REPORTED IN (2012) 20 TAXMANN.COM 174(ALL.) , OBSERVED AT PARA 5 THAT IT WAS CLAIMED THAT THE SAID NOTICE WAS SERVED ON SHRI MURLI DHAR VAISH NO SUCH CLAIM MADE BY T HE DEPARTMENT THAT IT WAS SERVED ON CERTAIN SPECIFIC P ERSON. LATER THE SERVER INSPECTOR DID NOT STATE ANY SPECIF IC PERSON ON WHOM HE MADE THE DELIVERY. IT WAS FURTHER OBSERVED THAT PERSONAL SERVICE WOULD NOT BE A VALID SERVICE OF NO TICE, IF IT HAS NOT BEEN MADE EITHER ON THE PERSON MENTIONED THERE OR AN AGENT DULY AUTHORISED TO RECEIVE NOTICE AS PROVIDED UNDER SECTION 282 OF THE ACT. FINALLY, SINCE THERE HAVE BEEN NO ENTRY IN THE ORDER SHEET REGARDING THE ISSUANCE AND SERVI CE OF NOTICE U/S 143(2) OF THE ACT, THE CONTENTION OF THE ASSESS EE THAT NO SUCH SERVICE WAS EVER ISSUED WHAT IS TO SAY OF SERV ICE OF THE SAME ON THE ASSESSEE OR ON HIS AUTHORISED REPRESENT ATIVE HAS BEEN ACCEPTED BY THE COURT. IN ANOTHER JUDGMENT THE HONBLE TRIBUNAL, LUCKNOW BENCHES IN THE CASE OF NRIPENDRA MISHRA REPORTED I N (2009) 121 TTJ 701 (LUCKNOW) HELD IN PARA 11 THAT IN FACT THE REVENUE HAD NOT PROVED THE IDENTITY OF PERSON. THU S THE REVENUE HAD NOT PROVED ON RECORD THAT THE NOTICE UN DER SECTION 143(2) WAS SERVED UPON THE AGENT OF THE ASSESSEE. IN SUCH CIRCUMSTANCES, THE ASSESSMENT ORDER PASSED BY THE A SSESSING OFFICER HAD TO BE ANNULLED . 4. THUS, TAKING INTO CONSIDERATION OF THE ENTIRE AS PECT OF THE MATTER WE ARE OF THE CONSIDERED VIEW THAT UNLES S THERE IS SERVICE OF NOTICE IN ACCORDANCE WITH PROVISION UNDE R SECTION 282 OF THE ACT SEPARATELY SPECIFYING MODE OF SERVIC E OF NOTICE, IT CANNOT BE TREATED AS VALID SERVICE OF NOTICE. I N THE CASE IN HAND THE REVENUE HAS FAILED TO SHOW, THAT SERVICE O F NOTICE UNDER SECTION 143(2) OF THE ACT EFFECTED WITHIN THE STIPULATED TIME UNDER THE PROVISIONS OF SECTION 143(2) OF THE ACT ON THE ASSESSEE OR ON ANY OF THEIR EMPLOYEES/ RELATIVES OR ANY AUTHORIZED REPRESENTATIVES PARTICULARLY IN ADHERENC E TO PROVISION UNDER SECTION 282 OF THE ACT EITHER BY PO ST OR AS IF IT WERE A SUMMONS ISSUED BY A COURT UNDER THE CODE OF CIVIL PROCEDURE, 1908 (5 OF 908). SANJEEV PATNI 21 IN THAT VIEW OF THE MATTER THE SERVICE OF NOTICE U NDER SECTION 143(2) OF THE ACT, IN OUR CONSIDERED OPINION IS NO SERVICE. SINCE THE INITIATION OF THE PROCEEDING IS NOT IN AD HERENCE TO THE PRESCRIBED RULES, THE ENTIRE PROCEEDING IS VITIATED AND HENCE QUASHED. CONSEQUENTLY, ALL ACTION TAKEN THERE UNDE R IS BAD. THE IMPUGNED ADDITION, MADE BY THE REVENUE IS, THUS , HEREBY DELETED. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. 11. IN VIEW OF THE ABOVE FACTS IN THE LIGHT OF THE AFORESAID JUDICIAL PRONOUNCEMENTS, WE ARE OF THE VIEW THAT TH E REASSESSMENT PROCEEDINGS, SO INITIATED, ARE BAD IN LAW AS THE ASSESSING OFFICER FAILED TO SERVE THE NOTICE U/S 143(2) OF THE I.T. ACT ON THE ASSESSEE. ACCORDINGLY, WE QU ASH THE ASSESSMENT ORDER FRAMED U/S 144 R.W.S. 147 OF THE I T ACT FOR A.Y.2009-10. 12. SINCE WE HAVE QUASHED THE ASSESSMENT ORDER ITSE LF, WE ARE REFRAINING OURSELVES TO DECIDE OTHER GROUNDS ON MERITS RAISED IN THE APPEAL FILED BY THE ASSESSEE A ND REVENUE BECOMING NOW ACADEMIC IN NATURE AS THE SAME WOULD NOT SERVE ANY PURPOSE. THUS, SINCE THE ASSESS MENT ORDER IS QUASHED, THE GROUNDS RAISED IN THE APPEAL OF THE ASSESSEE STAND ALLOWED WHEREAS THE GROUNDS RAISED I N THE APPEAL OF THE REVENUE STAND DISMISSED. SANJEEV PATNI 22 13. IN THE RESULT, THE ASSESSEES APPEAL I.E. ITA N O. 62/IND/2018 IS ALLOWED WHEREAS THE APPEAL FILED BY THE REVENUE I.E. ITA NO.189/IND/2018 IS DISMISSED. ORDER PRONOUNCED AS PER RULE 34 OF ITAT RULES, 1963 ON 01.09.2021. SD/- SD/- (RAJPAL YADAV) (MANISH BORAD) VICE PRESIDENT ACCOUNTANT ME MBER / DATED : 01.09.2021 !VYAS! COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE