Sh. Shridhar Bedi Through L/H, Phagwara V. Income Tax Officer, Phagwara

ITA 2/ASR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3288 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 20-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-05-2018
• Assessment Year: 2005-2006
• Appeal Filed On: 07-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A N MISHRA LD
• Keywords: Capital asset; Invalid notice; Principle of natural justice; Cost of acquisition; Reason to believe; Set aside
• Section: 271(1)(c); 143(3); 142(1); 234B; 133(6); 147; 131; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.02(ASR)/2017 ASSESSMENT YEAR:2005- 06 SH. SHRIDHAR BEDI THROUGH LEGAL HEIR SMT. SONIL BEDI BEDIAN MOHALLA, KHALWARA GATE, PHAGWARA PAN:AANPB6262C VS. INCOME TAX OFFICER WARD -3, PHAGWARA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. GUNJEET SINGH SYAL (A DV.) RESPONDENT BY: SH. A.N. MISHRA (LD. DR) DATE OF HEARING: 17.05.2018 DATE OF PRONOUNCEMENT: 15.06.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/APPELLANT, ON FEELING AGGRIEVED AGAINST THE ORD ER DATED 17.10.2016, IMPUGNED HEREIN, PASSED BY THE LD. CIT(A) -2, JALANDHAR, U/S 250(6) OF THE I.T. ACT, 1961 (HEREINAF TER CALLED AS THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEA L. 1. (A) THAT UNDER THE FACT AND CIRCUMSTANCES OF THE CA SE, THE PROCEEDINGS INITIATED BY THE LD. AO ARE BAD IN LAW AND WITHOUT AND/OR IN EXCESS JURISDICTION & CONSEQUENTLY REASSE SSMENT ORDER PASSED BY HIM U/S 147 SHOULD BE QUASHED AND ANNULLE D. ITA NO.02/ASR/2017 (A.Y:2005-06) SH. SHRIDHAR BEDI VS. ITO 2 (B) THAT THE WORTHY CIT(A)-2, JALANDHAR HAS FAILED TO A PPRECIATE THAT THE REASSESSMENT ORDER IS VOID ABINITIO, AS T HE INFORMATION AS TO LAND SOLD BY ASSESSEE HAVING EMANATED IN THE SEA RCH OF SI PARMINDER SINGH & OTHERS OF KAPURTHALA, ASSUMPTION OF JURISDICTION U/S 148 WAS BAD IN LAW. THIS PROPOSITION OF LAW IS SETTLED BY JURISDICTIONAL ITAT IN CASE OF ITO V/S ARUN KUMAR K APOC (2011)140TTJ249(ASR). (C ) THAT THE FIRST APPELLATE AUTHORITY HAS FAILE D TO APPRECIATE THAT NOTICE U/S 148 WAS NOT SERVED A PER LAW. (D) THAT WITHOUT PREJUDICE TO THE ABOVE, EVEN OT HERWISE INITIATION OF PROCEEDINGS U/S 147/148 WAS NOT WARRANTED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE R EASSESSMENT ORDER U/S 147 IS BAD FOR NON PLEADING OF LEGAL HEIR OF THE ASSESSEE. NON SERVICE OF STATUTORY NOTICES OR ASSESSMENT ORDE R ALSO VITIATES THE ASSESSMENT. 3. THAT THE FIRST APPELLATE AUTHORITY FAILED TO APPREC IATE THAT NON ISSUE/SERVICE OF STATUTORY NOTICE INVALIDATES REASS ESSMENT ORDER U/S 144. 4. THAT THE AUTHORITIES BELOW FAILED TO APPRECIATE THA T THE LAND IN QUESTION IN NOT A CAPITAL ASSET MUCH LESS TO BE BRO UGHT TO TAX UNDER THE HEAD INCOME FROM CAPITAL GAIN. 5. THAT THE REASSESSMENT ORDER HAS BEEN PASSED IN VIOL ATION OF PRINCIPLE OF NATURAL JUSTICE. 6. THAT THE AO HAS ESTIMATED THE COST OF ACQUISITION O N THE LOWER SIDE. 7. THAT THE ASSESSEE WAS ENTITLED TO BENEFIT OF SECTIO N 54F. 8. THAT INTEREST U/S 234B HAS WRONGLY BEEN CHARGED. 9. THAT PENALTY U/S 271(1)(C) HAS WRONGLY BEEN INITIAT ED. 10. ANY OTHER GROUND WITH THE PERMISSION OF THE BENCH. 3. THE BRIEF FACTS OF CASE ARE THAT THE PROCEEDINGS U/S 148 HAVE BEEN STARTED ON THE BASIS OF INFORMATION THAT TH E ASSESSEE HAS SOLD THE LAND MEASURING 12 KANALS 5 MARLAS IN PHAGW ARA FOR RS.45,93,750/- ON 02.03.2005 DURING THE FINANCIAL YE AR 2004-05 AND CAPITAL GAIN AROSE ON SUCH SALE OF PROPERTY. THE ASSESSE E HAS FILED HIS RETURN OF INCOME DECLARING INCOME OF RS.3,8 9,311/- ITA NO.02/ASR/2017 (A.Y:2005-06) SH. SHRIDHAR BEDI VS. ITO 3 FOR THE ASST. YEAR 2004-05 ON 10.07.2007 AND THE CASE W AS ASSESSED U/S 143(3) OF THE I.T. ACT ON DATED 02-09-2009 AT THE RETURNED INCOME AND RS.10,000/- AS AGRICULTURAL INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDING U/S 143(3), IT WAS OBSERVED THAT CAPITAL GAIN ON THE SAID SALE HAS NOT BEEN DISCLOSED BY THE ASSESSEE, HENCE NOTICE U/S 148 WAS ISSUED ON 29 TH MARCH, 2012 IN THE NAME OF THE ASSESSEE, WHICH CLAIMED T O BE SERVED THROUGH AFFIXTURE ON 31.03.2012 AT HIS LAST KNOWN ADDRESS BUT IN RESPONSE TO THE AFORESAID NOTICE, NO RETUR N WAS FILED, THEREFORE THE NOTICE U/S 142(1) OF THE ACT AS CLA IMED TO BE SERVED THROUGH AFFIXTURE ON 29 TH MAY, 2012, WHICH ALSO NOT YIELDED ANY RESULT. HOWEVER THEREAFTER, IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD DIED, ACCORDINGLY THE PROCEEDINGS WERE INITIATED AGAINST THE ONLY LEGAL HEI R OF THE ASSESSEE I.E. SMT. SONIL BEDI (DAUGHTER OF DECEASED ASSESSEE ) WHILE ISSUING NOTICE U/S 142(1) DATED 18.02.2013, WHICH ALSO CLAIMED TO BE SERVED THROUGH AFFIXTURE ONLY . EVEN I N RESPONSE TO THIS NOTICE DATED 18.02.2013 AS WELL, NEITHER ANY RETURN OF INCOME WAS FILED NOR ANY BODY ATTENDED THE PROCEEDINGS. IN VIEW OF THE AFORESAID FACTS, THE ASSESSING OFFICER FINDING NO AL TERNATIVE FRAMED THE ASSESSMENT U/S 144 OF THE ACT AND ADDED THE AMOUNT OF RS.45,93,750/- IN THE INCOME OF THE ASSESSEE AS LONG TERM CAPITAL GAIN ON THE SALE OF PROPERTY BY THE ASSESSEE . 4. THE ASSESSEE PREFERRED THE FIRST APPEAL BEFORE THE LD. CIT(A), WHO VIDE ORDER DATED 17.10.2016 DISMISSED THE APPEAL ITA NO.02/ASR/2017 (A.Y:2005-06) SH. SHRIDHAR BEDI VS. ITO 4 OF THE ASSESSEE AND THEREAFTER, THE ASSESSEE PREFERRED THE INSTANT APPEAL WHICH IS UNDER CONSIDERATION. 5. AT THE OUTSET, THE ASSESSEE EMPHASIZED ON THE GROUNDS NO.1(C), 2 AND 3, WHICH RELATES TO THE NON-SERVICE OF NO TICE U/S 148 AND 142(1) OF THE ACT AS PER LAW. THE LD. AR ARGU ED THAT IN THE INSTANT CASE, THE ASSESSEE HAD ALREADY EXPIRED ON 16.05.2010, HOWEVER, THE AO HAD ISSUED NOTICE DATED 29.03.2012 U/S 148 OF THE ACT IN THE NAME OF THE DECE ASED ASSESSEE, WHICH CLAIMED TO BE SERVED THROUGH AFFIXTURE ON 31- 03-2012 AND THEREAFTER, NOTICE U/S 142(1) DATED 29.05 .2012 WAS ISSUED WHICH ALSO CLAIMED TO BE SERVED THROUGH AFFIXTURE ON 29.05.2012. IT IS CLEARLY REFLECTS FROM PARA NO.2 OF TH E ASSESSMENT ORDER THAT NOTICE U/S 148 OF THE ACT WAS ISSUED ON 29.03.2012 AND WAS SERVED THROUGH AFFIXTURE ON 31.03. 2012. IT IS FURTHER REFLECTS FROM THE ASSESSMENT ORDER THAT THE SUBSEQUENT NOTICE U/S 142(1) WAS SERVED THROUGH AFFIXTUR E UPON THE LEGAL HEIR OF THE ASSESSEE. IT IS ADMITTED FACT THAT NO NOTICE U/S 148 AND 143(2) OF THE ACT IN THE NAME OF THE LEGA L HEIR SMT. SONIL BEDI WAS EVER ISSUED, THEREFORE, THE ASSESSMENT FRAM ED BY THE AO ON THE BASIS OF NOTICE ISSUED U/S 148 OF THE ACT IN THE NAME OF (DECEASED ASSESSEE) IS NOT ONLY INVALID BUT ALSO VI TIATE THE ENTIRE PROCEEDINGS AND HENCE, THE ADDITION IS LIABL E TO BE DELETED. THE LD. A R ALSO RELIED UPON VARIOUS JUDGME NTS INTER- ALIA CIT VS RAMENDRA NATH GOSH {1971(71) ITR 888}, CA LCUTTA DISCOUNT CO. LTD. VS. ITO {1961 (4) ITR 191 SC}, NARAY AN CHETTV VS ITO {1959(35) ITR 383 SC}, ETC ITA NO.02/ASR/2017 (A.Y:2005-06) SH. SHRIDHAR BEDI VS. ITO 5 6. ON THE OTHER HAND, IT WAS ARGUED BY THE LD. DR TH AT IT CLEARLY REFLECTS FROM THE ASSESSMENT ORDER THAT THE ASSESSING OFFICER INITIALLY ISSUED THE NOTICE IN THE NAME OF THE ASSESSEE, HOWEVER, AFTER COMING TO KNOW THAT ASSESSEE HAS ALREADY DIED, IMPLEADED THE SOLE LEGAL HEIR I.E. SMT. SONIL BEDI ( DAUGHTER OF DECEASED ASSESSEE) AND ISSUED NOTICE U/S 142(1) ON 18.02.201 3 BY WAY OF AFFIXTURE, HOWEVER, THE ASSESSING OFFICER DID NOT RECEIVE ANY RESPONSE FROM THE ASSESSEES SIDE AND IN THAT EVENTUALITY THE ASSESSING OFFICER FINDING NO OPTION, FR AMED THE ASSESSMENT U/S 144 OF THE ACT. EVEN OTHERWISE, THE LD. CIT (A) THOROUGHLY CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AS WELL AS ASSESSMENT ORDER IN THIS REGARD AND FINALLY HELD THAT TH E NOTICE HAS BEEN SERVED ON THE LAST KNOWN ADDRESS BY AFFIXTURE A ND THE LEGAL HEIR TO THE APPELLANT HAVE BEEN BROUGHT ON RE CORD, SINCE THE FACT OF DEMISE OF THE APPELLANT WAS BROUGHT TO THE NOTICE OF THE AO, THEREFORE, CONSIDERING ALL THE FACTORS, THE REA SSESSMENT PROCEEDINGS HAVE BEEN VALIDLY INITIATED BY DULY SERVIN G THE NOTICES. 7. WE HAVE GONE THROUGH THE RELEVANT RECORDS AND THE ORDERS PASSED BY THE AUTHORITIES BELOW AND ALSO CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND CHRONOLOGICAL DATES A ND EVENTS WHICH ARE VERY MUCH IMPORTANT FOR PROPER DISPOSAL OF THE INSTANT CASE, REPRODUCED HEREIN BELOW. 10.07.2007: RETURN OF INCOME FILED AT RS.3,89,311/- 25.08.2007: ASSESSMENT U/S 143(3) FRAMED. ITA NO.02/ASR/2017 (A.Y:2005-06) SH. SHRIDHAR BEDI VS. ITO 6 12.10.2009: NOTICE U/S 133(6) ISSUED BY ACIT, CC-1, JALANDHAR (COPY AT PAGE 15-16 OF PB) 21.10.2009: SUMMON U/S 131 FOR PERSONAL ATTENDANCE (COPY AT PAGE 17 OF PB) 16.05.2010: DATE OF DEATH OF SHRIDHAR BEDI (COPY AT PAGE 13 OF PB) 29.03.2012: ALLEGED NOTICE U/S 148 ISSUED IN THE N AME OF DECEASED ASSESSEE. 31.03.2012: ALLEGED AFFIXTURE OF NOTICE U/S 148 29.05.2012: ALLEGED NOTICE U/S 142(1) SERVED THROU GH AFFIXTURE ON DECEASED ASSESSEE. 18.02.2013: ALLEGED NOTICE U/S 142(1) SERVED THROU GH AFFIXTURE ON L/H SONIL BEDI. 18.03.2013: ALLEGED ASSESSMENT U/S 144 R.W.S.147 O F THE IT ACT. FROM THE CHRONOLOGICAL DATES AND EVENTS, IT IS CLEAR THA T THE ASSESSEE HAD EXPIRED ON 16 TH MAY, 2010 WHICH ALTHOUGH WAS NOT IN THE KNOWLEDGE OF THE REVENUE DEPARTMENT, HOW EVER, THE NOTICE U/S 148 WAS ISSUED ON 29 TH MARCH, 2012 IN THE NAME OF THE DECEASED ASSESSEE WHICH CLAIMED TO BE SERVED BY AFFIXTU RE ON 31 ST MARCH, 2012 AND AGAIN THE NOTICE U/S 142(1) CLAIMED TO BE SERVED THROUGH AFFIXTURE ON 29-05-2012 UPON THE D ECEASED ASSESSEE AND THEREAFTER, GETTING KNOWLEDGE ABOUT THE F ACTUM OF THE DEATH OF THE ASSESSEE, THE ASSESSING OFFICER INITIATED THE PROCEEDINGS AGAINST THE LEGAL HEIR OF THE ASSESSEE I.E. S MT. SONIL BEDI AND ISSUED A NOTICE U/S 142(1), WHICH ALSO CLAIMED TO BE SERVED ON 18.02.2013 THROUGH AFFIXTURE ONLY AND THER EAFTER FINDING NO RESPONSE FROM THE LEGAL HEIR, THE ASSESSING O FFICER FRAMED THE ASSESSMENT U/S 144 OF THE ACT. IT IS ADMITTED FACT OF THE CASE THAT THE INITIAL NOTICE U/S 148 WAS ISSUED IN THE NAME OF THE DECEASED ASSESSEE AND WAS SERVED THROUGH AFFIXTURE ONLY ITA NO.02/ASR/2017 (A.Y:2005-06) SH. SHRIDHAR BEDI VS. ITO 7 AND THEREAFTER NOTICE U/S 142(1) WAS ALSO SERVED TO THE DECEASED ASSESSEE ON 29.05.2012 THROUGH AFFIXTURE ONLY AN D THEREAFTER NOTICE U/S 142(1) DATED 18.02.2013 WAS ALSO SERVED TO THE SOLE LEGAL HEIR OF THE DECEASED ASSESSEE THROUGH AF FIXTURE ONLY WHICH GOES TO SHOW THAT THE ASSESSING OFFICER NEVER TRIED TO ISSUE THE NOTICE UNDER ORDINARY CIRCUMSTANCES OR BY WAY OF ORDINARY SERVICE. 7.1 RULES OF THE CODE OF CIVIL PROCEDURE, 1908 (HEREI NAFTER CALLED THE CPC) ARE APPLICABLE FOR ISSUING AND SERVICE OF THE NOTICES UNDER THE INCOME TAX ACT, THEREFORE, THE RELEVA NT RULES ARE REPRODUCED HEREIN BELOW FOR THE SAKE OF CONVENIENCE AND BREVITY. 7.2 RULE-1 OF ORDER V OF CPC, ENUMERATES THE PROCEDUR E FOR ISSUING THE SUMMONS AND ACCORDING TO THE RULE-10 OF ORDER -V OF CPC, SERVICE OF SUMMON(S) SHALL BE MADE BY DELIVERING OR TENDERING A COPY THEREOF SIGNED BY THE JUDGE OR SUCH OF FICER AS HE APPOINTS IN THIS BEHALF, AND SEAL OF THE COURT. 7.3 RULE 17 OF ORDER V FURTHER ENUMERATES THE PROCEDU RE WHEN DEFENDANT REFUSES TO ACCEPT THE SERVICE, OR CANNOT BE FOU ND. RULE 17 FURTHER MANDATES THAT WHERE THE DEFENDANT OR HIS AGENT OR SUCH OTHER PERSON AS AFORESAID REFUSES TO SIGN THE ACKNOWLEDGEMENT, OR WHERE THE SERVING OFFICER, AFTER USING ALL ITA NO.02/ASR/2017 (A.Y:2005-06) SH. SHRIDHAR BEDI VS. ITO 8 DUE AND REASONABLE DILIGENCE, CANNOT FIND THE AFORESAID PERSON, 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 THE SERV ICE OF THE SUMMONS ON HIS BEHALF, NOR ANY OTHER PERSONS ON WHOM SERVICE CAN BE MADE, THE SERVING OFFICER SHALL AFFIX A COP Y OF THE SUMMONS ON THE OUTER DOOR OR SOME OTHER CONSPICUOUS PART O F THE HOUSE IN WHICH THE DEFENDANT ORDINARILY RESIDES OR CARRIES ON BUSINESS OR PERSONALLY WORKS FOR GAIN. 7.4 FURTHER RULE 20 OF ORDER-V SPEAKS ABOUT THE SUBSTIT UTED SERVICES, ACCORDING TO THIS RULE, WHEN THE COURT IS SATISF IED THAT THERE IS A REASON TO BELIEVE THAT THE DEFENDANT IS KE EPING OUT OF THE WAY FOR THE PURPOSE OF AVOIDING SERVICE, OR THAT F OR ANY OTHER REASON THE SUMMONS CANNOT 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 AND ALSO U PON SOME CONSPICUOUS PART OF THE HOUSE (IF ANY) IN WHICH THE DEFENDANT IS KNOWN TO HAVE LAST RESIDED OR CARRIED ON BUSINESS OR PERSONALLY WORKED FOR GAIN, OR IN SUCH OTHER MANNER AS THE COURT THINKS FIT. 7.5 THE MANDATE OF RULE-1, 17 & 20 OF THE ORDER - V IS THAT ATTEMPT SHOULD BE MADE BY THE ASSESSING OFFICER FOR SERVI NG THE NOTICE IN THE ORDINARY WAY AND IF THE NOTICE CANNOT BE SERVED IN THE ORDINARY WAY ON THE REASON THAT THE ASSESSEE CANNOT B E ITA NO.02/ASR/2017 (A.Y:2005-06) SH. SHRIDHAR BEDI VS. ITO 9 FOUND, AFTER USING ALL DUE AND REASONABLE DILIGENCE AN D THERE IS NO LIKELIHOOD OF HIS BEING FOUND AT THE RESIDENCE WITH IN A REASONABLE TIME AND THERE IS NO AGENT EMPOWERED TO ACCE PT SERVICE OF THE SUMMONS ON HIS BEHALF, NOR ANY OTHER PERSO N ON WHOM SERVICE CAN BE MADE, AND THE ASSESSING OFFICER IS SATISFIED THAT THERE IS A REASON TO BELIEVE THAT THE ASSE SSEE IS KEEPING OUT OF THE WAY FOR THE PURPOSE OF AVOIDING SE RVICE, OR THAT FOR ANY OTHER REASON THE SUMMONS CANNOT BE SERVED I N THE ORDINARY WAY, THEN ONLY THE ASSESSING OFFICER CAN ORDER F OR SERVICE OF SUMMONS BY WAY OF AFFIXING A COPY THEREOF IN SOME CONSPICUOUS PLACE AS DEFINED UNDER RULE 20 OF ORDER-5 OF THE CPC BUT NOT OTHERWISE . 7.6 FROM THE ASSESSMENT ORDER, IT DOES NOT REFLECT THAT THE ASSESSING OFFICER HAD EVER TRIED TO ISSUE AND SERVE THE ALL EGED NOTICE(S) IN ORDINARY WAY AND AFTER EXHAUSTING ORDINAR Y ATTEMPT, WHILE RECORDING THE REASONS, ADOPTED THE SUBSTITUTED SERV ICE BY WAY OF AFFIXTURE UPON THE DECEASED ASSESSEE. AS IT IS CLEAR LY REFLECTS FROM THE CHRONOLOGICAL DATES AND EVENTS THAT NOT ICE U/S 148 WAS ISSUED IN THE NAME OF THE DECEASED ASSESSEE ON 29 TH MARCH, 2012 WHICH CLAIMED AS HAS BEEN SERVED THROUGH AFFI XTURE ON 31 ST MARCH, 2012 AND THEREAFTER NOTICE U/S 142(1) OF THE A CT CLAIMED AS HAS BEEN SERVED ON DATED 29 TH MAY, 2012 THROUGH AFFIXTURE ON THE DECEASED ASSESSEE, CREATES MANY DOUBTS WITH REGARD TO THE GENUINENESS OF THE SERVICE OF THE NOTICE O N THE DECEASED ASSESSEE BECAUSE IF THE NOTICE HAS BEEN SERVED ITA NO.02/ASR/2017 (A.Y:2005-06) SH. SHRIDHAR BEDI VS. ITO 10 THROUGH AFFIXTURE ON 31 ST MARCH, 2012 THEN CERTAINLY THE NOTICE SERVER WOULD HAVE USED HIS DUE AND REASONABLE DILIGENCE FOR NOT FINDING THE DECEASED ASSESSEE AND WOULD HAVE COME TO THE KNOWLEDGE ABOUT THE DEATH OF DECEASED ASSESSEE AND MUST HA VE COMMUNICATED THE SAID INFORMATION TO THE ASSESSING OFFICER AND THEREAFTER THE ASSESSING OFFICER WOULD HAD NO OPTION EXCE PT TO SUBSTITUTE THE ASSESSMENT PROCEEDINGS IN THE NAME OF THE L EGAL HEIR ONLY, HOWEVER, IT IS ADMITTED FACT THAT NOTICE 2 9.05.2012 U/S 142(1) WAS ALSO SERVED TO THE DECEASED ASSESSEE BY WAY OF AFFIXTURE AND THEREAFTER, GETTING THE KNOWLEDGE ABO UT THE DEATH OF THE ASSESSEE, THE ASSESSING OFFICER INITIATED THE ASSESSMENT PROCEEDING AGAINST THE SOLE LEGAL HEIR. THE NOTICE DATE D 18.02.2013 U/S 142(1) HAS ALSO BEEN CLAIMED AS SERVED UPO N THE LEGAL HEIR, THROUGH AFFIXTURE ONLY. WHILE SERVIN G THE NOTICE THROUGH SUBSTITUTED SERVICE TO THE SOLE LEGAL HEIR OF TH E ASSESSEE, THE ASSESSING OFFICER NEVER TRIED TO SERVE THE LEGAL HE IR IN THE ORDINARY WAY, HOWEVER MADE AN ATTEMPT ONLY THROUGH SUBSTITUTED SERVICE WHICH ALSO CREATE LOTS OF DOUBTS ABOUT S ERVICE AND VALIDITY OF THE NOTICES WHICH ACCORDING TO OUR MIND IS NOT MERE PROCEDURAL REQUIREMENT BUT MANDATORY. 7.7 THE JUDGMENTS RELIED UPON BY THE LD. AR, IN SUPPO RT OF ASSESSEE'S CASE SPEAKS ABOUT ONE THING ONLY THAT PROPER NOTI CE U/S 148 OF THE ACT FOR INITIATING REASSESSMENT PROCEEDING IS NOT A MERE PROCEDURAL REQUIREMENT BUT THE SERVICE OF THE PR ESCRIBED NOTICE ON THE ASSESSEE IS A CONDITION PRECEDENT TO THE VA LIDITY OF ANY OF THE REASSESSMENT MADE U/S 147. IT IS SETTLED LAW TH AT IF ITA NO.02/ASR/2017 (A.Y:2005-06) SH. SHRIDHAR BEDI VS. ITO 11 NO NOTICE IS ISSUED OR IF THE NOTICE ISSUED IS SHOWN TO BE INVALID THEN PROCEEDINGS INITIATED AND CARRIED BY THE INCOME TA X OFFICER WITHOUT A NOTICE OR IN PURSUANCE OF INVALID NOTICE WOUL D BE ILLEGAL AND VOID AND SHALL VITIATE THE ENTIRE PROCEEDINGS. IN THE AFORESAID ANALYZATION, WE DO NOT HAVE ANY HES ITATION TO HOLD THAT IN THE INSTANT CASE, NO NOTICE HAS EVER BEE N PROPERLY SERVED EITHER U/S 148 OR 142(1) OF THE ACT UPON THE DE CEASED ASSESSEE OR HIS SOLE LEGAL HEIR. THEREFORE, THE ASSESSMENT ORDER UNDER CHALLENGE CANNOT BE SUSTAINED AND IMPUGNED ORDER UNDER CHALLENGE LIABLE TO BE SET ASIDE UNDER THE LIMB OF NON - SERVICE/INVALID NOTICE ITSELF AND HENCE, THE ORDER PASSED BY THE LD. CIT(A) IS SET ASIDE AND THE ADDITION CONFIRMED BY THE LD. CIT(A) STANDS DELETED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.06.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:15.06.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. SHRIDHAR BEDI, KHALWARA GATE, PHAGWAR (2) THE INCOME TAX OFFICER, WARD-3, PHAGWARA (3) THE CIT(A)-2, JALANDHAR (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER