Arunkumar Anandrao Moundekar, Nagpur V. I.T.O. Ward 4(1), NAVI MUMBAI

ITA 274/NAG/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3276 (ITAT-NAGPUR)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-08-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 26-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Unexplained investment; Search and seizure; Procedural lapse; Assessment record; Revised return; Reason to believe; Reassessment proceedings
• Section: 142(1); 133A; 147; 131; 148; 6; 144; 2; 15; 139

Judgement Text

1 ITA NO S . 274 &275 /NAG/2015. IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO S . 274 & 275 /NAG/2015 ASSESSMENT YEAR : 200 3 - 04 . &2004 - 05. ARUNKUMAR ANANDRAO MOUNDEKAR, THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 4(1), NAGPUR. PAN AKYPM6700D. APPELLANT. RESPONDENT. APPELLANT BY : SHRI MANOJ MORY ANI RESPONDENT BY : SHRI A.R. NINAWE. DATE OF HEARING : 06 - 12 - 2016 DATE OF PRONOUNCEMENT : 5 TH JANUARY, 2017. O R D E R. T HESE ARE APPEALS BY THE ASSESSEE DIRECTED AGAINST RESPECTIVE ORDER S OF L EARNED CIT (APPEALS) FOR THE CONCERN ASSESSMENT YEARS. SINCE THE ISSUES ARE CONNECTED AND THE APPEALS WERE HEARD TOGETHER THESE ARE BEING CONSOLIDATED AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. AT THE OUTSET IT IS NOTED THAT THERE IS A DELAY OF 545 DAYS IN FILING THE APPEAL. IN THE PETITION FOR THE CONDONATION OF THE DELAY ASSESSEE HAS SUBMITTED AS UNDER: THE COMMISSIONER OF INCOME TAX (APPEALS) - I, NAGPUR HAS PASSED ORDER U/S 144 OF THE INCOME TAX ACT, ON 25 /02/2014 IN CASE OF THE DEPONENT (ASSESSEE). IN CASE OF THE DEPONENT EARLIER BRIEF WAS HANDED BY ADV. M. MANI 2 ITA NO S . 274 &275 /NAG/2015. SENIOR COUNSEL WHO IS NOT WELL DURING THOSE DAYS AND ULTIMATELY HE WAS EXPIRED ON 16/10/2014. THE DEPONENT (ASSESSEE) IS UNDER BONAFIDE IMPRESSIO N THAT EARLIER COUNSEL HAS FILED THE APPEAL AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS) - I, NAGPUR WITHIN A SPECIFIC TIME LIMIT, THEREFORE, THE DEPON E NT (A SSESSEE) HAS NOT FILED ANY APPEAL AGAINST THE ORDER. WHEN THE TAX RECOVERY OFFICER APPROACHED FOR RECOVERY OF DEMAND THE DEPONENT (ASSESSEE) CONTACTED IN THE OFFICE OF ADV. M. MANI AND RECEIVED THE FILE IN THE LAST WEEK OF JUNE, 2015. THEREAFTER, DEPONENT (ASSESSEE) APPROACHED TO NEW COUNSEL OFFICE ADV. MANOJ MORYANI AND AFTER GOING THRO UGH THE RECORD IT IS FOUND THAT THE APPEAL HAS NOT BEEN FILED AGAINST THE EX - PARTY ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - I, NAGPUR. THE DEPONENT (ASSESSEE) HAS FILED APPLICATION BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL, NAGPUR B ENCH, NAGPUR ON 26/10/2015 AND REQUEST THAT DELAY IN FILING OF APPEAL BY 555 DAYS MAY KINDLY BE CONDONED DUE O AFORESAID REASON. I N THIS REGARD NOTICE OF THE T AX R ECOVERY O FFICER DATED 29/07/2015 HAS ALSO BEEN SUBMITTED. 3. THE LEARNED COUNSEL OF THE ASSE SSEE HAS ALSO PLACED RELIANCE ON THE FOLLOWING CASE LAWS IN SUPPORT OF THE PLEA FOR CONDONATION OF THE DELAY. 1. 1981 AIR 1400 RAFIQ & ANR. VS. MUNSHILAL & ANR. 2. JUDGEMENT OF HONBLE SUPREME COURT OF INDIA DATED 03/09/1998 IN CASE OF M. BALKRISHNN VS. K RISHNAMURTHY. 3. (1987) 167 ITR 471 COLLECTOR, LAND ACQUISITION VS. MST. KATIJI & ORS. 4. (1988) 172 ITR 331 MAHAVEER PRASAD JIN VS. CIT. 5. (1982) 133 ITR 338 AVTAR KRISHAN DASS VS. CIT. 4. UPON CAREFUL CONSIDERATION AND HEARING BOTH THE PARTIES, I FIND THAT THERE IS CONSIDERABLE COGENCY IN THE SUBMISSION OF THE LEARNED COUNSEL OF THE ASSESS EE 3 ITA NO S . 274 &275 /NAG/2015. IN THIS REGARD. IT IS UNDISPUTED FACT THAT A DVOCATE M . MANI EXPIRED AFTER ILLNESS ON 16/10/2014. ASSESSEE S PLEA IS THAT HE WAS OF THE BONA FIDE BELIEF THAT HAVING HANDED OVER THE APPEAL PAPERS TO THE SAID ADVOCATE, THE NECESSARY APPEAL HAD BEEN FILED. HOWEVER LATER ON WHEN THE ASSESSEE RECEIVED NOTICE FROM THE T AX R ECOVERY O FFICER ON 29/07/2015 HE CAME TO KNOW THAT THE APPEAL HAS NOT BEE N FILED. THEREAFTER ASSESSEE APPOINTED NEW COUNSEL AND THE APPEAL WAS FILED WITHIN SHORT TIME. I FIND THAT THE ABOVE SUBMISSION IS COGENT AND IS SUPPORTED BY RELEVANT DOCUMENTS. IN THE CIRCUMSTANCES I A M OF THE CONSIDERED OPINION THAT THE DELAY IN THIS CASE DESERV ES TO BE CONDONED. IT IS SETTLED LAW THAT ASSESSEE HAS NO INHERENT BENEFIT IN NOT FILING AN APPEAL AGAINST AN ORDER AGAINST THE ASSESSEE. ACCORDINGLY THE DELAY IS CONDONED AND A PPEAL IS BEING ADJUDICATED. 5. THE COMMON GROUNDS OF APPEAL READ AS UNDER : 1 . THE ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I, NAGPUR U/S. 144 IS ILLEGAL, INVALID AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I ERRED IN CONFIRMING THE ADDITION M A DE BY THE ASSESSING OFFICER ON ESTIMATED BASI S, THEREFORE ORDER PASSED I UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPE A LS - I ERRED IN NOT ACCEPTING THE CONTENTION OF THE ASSESSEE THAT EARLIER BRIEF WAS HANDLED BY M. MANI, ADVOCATE, WHO IS NOT KEEPING WELL AND ULTIMATELY EXPIRED ON 16/10/2014, THEREFORE ORDER PASSED IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I NAGPUR ERRED IN CONFIRMING ADDITION OF RS.23,25,590/ - AND RS.18,73,790/ - FOR A.Y. 2003 - 04 AND A.Y. 200 4 - 05, THEREFORE ORDER P A SSED IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I, NAGPUR ERRED IN NOT ACCEPTING THE CONTENTION OF THE ASSESSEE AND WITHOUT GOING INTO TO THE MERITS OF CASE CONFIRMING THE ADDITION , THEREFORE ORDER PASSED IS ILLEGAL, INVALID AND BAD IN LAW. 6. T HE LEARNED COUNSEL OF THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUNDS AS UNDER : 4 ITA NO S . 274 &275 /NAG/2015. 1. THE NOTICE ISSUED U/S 148 OF I.T. ACT, 1961 IS ILLEGAL, INVALID AND BAD IN LAW AND CONSEQUENT ASSESSMENT F RAMED U/S 144 R.W.S. 147 OF I.T. ACT, 1961 IS LIABLE TO BE CANCELLED. 2. THE NOTICE ISSUED U/S 148 OF I.T. ACT, 1K961 IN THE CASE OF ASSESSEE HAS NOT BEEN SERVED ON ASSESSEE IN ACCORDANCE WITH LAW AND THE CONSEQUENT ASSESSMENT FRAMED THEREUPON IS ILLEGAL, INVALID AND BAD IN LAW AND LIABLE TO BE CANCELLED. 3. REASONS RECORDED FOR ISSUE OF NOTICE U/S 148 OF I.T. ACT, 1961 HAVING NOT BEEN PROVIDED TO ASSESSEE THE ASSESSMENT FRAMED IS LIABLE TO BE CANCELLED. 4. THE LEARNED ASSESSING OFFICER OUGHT TO HAVE TELES COPED THE INCOME AND UNEXPLAINED INVESTMENT WHILE DETERMINING TOTAL INCOME AT THE HANDS OF ASSESSEE. SINCE THE ADDITIONAL GROUND SOUGHT TO BE R A ISED BY THE ASSESSEE DO NOT INVOLVE INVESTIGATION OF NEW FACTS AND THE SAME RELATE TO INTERCONNECTED GROUNDS OF APPEAL AND HAVE IMPACT ON THE SAME SUBJECT MATTER AS WELL AS A LEGAL ISSUE WHICH GOES TO THE ROOT OF THE MATTER THEREFORE IT IS REQUESTED THAT KINDLY CONSIDER THE SAME IN THE INTEREST OF JUSTICE. 7. U PON HEARING BOTH THE COUNSEL AND PERUSING THE RECORDS I FIND THAT IN THE ADDITION AL GROUNDS QUESTIONS OF LAW HAVE BEEN RAISED. THEY ALSO GO TO THE ROOT OF THE MATTER. ACCORDINGLY ON THE ANVIL OF H ONOURABLE A PEX C OURT DECISION IN THE CASE OF NTPC 229 ITR 383 T HE ADDITION AL GROUNDS ARE BEING ADMITTED. 8. FIRST I DEAL WITH THE ISSUE OF THE VALIDITY OF SERVICE OF NOTICE. SINCE THE FACTS ARE IDENTICAL, I AM REFERRING TO THE FACTS AND FIGURES FROM ITA NO. 274/NAG/2015. 9. BRIEF FACTS OF THE CASE EN COMPASSING THE ISSUE RELATING TO THE ISSUE OF NOTICE AND THE ASSESSEE S CHALLENGE THEREOF HAS BEEN RECORDED BY THE AO IN THE ASSESSMENT ORDER AS UNDER : 5 ITA NO S . 274 &275 /NAG/2015. A SURVEY ACTION U/S 133A WAS CONDUCTED IN THE MOU NDEKAR GROUP ON 24.11.2008. DURING THE COURSE OF SURVEY PROCEEDINGS, SOME DOCUMENTS PERTAINING TO ASSESSEE AND HIS BUSINE SS WERE FOUND AND IMPOUNDED. A COPY OF ALL SUCH DOCUMENTS WAS GIVEN TO THE ASSESSEE. 2. THEREAFTER, NOTICE U/S 148 IN THE CASE FOR THE BELOW MENTIONED A.YS. WERE ISSUED BY THE ITO WARD 4(2), NAGPUR, AND SERVED BY WAY OF AFFIXTURE, ON THE BELOW MENTIONED DA TES. NAME OF ASSESSEE. A.Y. DATE OF SERVICE OF NOTICE. SH. ARUN A. MOUNDEKAR 2003 - 04 26.3.2009 SH. ARUN A. MOUNDEKAR 2004 - 05 26.3.2009 SH. ARUN A. MOUNDEKAR 2005 - 06 26.3.2009 SH. ARUN A. MOUNDEKAR 2006 - 07 26.3.2009 SH. ARUN A. MOUNDEKAR 2007 - 08 26.3.2009 M/S LAXMI ANAND BUILDERS & DEVELOPERS. 2003 - 04 26.3.2009 M/S LAXMI ANAND BUILDERS & DEVELOPERS 2004 - 05 26.3.2009 SMT. VANDANA MOUNDEKAR. 2007 - 08 26.3.2009 3. THE NOTICES WERE SENT FOR SERVICE THROUGH A NOTICE SERVER BUT THE ASSESSEE REFUSED TO ACCEPT THE NOTICES. HENCE, AN INSPECTOR OF INCOME TAX WAS ALSO SENT ALONG WITH THE NOTI CE S E R VE R T O GE T TH E NOTICE S SE R VE D O N THE A SSESSEE. THE INSPECTOR OF INCOME TAX SERVED T H E NOTI CES B Y AFF I XTURE . THE NOTICES SERVED AND A COPY OF THE IN S PE C TOR S REPORT IS M A D E P ART O F TH E ORDER A S ANNEXURE 1 & 2 RESP . 4 THE CASE WAS A SSIGNED U I S 127 O F T H E IN C OM E T AX A CT, 1961, TO THE 0 1 0 THE ITO W A RD 4(1), NAGPUR IN T HE MONTH O F JUL Y, 2 00 9. THEN , ON 18.7 . 2009, A LETTER WAS SENT TO THE A S S ESS EE CONFIRM W H E TH ER T H E ASSESSEE HAS FILED IN RESPONSE TO NOTICE U/S 14 8 A ND I F NOT TO S HO W CA U SE AS TO WHY PROSECUTION PROCEEDIN GS U/S 276 CC SHOULD NOT BE INITI A T E D F O R WI LL FU L FAILURE TO FILE THE RETURN OF INCOME . THE A SSESSEE VIDE THI S O FF I CE DATED 21 . 7.2009 SUBMITTED THAT ASSESSE HAS NOT R ECEIVED TH E NOTI CES IS S UED U / S 148 OF THE INCOME TAX ACT, 1961 . THEN ON 22.7.200 9, TH E ASSESSEE WAS INFORMED THAT TH E NOTICES U I S 148 OF TH E INCOME T AX AC T WERE DULY SERVED IN YOUR CASES F OR THE BELOW MENTI ONED A S SESSMENT Y EAR S O N 26.03.09, B Y WAY OF AFFIXTURE, IN THE PRESENC E OF TW O W I T NESSES. T H I S O FF I CE HAS A L L THE . . . NECESSARY EVIDENCE TO PROVE THAT T H E NO T I C ES U / S 1 4 8 H A S B EEN PROPERLY SERVED : THE ASSESSEE VIDE HIS REPL Y D ATE D 29 . 7.2009 STILL MAINTAINED THAT 6 ITA NO S . 274 &275 /NAG/2015. THE NOTICES H A VE NOT BEEN RECEI VE D B Y TH E A SSESSE E. T HE N ON 5.8.2009, A NOTICE U/S 142(1) WAS AGAIN SENT TO THE ASSESSE E M E NTIONIN G AL L THE DETAILS T HAT : A SURV E Y ACTION U / S 1 3 3A W A S CONDU C T E D I N YOU R ? CASE ON 24 . 11 . 2008 . DURING THE COURS E OF SU RV EY PROCE E DIN GS/ SOME DOCUMENTS PERTAINING TO Y OU WERE FOUN D A N D I M P OUND E D . A COPY OF ALL SUCH DOCUMENTS HAS ALREADY BEEN GI V EN TO Y OU. CONSIDERIN G YOUR REP L Y DATED 29 . 7 . 2009 / YOUR RETURNS TILED U /S 1 3 9 A N D THE D O CUMEN TS FO UND AND SEIZED DURING THE COU R SE OF SURVE Y A R E C ON SIDERED A S T H E M ATE R IAL A V A I L ABL E ON RECORD A ND IT IS PROPOSED TH A T AS S ESS M E N T W OULD B E COMP LET ED B Y AFFORDING YOU OF AN OPPORTUNITY OF BEING H EA R D TO ST A TE Y OUR CA S E A ND TO EXP L AIN THE DOCUM E NTS FOUND AND IMPOUNDED D U RING THE C OUR SE OF SURVEY U / S 133A OF THE IT . ACT , BY WAY O F ISSUE OF THI S N OTICE U/S 1 42 (1) . ) . I N THE SAME NOTICE CERTAIN BASIC DOCUMENTS WERE AL S O CA LLED F OR , WHICH ARE AS UNDER : (I) A COPY OF RETURN OF INCOM E FILED U / S 1 3 9 F O R TH E A. YS . 2 00 3 - 04 TO 2007 - 08, A LON G WI T H A LL THE S UPPO RT I NG DO C UM E N TS . (I I) A NOTE ON BUSIN E SS A C TIV IT Y. (III) BOOKS O F A CCOUNTS F O R T H E A . Y S . 2 00 3 - 0 4 TO 2 00 7 - 08 . A COPY OF B A NK A / C ST A TEMENT F OR T H E A. V S . 2 00 3 - 04 T O 2 00 7 - 08 . 5 HOWEVER INSTEAD OF FILING THES E B A SIC DOCUM E N TS, TH E ASSESSEE AGAI N OBJECTED TO TH E SERVICE OF NOTI CE S . ON 17.8 . 2009 , T H E COUNSE L OF T H E ASSESSEE APPEARED AND FILED LETTER O F A UTHORITY> THE C OUN SE L WAS TO L D THAT THE DEP A RTMENT HAS A LL THE NECE S S A R Y E VIDENCE TO PRO VE T H AT T HE N O TICES U / S 148 HAVE BEEN PROPERLY SERVED. TH E IN S P E CTORS RE POR T . DO C L ARIFY THAT THE A SSES S E E RE F USE D TO A C C EPT TH E NOTI CE S A ND THE NOTIC ES WE RE ALSO TEARED OFF WH E N A F FIXED. IN FACT, THE ITO W A R D 4 (2) , NA G PUR , IN H IS REMARKS HA S A LSO NOTED TH A T A FT ER T HE N O TICES WE R E SE R VED BY AFF I X TU RE, THE A S S ESSE E A S WE LL AS HI S CO U NS E L W A S VE R Y W E LL I N FORMED THAT THE NOTI CES U / S 1 4 8 WERE SER V E D 7 ITA NO S . 274 &275 /NAG/2015. BY A F FIXTU R E AND T O ACCE P T TH E SA ME . ANNEXURE 1 & , 2 DO ES SET TL E THE CO NT ENTION O F T HE ASS E S S E E THAT N O TICES WERE NOT SERVED. EVEN T H E C OUN SEL OF T H E AS S E S S E E W A S SHOWN INSPECTO RS REP O RT A ND A L SO A N OTIC E U /S 148 TO J U S TIF Y TH A T T H E N O TICE S HAV E BE E N PR O P E RL Y SE RV E D . IN FACT, T H E CONDU CT O F THE ASSESS E E DO INDI CATE TH E INTENTIONS O F T HE ASSESSEE NOT TO C OO PERA T E WITH THE D E P ART M ENT AN D TO C REATE UN NECESSARY L IT I GA T I O N WITHOUT A NY B ASE ' O R TR U TH , CO N SIDERI N G THE F A C T THAT EVEN AFTER B E IN G INFORMED B Y T H E A. O. A B OUT THE SE R VICE OF N OT I CES B Y AFF I X T UR E . . , 6. BUT T I LL THE D AT E ' O F TH E ORD E R THE ASSES S E E H A S N O T S U BMITT E D AN Y OF T H E A BOV E CA L LE D F OR D OCUM ENTS , E XCE P T FO R REI T E R A TI NG T H E FACT THAT N OTI CES U/S 14 8 H AVE NO T BEEN SE RV E D AND TH E A . O . CA NN OT I SS U E NOTI CES 142 (1) C ALL I NG F O R DOC U ME N T S P E RT AIN I N G TO 2. P E R I OD M OR E THAN THREE YE AR S PR I OR T O T HE PREVIOUS YEAR. A 7. AN ADJOURNMENT WAS S OUGHT FOR ON 1 7. 8 , 2009 AND T H E DA T E WA S FIXED FOR 20 ' .8.2 00 9 . AGA I N ON 20 . 8 ' - 2009, ADJ O URNM E NT WAS R E QU E ST E D AN D T HE CA SE WAS ADJOU R NED F O R 27.8 . 2009 . A,9; AIN ON 27 . 8 . : 2 0 09 . ADJOURNME N T WAS SO U GHT FOR A N D T H E CASE WAS A D J OURN E D TO 2 .9 1 . 2 0 0 J . N O NE ATTE N DED ON 2 . 9.2 00 9 AND NO S UBM I S S IO N ' P A S F URNISHED . AGA I N A N O TI CE U/S 142(1) ) AND NO T IC E U/S 2 7 4 R . W . S. 2 71 ( 1 ) ( B ) W A S ISSUED O N 20.10 .2009 , FIXIN G T H E C A SE FO R H E A R I N G ON 30, 1 0. 2 00 9 AND A L S O A S UM M ON S U / S 131 WAS IS S U ED 8 ITA NO S . 274 &275 /NAG/2015. ON 27. 10.200 9 T O PR ODU CE A LL T HE DO C UMEN TS C A L LE D F O R V ID E NOTICES ISSUED U/S 142(1). AS EXPECTED, NO DO C UM E NTS , AS CA LL ED F OR . V ID E N OT ICES ISSUED U/S 142(1) WERE FILED . ON 3.1 1 . 2009 , T H E A SSESSEE AT T ENDED WITHOUT A N Y O F THE DOCUMENTS CALLED FOR BY THE DEPARTMENT . STILL, A STAT E M E NT U / S 1 3 1 WAS RECORDED AND THE ASSESSEE WAS SP E CIFIC A LLY ASKED TO P R ODUC E A LL TH E DOCUMENTS LATEST BY 6.11.2009. TH E ASS E SS E E ASS UR E D T O EXP L A IN A LL TH E IMPOUNDED DOCUMENTS ON 6 . 11 . 2 00 9 BU T N E ITHER T H E A S S ESSE E N OR TH E COUNSEL F O R THE ASSESSEE ATTENDED NOR A NY EXPLANATION / DOCUM E NT S W E R E FILED, EXC E PT FOR ADJOURNMENT LETTER . 8 FROM THE ABOVE NARRATED F A CT S, I T C A N BE INF E RR E D TH A T TH E ASSE SSE E H AS SCANT REGARD FOR THE I NCOME TAX PROCEEDIN G S AND HA S NO EX PL A N ATION T O F I L E BEFORE T H E DEPARTMENT I N RESPECT OF THE QUERRIES R A ISED / E XPL A N A TION S OU G HT ON IMPOUNDED DOCUMENTS BY THE D E P A RTMENT , HENC E. I T WAS PR O POSED TO THE ASSESSEE VIDE THIS OFFICE NOTIC E DATED 6.11 . 2009 TO C OM P L ETE TH E A SSESSMENT U/S 144 OF THE I . T . AC T . . FOR PASSING ORD E R U / S 1 4 4, IT WAS I NFORMED THAT THE RETU R N OF INCOM E FILED U / S 139 A ND TH E BO OKS A ND DOCUMENTS IMPOUNDED DURING TH E C OUR S E O F SURVE Y AR E B EI N G CONS I DER ED AS MATERIAL AVAILABLE ON RECORD. HE WAS F U R THER INFORMED T H AT T H I S B E I N G TH E L A ST OPPORTUNIT Y OFFERED TO YOU AND THE AD DITION ON TH E P OINT S MENTION ED IN THE NOTICE WAS PROPOSED . IT WAS MENTIONED THAT IF THE A SS E SSEE WA N TS TO STATE A NYTHING, HE SHOULD GIVE IT IN WRITIN G WITH DOCUM E NT AR Y EV ID EN CE B Y 16.11 . 2009 . ON 16 . 11 . 2009, T H E A SS E S S EE SUBMITTED A L ETTE R T H A T H E H AS MADE AN APPLICATION UNDER RTI F OR S UPPL Y OF INSPEC T ORS R E POR T A N D A C OP Y OF NO T ICE U/S 1 48 . THE ASSESSEE V I DE T HI S OF F IC E L ET T E R 1 6 . 1 1 . 2 0 0 9, WAS C A TE G ORIC A LLY M A DE AWARE THAT TH E P R O CE EDIN G S UNDER T H E IN C OM E T AX A CT AND RTI A R E SEPAR A TE AND I . T. PROC EEDINGS C A NNOT B E S T AL L ED . H E W AS A L SO MADE AW A R E THAT THE ASSESSEE CAN VER Y ' WE LL COME A ND P E RU SE T H E RECORD S O F T HE DEPARTMENT IN RESPECT OF S ERVI CE O F NOTIC E S AND W AS A L S O I N FOR M E D T H AT T H E D EPARTMENT IS NOT WI L L I NG TO C OMPL E TE TH E PROC E EDIN GS WITHOU T G I V IN G Y O U AN OPPORTUNITY OF BEIN G HEA R D. H E WAS A LSO IN F O RMED T H A T THE REAS ON S F O R REOPEN I NG CANNOT BE GIVEN TO Y OU AS Y OU H A V E NO T F IL ED A N Y RETURN OF IN RESPONSE TO NOTIC E U/ S 148 AND T HE D E P AR TMENT I S BOU N D BY THE DE CIS IO N OF THE APEX COURT REPORTED IN 2 5 9 ITR 19. TH E F IN A L OPPO RTU NI T Y WAS GRANTED TO THE ASSESSEE F OR 2 0 . 11 . 2009. NON E A TT E NDED ON 2 0 . 11 . 2 00 9 BUT T H E CO U N SE L O F THE ASSESSEE A P PEARED ON 2 3 . 11.2009 A ND AGA IN RE I TERAT E D T H A T NO T IC E S H AVE NO T B E E N SERVED . 10. UPON ASSESSEES APPEAL LEARNED CIT(APPEALS) AFFIRMED THE AOS ORDER IN THIS REGARD BY MAKING FOLLOWING OBSERVATIONS : 5.1 THE A.R. OF THE APPELLANT HAS FILED A WRITTEN SUBMISSION WHEREIN 9 ITA NO S . 274 &275 /NAG/2015. THE AR HAS MAINLY CHALLENGED THE VALIDITY OF THE SERVICE OF NOTICE U/S 148 THROUGH AFFIXTURE, HENCE CONTENDED THAT THE NOTICE SERVED U/S 148 IS NOT A VALID SERVICE. THE AR OF THE APPELLANT CO NTENDED THAT SINCE THERE IS NO VALID SERVICE OF NOTICE, THEREFORE, THERE IS NO VALID ASSUMPTION OF JURISDICTION OF PASSING THE ORDER U/S 144 OF THE ACT. THEREFORE, THE APPELLANT HAS CHALLENGED THE CONSEQUENTIAL ORDER PASSED U/S 144 BY WAY OF MAKING ADDITIO NS AS BAD IN LAW. THE ASSESSEE HAS PLACED RELIANCE ON THE JUDGEMENT OF HONBLE APEX COURT IN THE CASE OF CIT VS. TAYAB ALI MULLA JIVAJI KAPASI REPORTED IN 66 ITR 147 (SC). THE A.R. OF THE APPELLANT HAS ALSO REFERRED TO THE PROVISIONS OF SEC. 282 OF THE IT ACT, 1961. THE CONTENTION OF THE AR IS THAT NOTICE U/S 148 HAS NOT BEEN SERVED BY POST. FURTHER, THE AR STATES PROVISION FOR SERVICE OF SUMMON ISSUED BY COURT UNDER THE CODE OF CIVIL PROCEDURE ARE PROVIDED IN ORDER V OF CIVIL PROCEDURE CODE. THE AFORESAI D PROVISION PROVIDES THE PROCEDURE REQUIRED TO BE FOLLOWED FOR VALID SERVICE OF SUMMONS UNDER VARIOUS RULES CONTAINED IN ORDER V. ON THE BASIS OF FACTS AND EVIDENCE ON RECORD, THE PROCEDURE PRESCRIBED UNDER ORDER V OF CIVIL PROCEDURE FOR SERVICE OF NOTICE BY AFFIXTURE HAS NOT BEEN COMPLIED WITH IN THE CASE OF THE ASSESSEE. IN VIEW OF THE ABOVE, THERE IS NO VALID SERVICE OF NOTICE ISSUED U/S 148 OF THE I.T. ACT, 1961. 5.2 THE APPELLANT HAS ALSO PLACED RELIANCE ON THE DECISION OF ITAT, AMRITSAR BENCH IN THE CASE OF DCIT VS. K.G. SINGHANIA IN ITA NO. 281/282/ASR/2008 REPORTED IN 126 TTJ 373 AND DECISION OF ITAT, A GRA BENCH REPORTED IN 126 TTJ (AGR) 346.THUS, BASED ON THEE JUDGEMENTS THE ASSESSEE HAS SUBMITTED THAT THE JURISDICTION ASSUMED BY THE AO U/S 144 I S BAD IN LAW AS THERE WAS NO VALID SERVICE OF NOTICE U/S 148 OF THE I.T. ACT, 1961. 6. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE AR AND THE ORDER OF THE AO. 6.1 A SURVEY ACTION U/S 133A OF THE I.T. ACT, 1961 WAS CONDUCTED IN THE MOUNDEKAR GROUP OF CASES ON 24.11.2008. DURING THE COURSE OF SURVEY ACTION, DOCUMENTS PERTAINING TO THE BUSINESS OF THE ASSESSEE WERE FOUND, WHICH WERE IMPOUNDED. THE COPIES OF THE DOCUMENTS IMPOUNDED WERE PROVIDED TO THE APPELLANT BY THE AO. THE ASSESSMENT WAS RE - OPENED BY ISSUE OF NOTICE U/S 148 WITHIN THE MEANING OF SECTION 147 OF THE ACT. NOTICE U/S 148 WAS ISSUED AND SERVED ON THE APPELLANT ON 26.03.2009. THE NOTICES WERE FIRST TIME SENT SIMULTANEOUSLY FOR AYS 2003 - 04, 2004 - 05, 2005 - 06, 2006 - 07 & 2007 - 08 THROUGH THE NOTICE SERVER. THE AO IN PARA 3 OF THE ASSESSMENT ORDER HAS RECORDED A FINDING THAT SINCE THE ASSESSEE DENIED TO ACCEPT THE NOTICE FROM THE NOTICE SERVER, AN INSPECTOR OF INCOME TAX WAS DEPUTED TO EFFECT THE SERVICE ON THE ASSESSEE BY WAY OF AFFIXTURE. THE PROOF OF SERVICE OF NOTICE AND THE COPY OF INSPECTORS 10 ITA NO S . 274 &275 /NAG/2015. REPORT ARE FORMING THE PART OF THE ASSESSMENT ORDER AS ANNEXURE 1 & 2, RESPECTIVELY. SUBSEQUENTLY, A NOTICE U/S 142(1) DATED 18.07.2009 WAS ISSUED CALLING FOR EXPLANATION OF THE ASSESSEE ON THE IMPOUN DED DOCUMENTS. NOTICE WAS SENT BY RPAD TO THE ASSESSEE BUT THE ASSESSEE CHOOSE NOT TO REPLY TO THE NOTICE AND OBJECTED TO THE SERVICE OF NOTICE U/S 148 MADE BY AFFIXTURE. SUBSEQUENTLY, THERE WAS A CHANGE IN THE JURISDICTION OF THE CASE TO THE ITO WARD 4(1) , NAGPUR IN THE MONTH OF JULY, 2009. ON 05.08.2009 NOTICE U/S 142 WAS AGAIN ISSUED TO THE ASSESSEE CALLING FOR THE DETAILS ASKED FOR VIDE NOTICE DATED 26.03.2009 WHICH REMAINED UN - COMPLIED. ONCE AGAIN INSTEAD OF FILING THE RELEVANT DETAILS, THE ASSESSEE OB JECTED TO THE SERVICE OF NOTICE BY AFFIXTURE. THE RELEVANT FINDING OF THE AO AS RECORDED IN PARA 5 OF THE ASSESSMENT ORDER IS REPRODUCED BELOW : A SURV E Y ACTION U / S 1 3 3A W A S CONDU C T E D I N YOUR ? CASE ON 24 . 11 . 2008 . DURING THE COURS E OF SU RV EY PROCE E DIN GS/ SOME DOCUMENTS PERTAINING TO Y OU WERE FOUN D A N D I M P OUND E D . A COPY OF ALL SUCH DOCUMENTS HAS ALREADY BEEN GI V EN TO Y OU. CONSIDERIN G YOUR REP L Y DATED 29 . 7 . 2009 / YOUR RETURNS TILED U /S 1 3 9 A N D THE D O CUMEN TS FO UND AND SEIZED DURING THE COU R SE OF SURVE Y A R E C ON SIDERED A S T H E M ATE R IAL A VAI L ABLE ON RECORD A ND IT IS PROPOSED TH A T AS S ESS M E N T W OULD B E COMP LET ED B Y AFFORDING YOU OF AN OPPORTUNITY OF BEING H EA R D TO ST A TE Y OUR CA S E A ND TO EXP L AIN THE DOCUM E NTS FOUND AND IMPOUNDED D U RING THE C OUR SE OF SURVEY U / S133A OF THE IT . ACT , BY WAY OF ISSUE OF THI S N OTICE U/S 1 42 (1) . ) . 6. 1 FINALLY, THE AO VIDE LETTER DATED 17.08.2009 INFORMED THE ASSESSEE THAT THE ASSESSMENT WOULD BE COMPLETED ON THE BASIS OF THE RETURN OF INCOME AND OTHER MATERIAL IMPOUNDED DURING THE SURVEY ACTION FOR WANT OF ANY COMPLIANCE ON THE PART OF THE ASSESSEE, HOWEVER, THE ASSESSEE DID NOT FILE ANY EXPLANATION ON THE IMPOUNDED MATERIAL AND REITERATED THAT THE SERVICE OF NOTICE U/S 148 BY AFFIXTURE IS NOT VALID. THEREAFTER, ADJOURN MENT WAS SOUGHT BY THE APPELLANT ON 17.08.2009 AND SUBSEQUENTLY WHICH WERE ALLOWED BY THE AO. THE DETAILS OF ADJOURNMENT SOUGHT BY THE ASSESSEE, WHICH WERE ALLOWED BY THE AO, ARE ELABORATELY DISCUSSED IN PARA 7 OF THE ASSESSMENT ORDER AND THE RELEVANT FIN DING IN THIS REGARD IS AS BELOW : 11 ITA NO S . 274 &275 /NAG/2015. 7. AN ADJOURNMENT WAS S011G1 U FOR ON 1 7. 8 , 2009 AND T H E DA T E WA S FIXED FOR 20 ' .8.2 00 9 . AGA I N ON 20 . 8 ' - 2009, ADJ O URNM E NT WAS R E QU E ST E D AN D T HE CA SE WAS ADJOU R NED F O R 27.8 . 2009 . AGA IN ON 27 . 8 . : 2 0 09 . ADJOURNME N T WAS SO U GHT FOR A N D T H E CASE WAS A D J OURN E D TO 2 .9 1 . 2 0 0 J . N O NE ATTE N DED ON 2 . 9.2 00 9 AND NO S UBM I S S IO N ' P A S F URNISHED . AGA I N A N O TI CE U/S 142(1) ) AND NO T IC E U/S 2 7 4 R. W . S. 2 71 ( 1 ) ( B ) W A S ISSUED O N 20.10.2009 , FIXIN G T H E C A SE FO R H E A R I N G ON 30, 1 0. 2 00 9 AND A L S O A S UM M ON S U / S 131 WAS IS S U ED ON 27. 10.200 9 T O PR ODU CE A LL T HE DO C UMEN TS C A L LE D F O R V ID E NOTICES ISSUED U/S 142(1). AS EXPECTED, NO DO C UM E NTS , AS CA LL ED F OR . V ID E N OT ICES ISSUED U/S 142(1) WERE FILED . ON 3.1 1 . 2009 , T H E A SSESSEE AT T ENDED WITHOUT A N Y O F THE DOCUMENTS CALLED FOR BY THE DEPARTMENT . STILL, A STAT E M E NT U / S 1 3 1 WAS RECORDED AND THE ASSESSEE WAS SP E CIFIC A LLY ASKED TO P R ODUC E A LL TH E DOCUMENTS LATEST BY 6.11.2009. TH E ASS E SS E E ASS UR E D T O EXP L A IN A LL TH E IMPOUNDED DOCUMENTS ON 6 . 11 . 2 00 9 BU T N E ITHER T H E A S S ESSE E N OR TH E COUNSEL F O R THE ASSESSEE ATTENDED NOR A NY EXPLANATION / DOCUM E NT S W E R E FILED, EXC E PT FOR ADJOURNMENT LETTER . 6.2 SINCE THE ASSESSEE FAILED TO COMPLY WITH THE STATUTORY NOTICES ISSUED BY THE AO DURING THE ASSESSMENT PROCEEDINGS AND ALSO FAILED TO FILE THE EXPLANATION ON THE IMPOUNDED MATERIAL FOUND DURING THE SURVEY AC T ION, THE AO, THEREFORE PROCEEDED TO COMPLETE THE BEST JUDGEMENT ASSESSMENT U/S 144 OF THE I.T. ACT, 1961. THE AO, AFTER HAVING ANALYSED THE MATERIAL AV AILABLE ON RECORD INCLUDING THE IMPOUNDED MATERIAL, MADE THE ADDITIONS OF RS.6,80,690/ - UNDER THE HEAD INCOME FROM BUSINESS AND RS.14,61,900/ - UNDER THE HEAD INCOME FROM OTHER SOURCES, RS.28,000/ - UNDER THE HEAD INCOME FROM HOUSE PROPERTY, RS.25,000/ - UNDER THE HEAD INCOME FROM DOCUMENTATION WORK AND RS.1,30,000/ - UNDER THE HEAD INCOME FROM OTHER SOURCES AS IT IS UNEXPLAINED INVESTMENT. THE AO HAS DISCUSSED THE ISSUES ON THE BASIS OF WHICH THE ADDITIONS WERE MADE IN PARA NOS. 10 TO 18 OF THE ASSESS MENT ORDER. 7. IT IS QUITE MANIFEST FROM THE ABOVE THAT THERE WAS A PROPER SERVICE OF NOTICE U/S 148 OF THE ACT. THE APPELLANT REFUSED TO ACCEPT THE NOTICE FROM THE NOTICE SERVER WHO VISITED THE BUSINESS PREMISES OF THE ASSESSEE, THEREFORE, THE AO DEPUTED AN INSPECTOR TO EFFECT THE SERVICE OF NOTICE. SINCE, THE STAFF OF THE APPELLANT PRESENT AT THE BUSINESS PREMISES ALSO REFUSED TO ACCEPT THE STATUTORY NOTICE U/S 148, THEREFORE THE AUTHORITY CONCERNED WAS NOT LEFT WITH ANY ALTERNATIVE TO EFFECT SERVICE OTHER THAN BY WAY O F AFFIXTURE. THE REPORTS OF THE INSPECTOR AND THE NOTICE SERVER ARE DULY FOUND PLACED ON RECORD, WHICH CLEARLY REVEAL THAT THE APPELLANT AND THE STAFF PRESENT AT THE BUSINESS PREMISES HAD SHOWN THEIR TOTAL RELUCTANCE TO ACCEPT THE STATUTORY 12 ITA NO S . 274 &275 /NAG/2015. NOTICE FROM THE AUTHORITIES . THE AR OF THE APPELLANT HAS NOT BROUGHT OUT ANY EVIDENCE CONTRARY TO THE FACTS AVAILABLE ON RECORD. THE FACTS AVAILABLE ON RECORDS INCLUDING THE RELEVANT REPORTS CLEARLY DEMONSTRATES THE NON - CO - OPERATIVE ATTITUDE OF THE APPELLANT. THE FACT TH AT THE AO FOR WANT OF COMPLIANCE FROM THE APPELLANT WAS CONSTRUCTED TO PASS THE ASSESSMENT ORDER EX - PARTE U/S 144 OF THE ACT, ALSO SHOWS THE NON - CO - OPERATIVE APPROACH OF THE APPELLANT TOWARDS OFFICIAL PROCEEDINGS. IT IS PERUSED FROM THE RECORD THAT AMPLE OPPORTUNITIES WERE CONFERRED UPON THE APPELLANT TO EXPLAIN THE CONTENTS OF THE IMPOUNDED MATERIAL FOUND DURING THE SURVEY ACTION, BUT THE APPELLANT CHOSE NOT TO AVAIL SUCH OPPORTUNITIES. THE RATIO OF THE DECISIONS RELIED UPON BY THE APPELLANT IS NOT APPLIC ABLE TO THE FACTS OF THE CASE OF THE APPELLANT. THE FACTS OF THE CASE MAKE IT ABUNDANTLY CLEAR THAT THERE W A S NO PROCEDURAL LAPSE IN SERVICE OF NOTICE U/S 148 OF THE ACT . THE SERVICE THROUGH NOTICE SERVER IS THE MOST PREFERRED MODE OF SERVICE PREVALENT IN THE DEPARTMENT FOLLOWED BY THE SERVICE BY POST AND AFFIXTURE. IN THE CASE OF PRESENT APPELLANT, THE INITIAL CONDUCT OF THE APPELLANT ITSELF WAS NON CO - OPERATIVE; THEREFORE, THE AO HAD RIGHTLY ADHERED TO THE MODE OF SERVICE BY AFFIXTURE. THE ULTIMATE MOTTO OF THE AO WAS TO SERVE UPON THE APPELLANT A VALID NOTICE, WHICH WAS INITIATED THROUGH THE NOTICE SERVER AND IT IS BUT FOR THE NON - OPERATION OF THE ASSESSEE AND THE STAFF, THE ALTERNATE METHODS OF SERVICE OF NOTICE WERE ADHERED TO. IT IS NOT A CASE WHERE S ERVICE THROUGH NOTICE SERVER WOULD HAVE CAUSED ANY GENUINE HARDSHIP TO THE ASSESSEE. IT IS, THEREFORE, IMMATERIAL FROM THE POINT OF VIEW OF ASSESSEE WHETHER NOTICE IS SERVED ON HIM THROUGH NOTICE SERVER OR BY POST. WHAT IS MATERIAL IS THAT A VALID NOTICE S HOULD B SERVED UPON THE ASSESSEE. SINCE THERE WAS A SURVEY ACTION CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE, WHICH HAS RESULTED INTO IMPOUNDING OF CERTAIN INCRIMINATION PAPERS AND DOCUMENTS, ONUS THEREFORE, WAS ON THE APPELLANT TO EXPLAIN THE CON TENTS OF SUCH IMPOUNDED MATERIAL, WHICH HE HAS FAILED TO DISCHARGE BY NOT ACCEPTING A VALID NOTICE ISSUED AND SERVED ON HIM BY THE AO. THE APPELLANT, THUS, HAS REFRAINED FROM AVAILING AN OPPORTUNITY CONFERRED UPON HIM IN THE INTEREST OF PRINCIPLES OF NATUR AL JUSTICE DUE TO WHICH AO WAS CONSTRAINED TO PASS EXPARTE ORDER U/S 144 OF THE ACT. I, THEREFORE, HOLD THAT THE SERVICE OF NOTICE U/S 148 WAS A VALID SERVICE THROUGH AFFIXTURE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THEREFORE, THE AO HAS ASSUMED A VALID JURISDICTION TO PASS ORDER U/S 144 R.W.S. 147 OF THE ACT. 11. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 12. THE CONTENTION S OF THE LEARNED COUNSEL OF THE ASSESSEE ARE SUMMARIZED AS UNDER : 13 ITA NO S . 274 &275 /NAG/2015. A) AO HAS OBSERVED THAT NOTICES U/S 148 OF I.T. ACT, 1961 ARE SERVED BY AFFIXTURE ON 26/03/2009. IN THE ASSESSMENT PROCEEDING ASSESSEE HAS SUBMITTED BEFORE A.O. THAT NOTICE I/S 148 ARE NOT SERVED. A.O. HAS NOTED THE SUBMISSION OF ASSESSEE AT PARA 5 & 7 OF ASSESSMENT ORDER. A.O. WITHOUT D ISPOSING THE OBJECTION OF ASSESSEE AS TO SERVICE OF NOTICE U/S 148 AND NOT PROVIDING REASONS RECORDED FOR NOTICE ISSUED U/S 148 PROCEEDED TO FRAME ASSESSMENT U/S 144 OF I.T. ACT, 1961. B) SUBMITTED BEFORE A.O. THAT NOTICE U/S 148 IS NOT SERVED ON 21/07 /2009 A.O. PAGE - 2, PARA - 4 ON 29/07/2009 A.O. PAGE - 2, PARA - 4 ON 17/08/2009 A.O. PAGE - 3, PARA - 5 ON 23/11/2009 A.O. PAGE - 4, PARA - 8. C) BEFORE HONBLE CIT(A) IT WAS SUBMITTED THAT NOTICE IS NOT SERVED ON ASSESSEE AND HE HAS NEVER REFUSED TO RECEIVE SERV ICE OF NOTICE FROM HIS SIDE. CIT(A) ORDER PAGE - 2. D) NOTICE U/S 148 WERE NEVER REFUSED BY ASSESSEE OR HIS AGENT FOR SERVICE. ASSESSMENT YEARS UNDER CONSIDERATION ARE 2003 - 04 TO 2005 - 06. SURVEY U/S 133A WAS MADE ON 24/11/2008. NOTICE U/S 148 ARE ISSUED ON 2 6/ - 03/2009. AFFIXTURE IS MADE ON 26/03/2009. ENOUGH LIMITATION TO SERVE THE NOTICE U/S 148 OF I.T. ACT 1961 WAS AVAILABLE WITH A.O. OF MORE THAN ONE YEARS FOR ASSTT. YEAR 2003 - 04 AND FOR OTHER YEARS MUCH MORE THAN THAT A.O. HAS HURRIEDLY RESORTED TO PROCES S OF AFFIXTURE FOR NO VALID JUSTIFICATION. E) REASONS RECORDED NOT PROVIDED TO ASSESSEE BY LEARNED A.O. AND EVEN BY HONBLE CIT(A). 14 ITA NO S . 274 &275 /NAG/2015. REQUEST MADE BEFORE A.O. ON 25/01/2010 A.O. PAGE - 4, PARA - 8. REQUEST MADE BEFORE HONBLE CIT(A) 19/11/2010 F) RELIANCE ON W/S BEFORE CIT(A) CIT(A) PAGE - 2&3. G) IT IS SETTLED POSITION OF LAW THAT SERVICE OF NOTICE U/S 1 48 ON ASSESSEE IS TO DEMONSTRATE BY REVENUE ON CHALLENGE OF SAME BY ASSESSEE BY ADDUCING LEGAL EVIDENCE. ONUS IS ON REVENUE TO ESTABLISH VALID SERVICE OF NOTICE U/S 148 ON ASSESSEE TO ASSUME JURISDICTION. RELIANCE ON: I) (2000) 242 ITR 0141 (MAD) VENKAT NAIC KEN TRUST & ANR. VS. ITO. H) SUBSEQUENTLY 142(1) NOTICE WERE SENT BY RPAD AS IS EVIDENT FROM OBSERVATION OF A.O. AT PAGE 2. ASSESSEE HAS RESPONDED BEFORE A.O. AND SUBMITTED OBJECTION FOR SERVICE OF NOTICE. ASSESSEE HAD REQUESTED FOR ADJOURNMENT BEFORE A.O. AS IS EVIDENT FROM OBSERVATION AT PARA 8. A.O. HAS ALSO RECORDED STATEMENT OF ASSESSEE IN ASSESSMENT PROCEEDINGS U/S 131 OF I.T. ACT, 1961. ALL 142(1)/143(2) NOTICES AND SUMMONS WERE RECEIVED BY ASSESSEE AND RESPONDED TO IN ASSESSMENT PROCEEDINGS. NOTHING ON RECORD THAT ASSESSEE IS AVOIDING SERVICE OF NOTICE OF DEPARTMENT. I) IN THE CASE OF ASSESSEE SERVICE OF NOTICE U/S 148 OF I.T. ACT, 1961 IS OBSERVED TO BE BY A.O. BY WAY OF AFFIXTURE. THE VALID SERVICE OF NOTICE BY AFFIXTURE CAN BE ONLY BY FOLLOWING PR OVISIONS OF ORDER V OF CIVIL PROCEDURE CODE 1908. J) IN THE CASE OF ASSESSEE IT WAS SUBMITTED THAT THERE IS NO VALID SERVICE OF NOTICE BY AFFIXTURE AND THUS NOTICE U/S 148 CANNOT BE SAID 15 ITA NO S . 274 &275 /NAG/2015. TO HAVE BEEN SERVED ON ASSESSEE. K) PROVISIONS OF SEC. 282 OF I.T. AC T 1961 PROVIDE FOR MANNER OF SERVICE OF NOTICE. UNDISPUTED FACT THAT NOTICE HAS NOT BEEN SERVED IN PERSON ON ASSESSEE NOR IT HAS BEEN SERVED BY POST. L) PROVISIONS OF RULE 17 TO 20 OF ORDER V OF CIVIL PROCEDURE CODE 1908 PROVIDE FOR PROCEDURE OF SERVICE OF NOTICE BY AFFIXTURE. EVIDENCE ON RECORD WOULD SHOW THAT PROVISIONS OF RULES OF ORDER V OF CIVIL PROCEDURE CODE 1908 ARE NOT COMPLIED TO CONDUCT THAT VALID SERVICE OF NOTICE U/S 148 HAS TAKEN PLACE. M) A.O. HAS NOT MADE REASONABLE ATTEMPT S TO SERVICE NOTIC E IN REGULAR MANNER AND WAS NOT JUSTIFIED TO RESORT TO MAKE SUBSTITUTED SERVICE OF NOTICE. EVEN ALLEGED SUBSTITUTED SERVICE OF NOTICE IS NOT IN ACCORDANCE WITH LAW AND IS NO VALID SERVICE OF NOTICE U/S 148 OF I.T. ACT 1961. RELIANCE ON: I) ITAT ORDER IN ITA N O. 289(ASR)/2013 IN THE CASE OF SH. PARSHOTAM SINGH VIDE ORDER DATED 04/08/2016. II) ITAT ORDER IN ITA NO. 1111/PN/2013 IN THE CASE OF ANIL KHATRI VIDE ORDER DATED 31/03/2016. III) ITAT ORDER IN ITA NO. 5221/MUM/2014 IN THE CASE OF SHRI SANJAY BADANI VIDE ORDER DATED 09/09/2014. IV) (2015) 43 ITR (TRIB) 0635 (DELHI) SUMANGLAM SEWA AWAM EDUCATIONAL SAMITI VS. CIT. V) (2010) 328 ITR 0173 (P&H) CIT VS. KISHAN CHAND. VI) (2010) 1 ITR 0001 (AGRA) ARUN LAL VS. ACIT. VII) (2008) 296 ITR 0333 (DELHI) CIT VS. HOTLINE INTERNATIONAL (P) LT D. VIII) (1973) 89 ITR 0136 (ALL.) CIT VS. SATYA NARAIN PODDAR. IX) (1977) 110 ITR 0027 (ALL.) JAGANNATH PRASAD & ORS. VS. CIT & ORS. 16 ITA NO S . 274 &275 /NAG/2015. X) (1971) 82 ITR 0888 (SC) CIT & ORS. VS. RAMENDRA NATH GHOSH. XI) (1973) 88 ITR 0374 (CAL.) RAMESWAR SIRKAR VS. ITO. XII) (2000) 242 ITR 0141 (MAD.) VENKAT NAICKEN TRUST & ANR. VS. ITO. N) INSPECTION OF RECORD BY ASSESSEE REVEALED THAT THERE IS NO REPORT OF NOTICE SERVER TO THE EFFECT THERE WAS ANY REFUSAL TO RECEIVE NOTICE BY ASSESSEE. O) INSPECTORS REPORT IS NOT VERIFIED BY AFFIDAVIT OF SERVIC E NOR A.O. HAS EXAMINED INSPECTOR ON OATH AS REQUIRED UNDER RULE 19 OF ORDER V OF CIVIL PROCEDURE CODE 1908. THE A.O. HAVING NOT FOLLOWED THE PROVISIONS OF RULE 19 THERE IS NO VALID SERVICE OF NOTICE U/S 148 OF I.T. ACT, 1961. P) ASSESSMENT RECORD DOES NOT INDICATE THAT A.O. HAS DECLARED THAT NOTICE U/S 148 IS SERVED IN THE CASE OF ASSESSEE IN TERMS OF RULE 19 OF ORDER V OF CIVIL PROCEDURE CODE 1908. THEN NO VALID SERVICE CAN BE SAID TO HAVE BEEN MADE IN THE CASE OF ASSESSEE. Q) IN THE REPORT OF INSPECTOR NAMES OF TWO WITNESS ARE REFERRED. THE ADDRESS OF SUCH WITNESS INDICATES THAT BOTH THE WITNESSES ARE ALMOST 6 KMS. AWAY FROM THE PREMISES OF ASSESSEE IN OPPOSITE DIRECTION FROM EACH OTHER. REPORT OF INSPECTOR DOES NOT STATES THAT WITNESSES HAVE IDENTIFIED THE PLACE OR WAS KNOWN TO HIM PERSONALLY. ALLEGED SERVICE IS NOT IN ACCORDANCE WITH LAW. R) PROVISIONS OF RULE 19 ARE NOT COMPLIED WITH IN THE FACTS IN THE CASE OF ASSESSEE. NO EVIDENCE WAS SHOWN TO ASSESSEE ON THE BASIS OF WHICH IT CAN BE SAID THAT SERVICE WAS IN ACCORDANCE WITH LAW. 17 ITA NO S . 274 &275 /NAG/2015. S) MERE INFORMATION OF NOTICE ISSUED U/S 148 IS NOT SUFFICIENT TO ASSUME JURISDICTION TO ASSESS U/S 148 OF I.T. ACT 1961. RELIANCE ON: I) (1977) 107 ITR 0409 JOHAR FOREST WORKS VS. CIT. T) OBSERVATION OF CIT(A) THAT NO PRO CEDURAL LAPSE IN SERVICE OF NOTICE U/S 148 IS CONTRARY TO EVIDENCE ON RECORD. RATIO OF DECISION RELIED UPON BEFORE CIT(A) ARE CLEARLY APPLICABLE TO THE FACTS IN THE CASE OF ASSESSEE. U) REASONS RECORDED NOT PROVIDED TO ASSESSEE. NON PROVIDING OF REASONS RE CORDED BEFORE COMPLETION OF ASSESSMENT RESULTS INTO ASSESSMENT FRAMED AS BAD IN LAW AND DESERVES TO BE QUASHED. 13. PER CONTRA LEARNED D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 14. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. I FIND THAT NOTICE U/S 148 ISSUED IN THIS CASE IS DATED 26 - 03 - 2009. IT HAS BEEN CLAIMED THAT THE ASSESSEE HAS REFUSED TO ACCEPT THE NOTICE AND HENCE AFFIXTURE WAS MADE ON 26 - 03 - 2009 ITSEL F. IN THIS REGARD BEFORE PROCEEDING FURTHER I MAY GAINFULLY REFER TO THE RELEVANT LAWS RELATING TO SERVICE OF NOTICE IN THIS REGARD AS UNDER : [SERVICE OF NOTICE GENERALLY, 282.(1) THE SERVICE OF NOTICE OR SUMMON OR REQUISITION OR ORDER OR ANY OTHER COMM UNICATION UNDER THIS ACT (HEREINAFTER IN THIS SECTION REFERRED TO AS COMMUNICATION) MAY BE MADE BY DELIVERING OR TRANSMITTING A COPY THEREOF, TO THE PERSON THEREIN NAMED 18 ITA NO S . 274 &275 /NAG/2015. (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 CIVIL PROCEDURE, 1908 (5 OF 1908) FOR THE PURPOSES OF SERVICE OF SUMMONS; OR (C) IN THE FORM OF ANY ELECTRONIC RECORD AS PROVIDED IN CHAPTER IV OF THE INFORMATION TECHNOLOGY ACT, 2000 (21 OF 2000); OR (D) BY ANY O THER MEANS OF TRANSMISSION OF DOCUMENTS AS PROVIDED BY RULES MADE BY THE BOARD IN THIS BEHALF. (2) THE BOARD MAY MAKE RULES PROVIDING FOR THE ADDRESS (INCLUDING THE ADDRESS FOR ELECTRONIC MAIL OR ELECTRONIC MAIL MESSAGE) TO WHICH THE COMMUNICATION REFERRED TO IN SUB - SECTION (1) MAY BE DELIVERED OR TRANSMITTED TO THE PERSON THEREIN NAMED. EXPLANATION FOR THE PURPOSES OF THIS SECTION, THE EXPRESSIONS ELECTRONIC MAIL AND ELECTRONIC MAIL MESSAGE SHALL HAVE THE MEANINGS AS ASSIGNED TO THEM IN EXPLANATION T O SECTION 66A OF THE INFORMATION TECHNOLOGY ACT, 2000 (21 OF 2000). 15. ISSUE AND SERVICE OF SUMMONS AS PER CODE OF CIVIL PROCEDURE 1. SUMMONS (1) WHEN A SUIT HAS BEEN DULY INSTITUTED A SUMMONS MAY BE ISSUED TO THE DEFENDANT TO APPEAR AND ANSWER THE CLAIM ON A DAY TO BE THEREIN SPECIFIED: PROVIDED THAT NO SUCH SUMMONS SHALL BE ISSUED WHEN .THE DEFENDANT HAS APPEARED AT THE PRESENTATION OF THE P LAINT AND ADMITTED THE PLAINTIFF'S CLAIM : [PROVIDED FURTHER THAT WHERE A SUMMONS HAS BEEN ISSUED , THE COURT MAY DIRECT THE DEFENDANT TO FILE THE WRITTEN STATEMENT OF HIS DEFENCE, IF ANY , ON THE DATE OF HIS APPEARANCE AND CAUSE AN ENTRY TO BE MADE TO THAT EFFECT IN THE SUMMONS.] (2) A DEFENDANT TO WHOM A SUMMONS HAS BEEN ISSUED UNDER SUB - RULE (1) MAY APPEAR - (A) IN PERSON , OR (B) BY A PLEADER DULY INSTRUCTED AND ABLE TO ANSWER ALL MATERI AL QUESTIONS RELATING TO THE 19 ITA NO S . 274 &275 /NAG/2015. SUIT , OR (C) BY A PLEADER ACCOMPANIED BY SOME PERSON ABLE TO ANSWER ALL SUCH QUESTIONS. (3) EVERY SUCH SUMMONS SHALL BE SIGNED BY THE JUDGE OR SUCH OFFICER AS HE APPOINTS , AND SHALL BE SEALED WITH THE SEAL OF THE COURT . 2 . C OPY OR STATEMENT ANNEXED TO SUMMONS EVERY SUMMONS SHALL BE ACCOMPANIED BY A COPY OF THE PLAINT OR , IF SO PERMITTED , BY A CONC I SE STATEMENT . 3 . COURT MAY ORDER DEFENDANT OR PLAINTIFF TO APPEAR I N PERSON (1) WHERE THE COURT SEES REASON TO REQU I RE THE PERSONAL APPEARANCE OF THE DEFENDANT , THE SUMMONS SHALL ORDER HIM TO APPEAR IN PERSON IN COURT ON THE DAY THEREIN SPECIFIED. (2) WHERE THE COURT SEES REASON TO REQUIRE THE PERSONAL APPEARANCE OF THE PLAINTIFF ON THE SAME DAY , IT SHALL MAKE AN ORDER FOR SUCH APPEARANCE. 4. NO PARTY TO BE ORDERED TO APPEAR IN PERSON UNLESS RESIDENT WITHIN CERTAIN LIMITS NO PARTY SHALL BE ORDERED TO APPEAR IN PERSON UNLESS HE RESIDES - (A) WITHIN THE LOCAL LIMITS OF THE COURT'S ORDINARY ORIGINAL JURISDICTION , OR (B) WITH OUT SUCH LIMITS BUT AT PLACE LESS THAN FIFTY OR (WHERE THERE IS RAILWAY OR STEAMER COMMUNICATION OR OTHER ESTABLISHED PUBLIC CONVEYANCE FOR FIVE - SIXTHS OF THE DISTANCE BETWEEN THE PLACE WHERE HE RESIDES AND THE PLACE WHERE THE COURT IS SITUATE) LESS THAN TWO HUNDRED MILES DISTANCE FROM THE COURT - HOUSE. 5. SUMMONS TO BE EITHER TO SETTLE ISSUES OR FOR FINAL DISPOSAL THE COURT SHALL DETERMINE, AT THE TIME OF I SSUING THE SUMMONS, WHETHER IT SHALL BE FOR THE SETTLEMENT OF ISSUES ONLY , OR FOR THE FINAL DISPOSAL OF THE SUIT ; AND THE SUMMONS SHALL CONTAIN A DIRECTION ACCORDINGLY: PROVIDED THAT, IN EVERY SUIT HEARD BY A COURT OF SMALL CAUSES, THE SUMMONS SHAL L BE FO R TH E F I NAL DISPOSAL OF THE SUIT . 6. FIXING DAY FOR APPEARANCE OF DEFENDANT THE DAY FOR THE APPEARANCE OF THE DEFENDANT SHA LL BE FIXED WITH REFERENCE TO THE CURRENT BUSINESS OF THE COURT , THE PLACE OF RESIDENCE OF THE DEFENDANT AND THE TIME NECESSA R Y FOR THE SE RVES OF THE SUMMONS ; AND THE DAY SHA L L BE SO FIXED AS TO ALLOW THE DEFENDANT SUFF I CIENT T I ME TO ENABLE HIM TO APPEAR AND ANSWER ON SUCH DAY. 7 . SUMMONS TO ORDER DEFENDANT TO PRODUCE DOCUMENTS REL I ED ON BY HIM THE SUMMONS TO APPEAL AND ANSWER SHALL ORDER THE DEFENDANT TO PRODUCE A LL DOCUMENTS IN HIS POSSESSION OR POWER UPON WHICH HE INTENDS TO RELY IN SUPPORT OF HIS CASE . 8 . ON I SSUE OF SUMMONS FOR FINAL DISPOSAL , DEFENDANT TO BE DIRECTED TO PRODUCE H I S W I TNESSES WHERE THE SUMMONS IS FOR THE FINAL DISPOSAL OF THE SUIT , IT SHALL ALSO DIRECT THE DEFENDANT TO P R ODUCE , O N THE DAY FIXED FOR H I S APPEARANCE , ALL WITNESSES UPON WHOSE EV I DENCE HE INTENDS TO RELAY IN SUPPOR T 20 ITA NO S . 274 &275 /NAG/2015. OF HIS CASE. SERVICE OF SUMMONS 9 . DELIVERY OR TRANSMISS I ON OF SUMMONS FOR SERV I CE ( 1 ) WHERE THE DEFENDANT RES I DES WITH I N THE J UR I SDICTION OF THE COURT I N WH I CH THE SU I T I S IN S TITUT ED , OR HAS AN AGENT RESIDENT WITHIN THAT JUR I SDICTION WHO I S EMPOWERED TO ACCEP T T HE SERV I CE O F T HE SUMMONS , THE SUMMONS SHAL L, UNLESS THE COURT OTHERW I SE DIRECTS , BE DEL I VERED OR SENT T O T HE PROPER OFFICER T O BE SERVED BY HIM OR ONE OF HIS SUBORDINATES. ( 2 ) THE PROPE R OFFICER MAY BE AN OFFICER OF A COURT OTHER T HAN THAT IN WH I C H T HE S UI T I S IN S TITUT ED , AND , WHERE HE I S SUCH AN OFFICER , THE SUMMONS MAY BE SENT TO HIM BY POST OR IN SUC H O T HE R M A N NER AS T HE COURT MAY D I RECT . 10 . MODE OF SERV I CE SERV I CE OF THE SUMMONS SHALL BE MADE BY DELIVER I NG OR T ENDER I NG A COPY THEREOF S I GNED BY THE J U DGE OR SUCH OFFICER AS HE APPOINTS IN THIS BEHALF , AND SEALED WITH THE SEAL OF THE COURT . 11 . SERVES ON SEVERAL DEFENDANTS SAVE AS OTHERW I SE PRESCRIBED , WHERE THERE ARE MORE DEFENDANTS THAN ONE , SER V ES O F T HE SU MM ONS SHA LL BE MADE ON EACH DEFENDANT . 12 . SERV I CE TO BE ON DEFENDANT ON PERSON WHEN PRACTICABLE , OR ON HIS AGENT WHEREVE R I T I S PRACT I CABLE SERVES SHALL BE MADE ON THE DEFENDANT I N PERSON , UNLESS HE HAS AN AGEN T EMPOWERED TO ACCEPT SERVICE , I N WH I CH CASE SERVES ON SUCH AGENT SHALL BE SUFFIC I E NT . 13 . SE R V I CE ON AGE N T BY WHOM DEFENDAN T CARR I ES ON BUS I NESS ( 1 ) IN A SUIT RE L A TI NG TO ANY BUS I NESS OR WORK AGA I NS T A PE R SON W H O DOES NO T R ES I DE W ITHIN THE L O C A L LIMITS OF THE JURISDICT I ON OF THE COURT FROM WH I CH T H E SUMMONS IS I SSUED , SERV I CE ON AN Y M ANAGER O R AGENT , WHO , AT THE T IME OF SERVES , PERSONALLY CAR RI ES ON SUCH BUSINESS O R WO R K F OR SUC H PERSON W IT H IN SUCH LIMITS , SHALL BE DEEMED GOOD SERVICE, ( 2) FOR THE PU R POSE OF THIS RULE THE MASTER OF A SHIP SHALL BE DEEMED TO BE T H E AGEN T OF T HE OWNER OR CHARTERED . 14. SERV I CE ON AGENT IN CHARGE IN SUITS FOR IMMOVABLE PROPERTY WHERE IN A SUIT TO OBTAIN RELIEF R ESPECTING , OR COMPENSATION FOR WRONG TO , IMMOVABLE PROPERTY , SERV I CE CANNOT BE MADE ON THE DEFENDANT I N PERSON , AND THE DEFENDANT HAS NO AGENT EMPOWERED T O ACCE NT THE SERV I CE , IT MAY BE MADE ON ANY AGENT OF THE DEFENDANT I N CHA R GE OF THE PROPERTY . 23 [15. WHERE SERVICE MAY BE ON AN ADULT MEMBER OF DEFENDANT'S FAM I LY WHERE IN ANY SUIT THE DEFENDANT IS ABSENT PROM HIS RESIDENCE AT THE TIME WHEN THE SERVICE OF SUMMONS IS SOUGHT TO BE EFFECTED ON HIS AT HIS RESIDENCE AND T HERE IS NO LIKELIHOOD OF HIS BEING FOUND AT THE RES I DENCE WITHIN A REASONABLE TIME AND HE HAS NO AGENT EMPOWERED TO ACCEPT SERVICE OF THE SUMMONS ON HIS BEHALF SERVICE MAY BE MADE ON ANY ADULT MEMBER OF THE FAMILY , WHETHER MALE OR FEMALE , WHO IS RESIDING WITH HIM. EXPLANATION. - A SERVANT IS NOT A MEMBER OF THE FAMILY WITHIN THE MEANING OF THIS RULE . ] 16. PERSON SERVED TO SIGN ACKNOWLEDGEMENT 21 ITA NO S . 274 &275 /NAG/2015. WHERE THE SERVING OFFICER DELIVERS OR TENDERS A COPY OF THE SUMMONS TO THE DEFENDANT PERSONALLY , OR TO AN AGENT OR OTHER PERSON ON HIS BEHALF, HE SHALL REQUIRE THE S I GNATURE OF THE PERSON TO WHOM THE COPY IS SO DELIVERED OR TENDERED TO AN ACKNOWLEDGEMENT OF SERVICE ENDORSED ON THE ORIGINAL SUMMONS. 17 . PROCEDURE WHEN DEFENDANT REFUSES TO ACCEPT SER VICE , OR CANNOT HE FOUND 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 DUE AND REASONABLE DILIGENCE, CANNOT FIND THE DEFENDANT , 22 [WHO IS ABSENT FROM HIS RESIDENCE AT THE TIME WHEN SERVICE I S SOUGHT TO BE EFFECTED ON HIM AT HIS RESIDENCE AND THERE IS NO LIKELIHOOD OF HIS BEING FOUND AT THE RESIDENCE W I THIN A REASONABLE TIME] AND THERE IS NO AGENT EMPOWERED TO ACCEPT SERVICE OF THE SUMMONS ON HIS BEHA LF , NOR ANY OTHER PERSON ON WHOM SERVICE CAN BE MADE , THE SERVING OFFICER SHALL 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 WORK S FOR GAIN , AND SHALL THEN RETURN THE OR I GINAL 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 PER SON(IF ANY) BY WHOM THE HOUSE WAS IDENTIFIED AND IN WHOSE PRESENCE THE COPY WAS AFFIXE ~ 18 . ENDORSEMENT OF TIME AND MANNER OF SERVICE THE SERVING OFFICER SHALL, IN ALL CASES IN WHICH THE SUMMONS HAS BEEN SERVED UNDER RULE 16 , ENDORSE OR ANNEX , OR CAUSE TO BE ENDORSED OR ANNEXED , ON OR TO THE ORIGINAL SUMMONS , A RETURN STATING THE TIME WHEN AND THE MANNER IN WHICH THE SUMMONS WAS SERVED , AND THE NAME AND ADDRESS OF THE PERSON (IF ANY) IDENTIFYING THE PERSON SERVED AND WITNESSING THE DELIVERY OR TENDER O F THE SUMMONS . 19 . EXAMINATION OF SERVING OFFICER WHERE A SUMMONS IS RETU RN ED UNDER RULE 17 , THE COURT SHALL , IF THE RETU RN UNDER THAT RULE HAS NOT BEEN N 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 COURT, TOUCHING HIS PROCEEDINGS , AND MAY MAKE SUCH FURTHER ENQUIRY IN THE MATTER AS IT THINKS FIT; AND SHALL EITHER DECLARE THAT THE SUMMONS HAS BEEN DULY SERVED OR ORDER SUCH SERVICE AS IT THINKS FIT . 22 [19A. SIMULTANEOUS ISSUE OF SUMMONS FOR SERVICE BY POST IN ADDITION TO PERSONAL SERVICE (1) THE COURT SHALL , IN ADDITION TO , AND SIMULTANEOUSLY WITH, THE ISSUE OF SUMMONS FOR SERVICE IN THE MANNER PROVIDED IN RULES 9 TO 19 (BOTH INCLUSIVE ), ALSO DIRECT THE SUMMONS TO BE SERVED BY REGISTERED POST , ACKNOWLEDGEMENT DUE, ADDRESSED TO THE DEFENDANT, OR HIS AGENT EMPOWERED TO ACCEPT THE SERVICE, AT THE PLACE WHERE THE DEFENDANT , OR HIS AGENT, ACTUALLY AND VOLUNTARILY RESIDES OR CARRIE S ON BUSINESS OR PERSONALLY WORKS FOR GAIN: PROVIDED THAT NOTHING IN THIS SUB - RULE SHALL REQUIRE THE COURT TO ISSUE A SUMMONS FOR SERVICE BY REGISTERED POST , WHERE, IN THE CIRCUMSTANCES OF THE CASE , THE COURT CONSIDERS IT UNNECESSARY. (2) WHEN AN ACKNO WLEDGEMENT PURPORTING TO BE SIGNED BY THE DEFENDANT OR HIS AGENT IS RECEIVED BY THE COURT OR THE POSTAL ARTICLE CONTAINING THE SUMMONS IS RECE IVED BACK BY THE COURT WITH AN ENDORSEMENT PURPORTING TO HAVE BEEN MADE BY A POSTAL EMPLOYEE TO THE EFFECT THAT THE DEFENDANT OR HIS AGENT HAD REFUSED TO TAKE DELIVERY OF THE POSTAL ARTICLE CONTAINING THE SUMMONS , WHEN TENDERED TO HIM , THE COURT ISSUING THE SUMMONS SHALL DECLARE THAT THE SUMMONS HAD BEEN DULY SERVED ON THE DEFENDANT: PROVIDED THAT WHERE THE SU MMONS WAS PROPERLY ADDRESSED, PREPAID AND DULY SENT BY REGISTERED POST, ACKNOWLEDGEMENT DUE, THE DECLARATION REFERRED TO IN THIS SUB - RULE SHALL BE MADE NOTWITHSTANDING THE FACT THAT THE ACKNOWLEDGEMENT HAVING BEEN LOST OR MISLAID, OR FOR OTHER REASON , HAS BEEN RECE IV ED BY THE COURT WITHIN THIRTY DAYS FROM THE DATE OF THE ISSUE OF THE SUMMONS] . 22 ITA NO S . 274 &275 /NAG/2015. 20 . SUBSTITUTED SERVICES V (1) WHERE THE COURT IS SATISFIED THAT THERE IS REASON TO BELIEVE THAT THE DEFENDANT IS KEEPING OUT OF THE WAY FOR THE PURP OSE OF A VO IDING SERVICE, OR THAT FOR 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 - 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 OR PERSONALLY WORKED FOR GAIN, OR IN SUCH OTHER MANNER AS THE COURT THINKS FIT . 22 [(1A) WHERE THE COURT ACTING UNDER SUB - RULE(1) ORDERS 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 VO LUNTARILY RESIDED , CARRIED ON BUSINESS OR PERSONALLY WORKED FOR GAIN . ] (2) EFFECT OF SUBSTITUTED SERVICE - SERVICE SUBSTITUTED BY ORDER OF THE COURT SHALL BE AS EFFECTUAL AS IF IT HAD BEEN MADE ON THE DEFENDANT PERSONALLY . (3) WHERE SERVICE SUBSTITUTED , TIME FOR APPEARANCE TO HE F IXED - WHERE SERVICE IS SUBSTITUTED BY ORDER OF THE COURT, THE COURT SHALL FIX SUCH TIME FOR THE APPEARANCE OF THE DEFENDANT AS THE CASE MAY ~ REQUIRE . ' 16. IN THIS REGARD I MAY FURTHER GAINFULLY REFER THE FOLLOWING CASE LAWS: (1) CIT VS. RAMENDRA NATH GHOSH 82 ITR 888 (SC): (HEAD NOTES ONLY) ADMITTEDLY THE ASSESSEES HAVE NOT BEEN PERSONALLY SERVED IN THESE CASES. THEREFORE, ONE HAS TO SEE WHETHER THE ALLEGED SERVICE BY AFFIXATION WAS IN ACCORDANCE WITH LAW. THE CONTENTION OF THE ASSESSEES WAS TH AT AT THE RELEVANT TIME THEY HAD NO PLACE OF BUSINESS. THE REPORT OF THE SERVING OFFICER DOES NOT MENTION THE NAMES AND ADDRESSES OF THE PERSON WHO IDENTIFIED THE PLACE OF BUSINESS OF ASSESSEES. THAT OFFICER DOES NOT MENTION IN HIS REPORT NOR IN THE AFFIDA VIT 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 G OING INTO THE FACTS OF THE CASE VERY ELABORATELY, AFTER EXAMINING SEVERAL WITNESSES, HAS COME TO THE CONCLUSION THAT THE SERVICE MADE WAS NOT A PROPER SERVICE. HENCE, IT IS NOT POSSIBLE TO HOLD THAT THE ASSESSEES HAD BEEN GIVEN A PROPER OPPORTUNITY TO PUT FORWARD THEIR CASE AS REQUIRED BY S. 33B. RAMENDRA NATH GHOSH VS. CIT (1967) 66 ITR 414 (CAL) : TC57R AFFIRMED. NOTICE SERVICE BY AFFIXTURE - VALIDITY - NAME OF PERSON WHO IDENTIFIED ASSESSEES BUSINESS PREMISES NOT MENTIONED IN THE REPORT OF INSPECTOR - INSPE CTOR ALSO DID NOT CLAIM PERSONAL KNOWLEDGE OF ASSESSEES PREMISES SERVICE OF NOTICE BY AFFIXTURE IS INVALID. 23 ITA NO S . 274 &275 /NAG/2015. 2 ) CIT VS. KISHAN CHAND. 328 ITR 173 (P&H) : THE ASSESSEE IS INDIVIDUAL AND AS A SEQUEL TO THE SEARCH AND SEIZURE OPERATION WAS CONDUCTED ON HIS PREMISES, HE FILED REVISED RETURN. THE AO FRAMED ASSESSMENT UNDER S. 144 OF THE ACT ON THE BASIS OF BEST JUDGEMENT ASSESSMENT. THE CIT(A) ACCEPTED THE APPEAL MAINLY ON THE GROUND THAT THE ASSESSEE HAD NOT BEEN SERVED. EVIDENCE WITH REGARD TO SERVIC E OF AFFIXTURE WAS REJECTED ON THE GROUND THAT RESORT TO AFFIXTURE COULD NOT BE STRAIGHTAWAY TAKEN WITHOUT FIRST TAKING OTHER MODES OF SERVICE. THE TRIBUNAL AFFIRMED THE SAID FINDING. IT WAS OBSERVED : FROM THE FACTS OF THE CASE, I FIND THAT THE SEARCH AN D SEIZURE OPERATIONS HAD BEEN TAKEN AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE APPELLANT AS FAR BACK AS AUGUST, 1976, AND THE INCOME OF THE ASST. YR 1969 - 70 COULD BE ASSESSED BY ISSUING A NOTICE BY 31 ST MARCH, 1978. NOTICE UNDER S. 148 WAS ISSUED ON 2 3 RD MARCH, 1978, AND THE ITO WAS NATURALLY ANXIOUS TO SEE THAT THE NOTICE GETS SERVED BY 31 ST MARCH, 1978. THOUGH HE METICULOUSLY COMPLIED WITH ALL THE FORMALITIES PRESCRIBED WITH REGARD TO THE SERVICE OF NOTICE THROUGH THE AFFIXTURE YET THE HURRY WHICH HE HAD TO MAKE IS QUITE APPARENT. AS POINTED OUT, SEARCH HAD TAKEN PLACE IN THE YEAR AUGUST, 1976, AND WHEN NO ACTION HAD BEEN TAKEN UP TO 23 RD MARCH, 1978, TAKEN RECOURSE TO SERVICE BY AFFIXTURE CAN BE SAID ONLY A SHEER FORMALITY AND NOT THE REAL SERVICE AS HELD BY THEIR LORDSHIPS IN DIFFERENT JUDGMENTS OF THE DIFFERENT HIGH COURTS, REFERRED TO ABOVE. 3. LEARNED COUNSEL FOR THE REVENUE IS UNABLE TO SHOW THAT THERE WAS ANY REFUSAL OF THE ASSESSEE TO ACCEPT SERVICE AS HAS BEEN ASSUMED IN THE QUESTION REFERRED . ON THE OTHER HAND, THE TRIBUNAL HAS CATEGORICALLY HELD THAT NO OTHER MODE WAS ADOPTED AND STEPS FOR SERVICE OF NOTICE WERE TAKEN ABOUT A WEEK BEFORE THE TIME WAS EXPIRING. 3) CIT VS. HOTLINE INTERNATIONAL (P)LTD. 296 ITR 333. AS PER ORDER 5, R. 12 OF T HE CPC, WHEREVER IT IS PRACTICABLE, THE SERVICE HAS TO BE EFFECTED ON DEFENDANT IN PERSON OR ON HIS AGENT. ADMITTEDLY, IN THE PRESENT CASE, NOTICE UNDER S. 148 WAS NOT TENDERED TO THE ASSESSEE NOR THE SAME WAS REFUSED AT ALL BY THE ASSESSEE. IT IS AN ADMI TTED CASE OF REVENUE THAT WHEN THE OFFICIALS OF THE IT DEPARTMENT WENT TO SERVE THE NOTICE UNDER S. 148 FOR THE ASST. YR. 1995 - 96, THE SECURITY GUARD INFORMED THEM THAT THE COMPANY WAS CLOSED FOR HOLI FESTIVAL HOLIDAYS. THE SECURITY GUARD BY NO STRETCH OF IMAGINATION CAN BE SAID TO BE THE AGENT OF THE ASSESSEE AND ADMITTEDLY NO NOTICE WAS TENDERED EITHER TO THE ASSESSEE OR HIS AGENT NOR THE SAME WAS REFUSED EITHER BY THE ASSESSEE OR HIS AGENT. UNDER ORDER 5, R. 17 OF THE CPC, THE AFFIXATION CAN BE DONE ONLY WHEN THE ASSESSEE OR HIS AGENT REFUSES TO SIGN THE ACKNOWLEDGEMENT OR COULD NOT BE FOUND. HERE, IN THE PRESENT CASE, NO EFFORT WAS MADE BY THE IT DEPARTMENT TO SERVE THE NOTICE UPON THE ASSESSEE, SINCE THE COMPANY OF THE ASSESSEE WAS CLOSED DUE TO HOLI FE STIVAL HOLIDAYS, AND ADMITTEDLY NO EFFORT WAS MADE BY THE SERVING OFFICER TO LOCATE THE ASSESSEE. EVEN OTHERWISE, AS PER ORDER 5, R. 19A OF THE CPC, THE NOTICE SENT BY REGISTERED POST OUGHT TO HAVE BEEN SENT ALONG WITH ACKNOWLEDGEMENT DUE, BUT ADMITTEDLY, IT WAS NOT SENT WITH ACKNOWLEDGEMENT DUE. SO, FROM THE ENTIRE MATERIAL AVAILABLE ON RECORD 24 ITA NO S . 274 &275 /NAG/2015. THERE IS NO HESITATION IN HOLDING THAT THERE HAS BEEN NO VALID SERVICE OF NOTICE UNDER S. 148 UPON THE ASSESSEE AS THE SAME WAS NEITHER TENDERED TO THE ASSESSEE OR H IS AGENT, NOR THE SAME WAS REFUSED BY EITHER OF THEM. SINCE THERE HAS BEEN NO PROPER SERVICE OF NOTICE ON THE ASSESSEE, THE REASSESSMENT PROCEEDINGS, RESULTING IN THE ORDER DT. 30 TH JAN. 2003, ARE BAD IN LAW. CONCLUSION: THERE WAS NO VALID SERVICE OF NOTICE UNDER S. 148 WHERE IT WAS NOT TENDERED TO ASSESSEE OR HIS AGENT NOR REFUSED BY THEM, NO EFFORT WAS MADE BY SERVING OFFICER TO LOCATE THE ASSESSEE BEFORE AFFIXATION AND NOTICE SENT BY REGISTERED POST WAS NOT ACCOMPANIED BY ACKNOWLEDGEMENT DUE, HENCE REASSESSMENT WAS BAD IN LAW. 17. NOW I EXAMINE THE PRESENT CASE ON THE ANVIL OF THE AFORESAID CASE LAWS. IN THIS CASE IT IS THE CLAIM OF THE REVENUE THAT NOTICE U/S 148 WAS ISSUED ON 26 - 03 - 2009. UPON REFUSAL OF THE ASSESSEE TO RECEIVE THE NOTICE, AFFIXTUR E WAS ALSO MADE ON THE SAME DATE I.E. 26 - 03 - 2009. IN THIS REGARD IT IS THE CONTENTION OF THE ASSESSEE THAT THE NOTICE WAS NEVER SERVED ON THE ASSESSEE OR HIS AGENT. THIS ASPECT HAS BEEN REPEATEDLY A GITATED BY THE ASSESSEE BEFORE THE AO AS WELL AS THE CIT (APPEALS). EXAMINATION OF THE MATERIALS PRODUCED IN THIS REGARD DO NOT REFLECT ANY EFFORT ON THE PART OF THE AO TO SERVICE THE NOTICE BY POST OR BY OTHER ORDINARY MEANS OF SERVICE AS REQUIRED BY SECTION 282. THIS FACT IS EVIDENT FROM THE DATE OF ISSUE OF N OTICE AND THE DATE OF AFFIXTURE BEING THE SAME. THE ABOVE CLEARLY REVEALS THAT THE AO HAS NOT TAKEN REASONABLE STEPS TO SERVE THE NOTICE IN THE ORDINARY COURSE. THUS AS IN THE CASE OF CIT VS. KISHAN CHAND BEFORE THE HONBLE PUNJAB & HARYANA HIGH COURT, IN THIS CASE ALSO NO OTHER MODE WAS ADOPTED AND STEPS OF SERVICE OF NOTICE WAS TAKEN EXCEPT REPORTED LY THROUGH THE AFFIXTURE ABOUT FEW DAYS BEFORE TIME WAS EXPIRED. THUS IT IS CLE AR THAT THE AO HAS NOT MADE REGULAR ATTEMPTS FOR SERVICE OF NOTICE IN REGULAR MANNERS AND WAS NOT JUSTIFIED TO MAKE SUBSTITUTED SERVICE OF NOTICE. THERE IS NO REPORT OF NOTICE SERVER TO THE EFFECT THAT THERE WAS ANY REFUSAL OF NOTICE BY THE ASSESSEE. IN THE REPORT OF INSPECTOR, NAMES OF TWO WITNESSES ARE REFERRED. THE ADDRESSES OF T HE WITNESSES ARE FAR AWAY FROM THE PREMISES OF THE ASSESSEE. THE REPORT OF THE INSPECTOR DOES NOT STATE THAT 25 ITA NO S . 274 &275 /NAG/2015. WITNESSES HAVE IDENTIFIED THE PLACE OR WAS KNOWN TO THEM PERSONALLY. AS A MATTER OF FACT DESPITE ASSESSEES REPEATED SUBMISSION THAT NOTICE HAS NOT BEEN SERVED PROPERLY, THE AO HAS NOT BOTHERED TO SERVE THE NOTICE UPON THE ASSESSEE OR HIS AGENT EVEN THOUGH THERE WAS ADEQUATE TIME FOR THE SAID SERVICE OF NOTICE THROUGH THE ORDINARY MEANS FOR SUBSEQUENT YEARS. THIS CLEARLY SHOWS A SCA N T REGARD ON THE PART OF THE ASSESSEE TO THE LEGAL PROCEDURES. IT IS SETTLED LAW INCLUDING THAT FROM THE HONBLE APEX COURT IN THE CASE OF CIT VS. RAMENDRA NATH GHOSH (SUPRA) THAT IN ABSENCE OF PROPER SERVICE OF NOTICE THE ASSESSMENT PROCEDURE LOSE THEIR VALIDITY. 18. IN THESE CIRCUMSTANCES ON THE CONSP ECTUS OF ABOVE FACTUAL SCENARIO AND THE AND CASE LAWS, I AM OF THE CONSIDERED OPINION THAT IN THIS CASE NOTICE DATED 26 - 03 - 2009 CLAIMED TO HAVE BEEN SERVED BY AFFIXTURE IS NOT AT ALL A VALID NOTICE AS MANDATED BY LAW. IN TH ESE CIRCUMSTANCES I HAVE NO HESITATION IN HOLDING THAT THE SAID AFFIXTURE IS IN UTTER DISREGARD OF THE RULES OF LAW AND HENCE I HOLD THAT IN ABSENCE OF PROPER NOTICE THE ASSESSMENT ORDER IS VOID AB INITIO. SINCE I HAVE ALREADY QUASHED THE ASSESSMENT FOR LA CK OF SERVICE OF NOTICE, ADJUDICATION AND OTHER LIM B S OF LEARNED COUNSELS SUBMISSION ON JURISDICTION AS WELL AS ON MERITS ARE NOW ONLY OF ACADEMIC INTEREST. HENCE I AM NOT ENGAGING INTO THE SAME. 19. IN THE RESULT, THESE APPEALS BY THE ASSESSEE STAND ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF JANUARY., 2017. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 5 TH JANUARY, 2017. 26 ITA NO S . 274 &275 /NAG/2015. COPY FORWARDED TO : 1. ARUNKUMAR ANANDR AO MOUNDEKAR, C/O MANOJ G. MORYANI, ADVOCATE, 1 ST FLOOR, SUDAMA BHAWAN, BEHIND SUT MARKET, GANDHIBAGH, NAGPUR - 440002. 2. I.T.O., WARD - 4( 1 ), NAGPUR. 3. C.I.T. - 1 , NAGPUR. 4. CIT(APPEALS), - 1 , NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.