Sh. Parshotam Singh, Budhlada V. The Inocme-tax Officer, MANSA

ITA 289/ASR/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9629 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-06-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 02-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SANKAR
• Assessee Lawyers: SUDHIR SEHGAL SH J K GUPTA
• Keywords: Search and seizure; Revised return; Reason to believe; Reassessment proceedings
• Section: 147; 148; 28; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO.289(ASR)/2013 ASSESSMENT YEAR: 2003-04 SH. PARSHOTAM SINGH S/O SH. AMAR SINGH WARD NO.11, BUDHLADA PAN: BKPPS3831M VS. ITO, WARD-1(4), MANSA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. SUDHIR SEHGAL, SH. J.K. GUPTA ( ADV.) & MS. JYOTSNA (CA) RESPONDENT BY: SH. BHAWANI SANKAR (DR) DATE OF HEARING: 15.06.2016 DATE OF PRONO UNCEMENT: 04.08.2016 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE OR DER OF LEARNED CIT(A), BATHINDA, DATED 19.03.2013 FOR ASST. YEAR: 2003-04. 2. THE APPEAL WAS EARLIER DISMISSED FOR NON PROSECU TION VIDE TRIBUNAL ORDER DATED 19.11.2013, HOWEVER, THE SAID TRIBUNAL ORDER WAS RECALLED VIDE TRIBUNAL ORDER 19.5.2014 AND THE APPEAL WAS LI STED FOR HEARING ON MERITS. 3. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEA L. GROUND NOS.1 TO 4 ARE LEGAL ISSUES BY WHICH THE ASSESSEE HAS RAI SED OBJECTION TO THE SERVICE OF NOTICE U/S 148 OF THE ACT. VIDE THESE GR OUNDS OF APPEAL, THE ASSESSEE HAS CONTENDED THAT NO LAID DOWN PROCEDURE AS PER CPC HAS ITA NO.289 (ASR)/2013 ASST. YEA R: 2003-04 2 BEEN FOLLOWED AND ALSO THE AFFIXTURE OF NOTICE IN T HE ABSENCE OF INDEPENDENT WITNESS WAS NOT A LEGAL SERVICE OF NOTI CE. 4. AS THE ASSESSEE HAS RAISED JURISDICTIONAL ISSUES , THEREFORE, THE ASSESSEE WAS DIRECTED TO PROCEED WITH HIS ARGUMENTS ON JURISDICTIONAL ISSUE. 5. AT THE OUTSET, THE LEARNED AR INVITED OUR ATTENT ION TO LEARNED CIT(A)S ORDER AT PAGE-4 AND SUBMITTED THAT LEARNED CIT(A) HIMSELF HAS ADMITTED THAT THE NOTICE U/S 148 WAS ISSUED ON 30.0 3.2010 AND ON THE SAME DATE THE NOTICE WAS AFFIXED AT THE RESIDENCE O F ASSESSEE. THE LEARNED AR SUBMITTED THAT THE LEARNED CIT(A) HAS AL SO NOTED THAT THE SAID AFFIXTURE WAS WITNESSED BY SH. WAZIR SINGH, WA TERMAN-CUM-MALI OF THE OFFICE. IN VIEW OF THE ABOVE FACTS, THE LEARNED AR SUBMITTED THAT NOTICE SERVED THROUGH AN AFFIXTURE WITHOUT FOLLOWIN G THE PROCEDURE AS LAID DOWN IN CPC WAS BAD IN LAW AND, THEREFORE, ASSESSME NT ITSELF NEEDS TO BE QUASHED. RELIANCE IN THIS RESPECT WAS PLACED ON THE FOLLOWING DECISIONS. (I) SUMANGLAM SEWA AWAM EDUCATION SAMITI V/S ACIT 43ITR (TRIB) 635, ITAT- DEL. (II) CIT VS. KISHAN CHAND 328 ITR 173 (P&H HC) (III) CIT VS. RAMENDRA NATH GHOS 82 ITR 888(SC) IT WAS FURTHER SUBMITTED THAT THE CASE LAWS RELIED UPON BY ASSESSING OFFICER WERE NOT APPLICABLE TO THE FACTS AND CIRCUM STANCES OF THE PRESENT CASE, AS THE PRESENT CASE INVOLVED ISSUE OF NOTICE THROUGH AFFIXTURE ITA NO.289 (ASR)/2013 ASST. YEA R: 2003-04 3 WITHOUT FOLLOWING THE PROCEDURE AS LAID DOWN IN CPC WHEREAS THE CASE LAWS RELIED UPON BY ASSESSING OFFICER ARE RELATING TO DISPUTE ABOUT SERVICE OF NOTICE. 6. THE LEARNED DR, ON THE OTHER HAND, HEAVILY PLACE D HIS RELIANCE ON THE ORDER OF AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GO NE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS AN UNDISPUTED FACT THAT NOTICE U/S 148 WAS ISSUED ON 30.03.2010 AND ON THE SAME DATE I T WAS AFFIXED AT THE RESIDENCE OF ASSESSEE. THEREFORE, FROM THE ABOVE, I T IS APPARENT THAT BEFORE SERVICE OF NOTICE THROUGH AFFIXTURE NO EFFOR TS WERE MADE EARLIER TO SERVICE THE SAME ON THE ASSESSEE THROUGH OTHER MEAN S. THE HONBLE ITAT, DELHI BENCH IN THE CASE OF SUMANGLAM SEWA AWAM EDUCATION SAMITI VS. ACIT, 43 ITR 635 VIDE PARAS 6,9 HAS HELD AS UNDER: (PARA 6) BARE READING OF THE PROVISIONS OF THE INCOME TAX A CT, 1961 AND THE CODE OF CIVIL PROCEDURE REPRODUCED HEREIN ABOVE IT IS SE EN THAT AS PER ORDER V, RULE 12 OF THE CODE OF CIVIL PROCEDURE, WHERE IT IS PRACTICABLE THE SERVICE HAS TO BE EFFECTED ON DEFENDANT IN PERSON OR ON HIS AGENT. ADMITTEDLY, IN THE PRESENT CASE, NOTICE UNDER SECTION 148 OF THE A CT WAS NOT TENDERED TO THE ASSESSEE NOR THE SAME WAS REFUSED AT ALL BY THE ASSESSEE. IT WAS REFUSED BY THE SERVANT OF ANOTHER PERSON WHO BY NO STRETCH OF IMAGINATION CAN BE SAID TO BE THE AGENT OF THE ASSESSEE AND ADM ITTEDLY NO NOTICE WAS TENDERED EITHER TO THE ASSESSEE OR HIS AGENT NOR WA S THE SAME REFUSED EITHER BY THE ASSESSEE OR HIS AGENT. UNDER ORDER V, RULE 17 OF THE CODE OF CIVIL PROCEDURE, THE AFFIXATION CAN BE DONE ONLY WH EN THE ASSESSEE OR HIS AGENT REFUSES TO SIGN THE ACKNOWLEDGEMENT OR COULD NOT BE FOUND. HERE, IN THE PRESENT CASE, IT IS VERY MUCH APPARENT FROM THE RECORDS THAT NO EFFORT WAS MADE BY THE INCOME-TAX DEPARTMENT TO SERVE THE NOTICE UPON THE ASSESSEE AND NO EFFORT WAS MADE BY THE AO TO LOCATE THE ASSESSEE. ACCORDINGLY, FROM THE ENTIRE MATERIAL AVAILABLE ON RECORD ITAT HAVE NO HESITATION IN HOLDING THAT THERE HAS BEEN NO VALID SERVICE OF NOTICE UNDER SECTION 148 OF THE ACT UPON THE ASSESSEE AS THE SAM E WAS NEITHER ITA NO.289 (ASR)/2013 ASST. YEA R: 2003-04 4 TENDERED TO THE ASSESSEE OR HIS AGENT, NOR THE SAME WAS REFUSED BY EITHER OF THEM. (PARA 9) ITAT HOLD THAT SINCE THERE HAS BEEN NO PROPER SERVI CE OF NOTICE ON THE ASSESSEE, THE ENTIRE REASSESSMENT PROCEEDINGS, RESU LTING IN THE ORDER DATED 30.12.2008 ARE BAD IN LAW AND THE ORDER PASSE D U/S 148/143(3) DATED 30.12.2008 IS QUASHED. THE OTHER GROUNDS OF A PPEAL BECOME IN FRUCTUOUS AND ARE NOT BEING ADJUDICATED UPON. (PARA 9) CONLCUSION: REASSESSMENT U/S 148 SHALL BE INVALID WHEN NO NOTIC E IS TENDERED EITHER TO ASSESSEE OR HIS AGENT NOR SERVICE OF NOTICE IF R EFUSED EITHER BY ASSESSEE OR HIS AGENT. SIMILARLY, THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. KISHAN CHAND (SUPRA) HAS HELD THAT WHERE NO OTH ER MODE WAS ADOPTED AND STEPS FOR SERVICE OF NOTICE THROUGH AFF IXTURE WERE TAKEN ABOUT A WEEK BEFORE THE TIME WAS EXPIRING, THE NOTI CE CANNOT BE SAID TO HAVE BEEN PROPERLY SERVED. THE FINDINGS OF THE HON BLE COURT AS CONTAINED IN PARAS 2 TO 4, ARE REPRODUCED BELOW. 2. THE ASSESSEE IS INDIVIDUAL AND AS A SEQUEL TO THE SEARCH AND SEIZURE OPERATION WAS CONDUCTED ON HIS PREMISES, HE FILED REVISED RETURN. T HE AO FRAMED ASSESSMENT UNDER S. 144 OF THE ACT ON THE BASIS OF BEST JUDGMENT. T HE CIT(A) ACCEPTED THE APPEAL MAINLY ON THE GROUND THAT THE ASSESSEE HAD NOT BEEN SERV ED. EVIDENCE WITH REGARD TO SERVICE BY AFFIXTURE WAS REJECTED ON THE GROUND THAT RE SORT TO AFFIXTURE COULD NOT BE STRAIGHTAWAY TAKEN WITHOUT FIRST TAKING OTHER MODES O F SERVICE. THE TRIBUNAL AFFIRMED THE SAID FINDING. IT WAS OBSERVED : ' FROM THE FACTS OF THE CASE, I FIND THAT THE SEARCH AND SEIZURE OPERATIONS HAD BEEN TAKEN AT THE BUSINESS AND RESIDENTIAL PREMISES OF T HE APPELLANT AS FAR BACK AS AUGUST, 1976, AND THE INCOME OF THE ASST. YR. 1969-70 COULD BE ASSESSED BY ISSUING A NOTICE BY 31ST MARCH, 1978. NOTICE UNDER S. 148 WAS ISSUED ON 23RD MARCH, 1978, AND THE ITO WAS NATURALLY ANXIOUS TO SEE THAT THE NOTICE GE TS SERVED BY 31ST MARCH, 1978. THOUGH HE METICULOUSLY COMPLIED WITH ALL THE FORMALITI ES 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 23RD MARCH, 1978, TAKE N RECOURSE TO SERVICE BY AFFIXTURE CAN BE SAID ONLY A SHEER FORMALITY AND NOT T HE 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 QUEST ION REFERRED. ON THE OTHER HAND, THE TRIBUNAL HAS CATEGORICALLY HELD THAT N O OTHER MODE WAS ADOPTED AND STEPS FOR SERVICE OF NOTICE WERE TAKEN ABOUT A WEEK BEFO RE THE TIME WAS EXPIRING . ITA NO.289 (ASR)/2013 ASST. YEA R: 2003-04 5 4. IN VIEW OF THE FINDING OF THE TRIBUNAL, WHICH I S NOT SHOWN TO BE PERVERSE, THE QUESTION REFERRED HAS TO BE ANSWERED AGAINST THE REVENU E AND IN FAVOUR OF THE ASSESSEE. ORDERED ACCORDINGLY. THIS BENCH WHILE HOLDING CAMP AT JAMMU HAS DECIDED A SIMILAR ISSUE IN THE CASE OF SH. SURESH KUMAR SHARMA VS. ITO, IN ITA NO.118(ASR)/2015. THE RELEVANT FINDINGS OF THE TRIBUNAL AS CONTAINED FROM PARA 7 ONWARDS ARE REPRODUCED BELOW. 7. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS AN UNDISPUTED FACT THAT AS PER ORDER SHEET ENTRIES THE ASSESSING OFFICER, WARD 1(3) RECE IVED APPROVAL FOR REOPENING OF THE CASE U/S 147 ON 23.3.2012 AND ON T HE SAME DATE NOTICE U/S 148 WAS ISSUED AND THE SAME WAS AFFIXED ON 30.3 .2012 AT 34 P, TRIKUTA NAGAR, EXT. JAMMU. THE AFFIXTURE NOTICE DAT ED 30.3.2012 IS PLACED AT PAPER BOOK PAGE 14. THE ORDER SHEET ENTRIES DO N OT REFLECT ANY EFFORT ON THE PART OF ASSESSING OFFICER TO SERVE THE NOTICE B Y POST OR BY OTHER ORDINARY MEANS OF SERVICE AS REQUIRED BY SECTION 28 2. SECTION 282 REQUIRES THE SERVICE OF NOTICE BY POST OR COURIER OR IN SUCH MANNER AS PROVIDED UNDER CPC, 1908 IN ORDER V, RULE 12 TO 20. VARIOUS DECISIONS OF THE TRIBUNAL AND COURTS AS RELIED UPON BY THE LEARNED A R HAS HELD THAT BEFORE RESORTING TO THE MANNER OF SERVICE BY THE AFFIXTURE THE ASSESSING OFFICER HAS TO TAKE REASONABLE AND SUFFICIENT STEPS TO SERV ICE THE NOTICE THROUGH POST. THE HONBLE ITAT, DELHI IN THE CASE OF DR. K.C. VERMA VS. ACIT, 84 ITD 33 (DEL.) REPRODUCING THE PROVISIONS AS CONTAIN ED IN ORDER V, RULES 12 TO 20 HAS HELD AS UNDER: 8. SECTION 282 PROVIDES THE MANNER IN WHICH A VALI D SERVICE CAN BE AFFECTED. ACCORDINGLY TO THIS SECTION, A NOTICE UND ER THE ACT IS TO BE SERVED EITHER BY POST OR AS IF IT WAS SUMMON UNDER THE CODE OF CIVIL PROCEDURE, 1908. IN THE PRESENT CASE, ADMITTEDLY, N OTICE WAS NEVER SENT BY POST. SO THE QUESTION ARISES WHETHER THE SE RVICE WAS EFFECTED IN ACCORDANCE WITH THE PROVISIONS OF CIVIL PROCEDURE CODE. THE RELEVANT PROVISIONS OF THE SERVICE OF SUMMONS U NDER THE CODE OF CIVIL PROCEDURE ARE CONTAINED IN ORDER V RULES 12 T O 20. RULE 12 PROVIDES THAT SERVICE SHALL BE MADE ON THE DEFENDAN T IN PERSON WHEREVER IT IS PRACTICABLE UNLESS HE HAS AN AGENT E MPOWERED TO ACCEPT THE SERVICE IN WHICH CASE SERVICE ON SUCH AG ENT SHALL BE SUFFICIENT. ADMITTEDLY, PERSONAL SERVICE ON THE ASS ESSEE WAS NOT AFFECTED IN THE PRESENT CASE. THE CLAIM OF THE DEPA RTMENT IS THAT SERVICE OF NOTICE UNDER SECTION 142 WAS EFFECTED BY AFFIXTURE. RULE 17 PROVIDES SERVICE BY AFFIXTURE AND THE SAME IS BE ING REPRODUCED AS UNDER: 17. PROCEDURE WHEN DEFENDANT REFUSED TO ACCEPT SERV ICE, O ITA NO.289 (ASR)/2013 ASST. YEA R: 2003-04 6 WHERE THE DEFENDANT OR HIS AGENT OR SUCH OTHER PERS ON AS AFORESAID REFUSED TO SIGN THE ACKNOWLEDGEMENT, OR WHERE THE S ERVING OFFICER, AFTER USING ALL DUE AND REASONABLE DILIGENCE, CANNO T FIND THE DEFENDANT, WHO IS ABSENT FROM HIS RESIDENCE AT THE TIME WHEN SERVICE IS SOUGHT TO BE EFFECTED ON HIM AT HIS RESI DENCE WITHIN A REASONABLE TIME AND THERE IS NO AGENT EMPOWERED TO ACCEPT SERVICE OF THE SUMMONS ON HIS BEHALF, NOR ANY OTHER PERSON ON WHOM SERVICE CAN BE MADE, THE SERVING OFFICER SHALL AFFI X 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 SHALL THE N RETURN THE ORIGINAL TO THE COURT FROM WHICH IT WAS ISSUED, WQT H A REPORT ENDORSED THEREON OR ANNEXED THERETO STATING THAT HE HAS SO AFFIXED THE COPY, THE CIRCUMSTANCES UNDER WHICH HE DID SO A ND THE NAME AND ADDRESS OF THE PERSON (IF ANY) BY WHOM THE HOUS E WAS IDENTIFIED AND IN WHOSE PRESENCE THE COPY WAS AFFIX ED. RULE 19 PROVIDES THAT WHERE A SUMMON IS RETURNED UN DER RULE 17, THE COURT SHALL, IF THE RETURN UNDER THAT RULE HAS NOT BEEN VERIFIED BY THE AFFIDAVIT OF THE SERVING OFFICER AND MAY, IF IT HAS BEEN SO VERIFIED, EXAMINE THE SERVING OFFICER ON OATH, OR CAUSE HIM T O 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 SUMMON HAS BEEN DULY SERVED OR ORDER SUCH SERVICE AS IT THINKS FIT. AT THIS STAGE, THE ATTENTION IS ALSO DR AWN TO RULE 20 WHICH PROVIDES THE CIRCUMSTANCES UNDER WHICH THE SUBSTITU TED SERVICE CAN BE EFFECTED. FOR THE BENEFIT OF THIS ORDER, THE PRO VISIONS OF RULE 20 ARE BEING REPRODUCED AS UNDER : 20. SUBSTITUTED SERVICE - WHERE THE COURT IS SATISF IED THAT THERE IS REASON TO BELIEVE THAT THE DEFENDANT IS KEEPING OUT OF THE WAY FOR THE PURPOSE OF AVOIDING SERVICE, OR THAT FOR ANY OT HER REASON THE SUMMONS CANNOT BE SERVED IN THE ORDINARY WAY, THE C OURT SHALL ORDER THE SUMMONS TO BE SERVED BY AFFIXING A COPY T HEREOF IN SOME CONSPICUOUS PLACE IN THE COURT-HOUSE AND ALSO UPON SOME CONSPICUOUS PART OF THE HOUSE (IF ANY) IN WHICH THE DEFENDANT IS KNOWN TO HAVE LAST RESIDED OR CARRIED ON BUSINESS O R PERSONALLY WORKED FOR GAIN, OR IN SUCH OTHER MANNER AS THE COU RT THINKS FIT. THE PERUSAL OF THE ABOVE PROVISIONS SHOWS THAT BEFO RE ORDERING FOR SUBSTITUTED SERVICE, THE COURT MUST BE SATISFIED TH AT THE DEFENDANT IS KEEPING OUT OF THE WAY FOR THE PURPOSES OF AVOID ING SERVICE OR THAT FOR ANY OTHER REASON THE SUMMONS CANNOT BE SER VED IN THE ORDINARY WAY. FURTHER, BEFORE AFFIXTURE THE SERVING OFFICER MUST USE ITS DUE AND REASONABLE DILIGENCE TO FIND OUT THE DE FENDANT AND IF THE CIRCUMSTANCES AS MENTIONED IN RULE 17 EXIST THEN ON LY THE NOTICE MAY BE SERVED BY AFFIXTURE THAT TOO IN THE PRESENCE OF WITNESSES BY WHOM THE HOUSE WAS IDENTIFIED AND IN WHOSE PRESENCE THE COPY WAS AFFIXED. THIS VIEW FINDS SUPPORT FROM THE JUDGM ENT OF THE APEX COURT IN THE CASE OF RAMENDRA NATH GHOSH (SUPRA). I N THAT CASE, THE SERVICE WAS AFFECTED BY AFFIXTURE BY THE INSPECTOR OF INCOME-TAX BUT ITA NO.289 (ASR)/2013 ASST. YEA R: 2003-04 7 IN HIS REPORT HE DID NOT MENTION THE NAMES AND ADDR ESSES OF THE PERSON WHO IDENTIFIED THE PLACE OF BUSINESS OF THE ASSESSEE NOR DID HE MENTION IN HIS REPORT OR IN THE AFFIDAVIT FILED BY HIM THAT HE PERSONALLY KNEW THE PLACE OF BUSINESS OF THE ASSESS EE. THE MATTER TRAVELLED UP TO SUPREME COURT AND IT WAS HELD FINAL LY THAT THE SERVICE OF NOTICE WAS NOT IN ACCORDANCE WITH LAW. 9. IN THE PRESENT CASE, THE NOTICE WAS ISSUED AND SERV ED ON THE SAME DAY. IT IS NOT NECESSARY FOR ME TO GIVE ANY FINDING AS TO WHETHER THE NOTICE SERVER OR THE INSPECTOR VISITED THE HOUSE OF THE ASSESSEE THE OR NOT SINCE, IN MY VIEW, THE ALLEGED SERVICE OF NOTICE WAS NOT IN ACCORDANCE WITH LAW. FACTS OF THE CASE DO NOT POINT OUT THAT ANY EFFORT WAS MADE TO FIND OUT THE WHERE ABOUT OF THE ASSESSEE. THERE IS ALSO NO REPORT TO THE EFFECT THAT ASSESSEE WAS NOT AVAILABLE, DESP ITE PROPER ART, AT THE RESIDENCE. THE ORIGINAL REPORT OF THE NOTICE SERVER WAS SEEN BY ME IN THE COURSE OF REARING. THERE IS NO RE PORT OF THE NOTICE SERVER THAT ASSESSEE COULD NOT BE FOUND IN S PITE OF HIS DUE DILIGENCE. FURTHER, THE ALLEGED AFFIXTURE OF THE NO TICE WAS NOT IN THE PRESENCE OF ANY WITNESS, WHICH IS THE REQUIREME NT OF LAW. THERE IS ALSO NO MATERIAL ON THE RECORD ON THE BASI S OF WHICH THE ASSESSING OFFICER COULD HAVE REASON TO BELIEVE THAT ; DEFENDANT WAS KEEPING OUT OF THE WAY FOR THE PURPOSES OF AVOI DING SERVICE OR THAT FOR ANY OTHER REASON, SUMMONS COULD NOT BE SERVED IN ORDINARY WAY. FURTHER, THERE IS NO ORDER PASSED BY THE ASSESSING OFFICER TO THE EFFECT: THAT SERVICE BY AF FIXTURE WAS MADE IN TERMS OF RULE 20. SO IT APPEARS THAT THE SO -CALLED SERVICE WAS IN UTTER DISREGARD OF THE PROVISIONS OF ORDER V RULES 17,19 & 20. ACCORDINGLY, IT IS HELD THAT THERE WAS NO VALID SERVICE OF NOTICE ISSUED UNDER SECTION 142(1). REGA RDING THE SECOND NOTICE UNDER SECTION 142(1), THERE IS NOTHIN G ON THE RECORD AS TO HOW THE NOTICE WAS SERVED. THE ASSESSE E HAS TOTALLY DENIED ANY SERVICE OF NOTICE UNDER SECTION 142(1). IN VIEW OF THE ABOVE DISCUSSION, IT IS, THEREFORE, HELD THA T JURISDICTION TO ASSESS UNDER SECTION 144 WAS NOT VALIDLY ASSUMED AN D CONSEQUENTLY, THE IMPUGNED ASSESSMENTS UNDER SECTIO N 144 WERE VOID AB INITIO. IN THE PRESENT CASE WE FIND THAT THE ADMITTEDLY NO EFFORT WAS MADE BY ASSESSING OFFICER TO SERVE THE NOTICE IN AN ORDINAR Y WAY. FURTHER THERE IS NO ORDER PASSED BY ASSESSING OFFICER TO THE EFFECT THAT SERVICE BY AFFIXTURE WAS MADE IN ACCORDANCE WITH LAW. THE SO CALLED NOTI CE THROUGH AFFIXTURE IS IN UTTER DISREGARD TO RULE 17, 19 & 20 OF ORDER V OF CPC. THE CASE LAWS RELIED ON BY ASSESSING OFFICER DO NOT RELATE TO THE ISSUE OF NOTICE THROUGH ITA NO.289 (ASR)/2013 ASST. YEA R: 2003-04 8 AFFIXTURE AND THEREFORE ARE NOT APPLICABLE TO THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE. 8. THEREFORE, RESPECTFULLY FOLLOWING THE CASE LAWS RELIED ON BY LEARNED AR, WE HOLD THAT SERVICE OF NOTICE THROUGH AFFIXTUR E WAS ILLEGAL AND THEREFORE, VOID AB INITIO AND THEREFORE, WE QUASH T HE ASSESSMENT ORDER. 9. SINCE, WE HAVE QUASHED THE ASSESSMENT ORDER ITSE LF THE GROUNDS OF APPEAL ON MERITS HAS NOT BEEN ADJUDICATED AS THE SA ME HAS BECOME INFRUCTUOUS 10. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE A SSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 .08.2016. SD/- SD/- (A.D. JAIN) ( T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTA NT MEMBER DATED:04.08.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER