Sh. Joginder Paul Vij, Phagwara V. The Income Tax Officer, Phagwara

ITA 318/ASR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8687 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-01-2017
• Assessment Year: 1995-1996
• Appeal Filed On: 30-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Onus to prove
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 292BB; 143(2); 119

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR (CAMP AT JALANDH AR ) BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO.318(ASR)/2016 ASSESSMENT YEAR: 1995-96 JOGINDER PAUL VIJ PROP. M/S JOGINDER PAUL & SONS, VILLAGE:- KHURAMPUR, HOSHIARPUR ROAD, HOSHIARPUR. PAN: VS. INCOME TAX OFFICER, WARD-I PHAGWARA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J.S.BHASIN (ADV.) RESPONDENT BY: SMT. BALWINDER KAUR (DR.) DATE OF HEARING: 23.01.2017 DATE OF PRONOUNCEMENT: 27.03.20 17 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORD ER OF LD. CIT(A), JALANDHAR, DATED 17.03.2016, FOR ASST. YEAR: 1995-9 6. 2. THE ASSESSEE HAS TAKEN THE VARIOUS GROUNDS OF AP PEAL, WHEREIN IT HAS ALSO CHALLENGED THE VALIDITY OF THE SERVICE OF NOTICE U/S 143(2). BESIDES THE LEGAL ISSUE, THE ASSESSEE HAS RAISED OT HER GROUNDS OF APPEAL ON MERITS ALSO. 3. AT THE OUTSET, THE LD. AR SUBMITTED THAT EARLIER THE HONBLE ITAT HAD RESTORED THE MATTER BACK TO CIT(A), WITH THE DI RECTIONS TO EXAMINE THE NOTICE SERVER AND TO FIRST DECIDE THIS ISSUE ON SERVICE OF NOTICE VIDE ITS ITA NO.31 8(ASR)/2016 ASST. YEAR: 1995-96 2 ORDER DATED 28.10.2005. IN VIEW OF ITAT ORDER NOTIC E SERVER MR. DILIP CHAND WAS EXAMINED BY CIT(A) AND ALSO ALLOWED CROSS EXAMINATION BY A.O AND ASSESSEE. THE ASSESSEE FILED REPLY POINTING OUT VARIOUS FLAWS/CONTRADICTIONS IN THE STATEMENT OF NOTICE SER VER. HOWEVER, VIDE ORDER DATED 17.03.2016, THE LD. CIT(A) AGAIN REJECT ED THE ASSESSEES OBJECTION WHILE GIVING PARTIAL RELIEF ON MERITS. TH E LD. AR SUBMITTED THAT VARIOUS CONTRADICTIONS WERE BROUGHT TO THE NOTICE O F LD. CIT(A) WITH RESPECT TO EXAMINATION OF DILIP CHAND, NOTICE SERVE R, BUT LD. CIT(A) WITHOUT CONSIDERING THE CONTRADICTIONS BROUGHT IN B EFORE HIS NOTICE PASSED A NON-SPEAKING ORDER AND REJECTED THE CONTEN TIONS OF ASSESSEE. THE LD. AR IN THIS RESPECT INVITED OUR ATTENTION TO PARA-5 OF LD. CIT(A) ORDER WHERE HE HAS NOTED VARIOUS OBJECTIONS RAISED BY ASSESSEE IN 15 PARAGRAPHS. THE LD. AR SUBMITTED THAT LD. CIT(A) W ITHOUT COMMENTING ON THE CONTRADICTIONS HAS PASSED THE ORDER HOLDING THAT HE WAS OF THE OPINION THAT NOTICE U/S 143(2) OF THE ACT WAS SERVE D ON ASSESSEE AND ASSESSEE WAS FULL IN KNOWLEDGE OF THE FACT THAT ASS ESSMENT PROCEEDINGS WAS GOING ON IN THIS CASE. THE LD. AR IN THIS RESPE CT INVITED OUR ATTENTION TO OPERATIVE PART OF THE LD. CIT(A)S ORDER AS CONT AINED IN PARA 8.1. 4. THE LD. DR, ON THE OTHER HAND, HEAVILY PLACED HE R RELIANCE ON THE ORDER OF AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GON E THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSEE VIDE WRITT EN SUBMISSIONS DATED 15.04.2011 HAD RAISED VARIOUS CONTRADICTIONS IN THE STATEMENT OF SH. ITA NO.31 8(ASR)/2016 ASST. YEAR: 1995-96 3 DILIP CHAND, NOTICE SERVER AND AFTER NOTING AND SUB MITTING THE CONTRADICTIONS HAD CONCLUDED THAT NOTICE U/S 143(2) DATED 27.12.1995 WAS NOT SERVED ON HIM. FOR THE SAKE OF COMPLETENESS THE CONTRADICTIONS BROUGHT INTO NOTICE AS NOTED BY LD. CIT(A) ARE REPR ODUCED HEREIN BELOW. 5. AFTER ALLOWING CROSS EXAMINATION OF NOTICE SERVER TO THE ASSESSEE AND REEXAMINATION TO THE ASSESSING OFFICER , THE LEARNED AR OF THE ASSESSEE FILED WRITTEN SUBMISSIONS VIDE L ETTER DATED 15.04.2011, THE RELEVANT PARAS WHICH READ AS UNDER: THAT PURSUANT TO CROSS EXAMINATION OF NOTICE SERVER , SHRI DALIP CHAND, AS ALLOWED TO ASSESSEE, BY YOUR HONOUR ON 12.11.2Q1 0, FOLLOWING DIRECTIONS OF THE HONBLC ITAT AMRITSAR AS GIVEN IN ITS ORDER DATED 28.10.2005, THE GLARING INCONSISTENCIES AND FALLACI ES, WORTHY OF TAKING DUE COGNIZANCE, QUA HIS REPORT EARLIER GIVEN ON 26. 11.1998, FOR THE ALLEGED SERVICE OF NOTICE ON 27.12.1995, ARE POINTE D OUT AS FOLLOWS: 1. IN HIS REPLY TO Q.NO.3, HE ADMITS THAT NO ORDER SHEET ENTRY IS MADE FOR ISSUE OF NOTICE IN HIS PRESENCE. THIS CONF IRMS THE FACT, ALREADY ESTABLISHED ON RECORD, THAT THERE WAS NO ORDER SHEE T ENTRY MADE. 2. AGAINST Q NO. 4 & 5, THOUGH HE CLAIMS TO HAVE GO NE TO PHAGWARA BY BUS IN THE FORENOON, HE ADMITS NOT TO HAVE CLAIMED ANY BUS FARE FOR THIS VISIT. IT IS HARD TO BELIEVE THAT A CLASS FOUR EMPL OYEE WOULD PERSONALLY BEAR, NOT ONLY THE BUS FARE, BUT ALSO THE LOCAL CONVEYANCE EXPENSES, TO AND FRO THE POINT WHERE HE ALLEGEDLY DELIVERED THE NOTICE, AND ALSO FOREGO HIS DAILY ALLOWANCE, WHEN HE WAS ASSIGNED WI TH THE ONEROUS TASK OF SERVING A STATUTORY NOTICE ON ASSESSEE. THE DOCUMENT S IN THE SHAPE OF TA BILL WITH SUPPORTING BUS TICKETS ETC WE RE THE LEAST, HE SHOULD HAVE PRODUCED OR RELIED UPON TO ESTABLISH TH E FACTUM OF HIS ACTUAL VISIT TO PHAGWARA ON 29.12.95. ON THE CONTRARY, IN RESPONSE TO Q NO.24, HE CONCEDES THAT BUT FOR BUS TICKET, WH ICH HE DID NOT PRESERVE, THERE WAS NO EVIDENCE TO ESTABLISH HIS VISIT TO PHAGWARA ON THE SAID DATE. PRECISELY, HE MISERABLY FAILED TO PROVE WITH ANY EVIDENCE, FAR LESS WITH ANY CLINCHING EVIDENCE, THA T DID VISIT PHAGWARA ON 29.12.95. ONCE HIS VERY VISIT TO PHAGWARA IS NOT PROVED, THE SUBSEQUENT SERVICE OF NOTICE, AS CLAIMED BY HIM, HA S ABSOLUTELY NO LEGS TO STAND UPON. HIS CLARIFICATION TENDERED ON RE-EXA MINATION BY ITO PHAGWARA, WHETHER HE CLAIMED TA BILL FOR OTHER PLAC ES HE VISITED, THAT HE DID CLAIM TA FOR VISITING NAKODAR AND BHOGPUR, B UT NOT OF PLACES NEARER TO JALANDHAR LIKE NOORMAHAL AND PHAGWARA, IS AGAIN FAR FROM CONVINCING. INTERESTINGLY, BHOGPUR IS NEARER TO JAL ANDHAR THAN PHAGWARA AND EVEN NAKODAR IS ALSO NOT TOO FAR AWAY FROM JALANDHAR, AS COMPARED TO PHAGWARA. THIS REPLY, IN ANY CASE, D OES NOT CORROBORATE HIS AVERMENT OF HAVING NOT CLAIMED THE TA FOR HIS ALLEGED VISIT TO PHAGWARA ON 29.12.95 WHEN HE ADMITTED TO C LAIM TA BILL FOR VISITING BHOGPUR AND NAKODAR. ITA NO.31 8(ASR)/2016 ASST. YEAR: 1995-96 4 3. AGAINST Q.NO. 6, HE REPLIED THAT HE WENT S TRAIGHT TO VIJ PALACE AND DID NOT GO TO ASSESSEES SHOP (AT DANA MANDI, P HAGWARA). CONTRARY TO IT, IN HIS REPORT DATED 26.11.1998, HE CATEGORICALLY SAID TO HAVE FIRST GONE TO DANA MANDI, WHERE NO BODY WAS AV AILABLE AND UPON ENQUIRIES MADE FROM NEIGHBORS, HE LEARNT THAT MR VI J DID NOT SIT THERE, BUT AT VIJ PALACE, PHAGWARA. THEN HE WENT TO VIJ PA LACE. THIS GLARING INCONSISTENCY IN TWO STATEMENTS HITS HARD ON THE CR EDIBILITY OF WHAT HE HAS STATED THUS FAR. 4. IN RESPONSE TO Q. NO. 7, HE STATES NOT TO HAVE GONE INTO THE OFFICE OF ASSESSEE IN VIJ PALACE, BUT HE MET HARBANS AT TH E VERY ENTRANCE, WHO INFORMED HIM ABOUT THE PRESENCE OF MR VIJ THERE . BUT IN HIS EARLIER REPORT OF26.11.1998, HE STALED THAT HE WENT TO ASSE SSEES OFFICE MADE IN VIJ PALACE. THERE WERE THREE FOUR PERSONS SITTIN G AROUND MR. VIJ TAKING TEA. INTERESTINGLY, HERE ALSO, THERE IS GROS S CONTRADICTION IN TWO STATEMENTS. WHILE IN THE FIRST STATEMENT, HE DOES N OT CLAIM TO HAVE COME ACROSS 'HARBANS TILL HE WAS CALLED UPON BY M R. VIJ TO TAKE THE NOTICE, IN THE LATER ONE, HE CLAIMS TO HAVE MET HAR BANS AT THE VERY 5. IN REPLY TO Q.NO.8, HE DENIES TO HAVE ALREAD Y MET HARBANS, OF WHOM, AS FURTHER CLAIMED BY HIM IN HIS REPLY, HE BE CAME KNOWN, ONLY WHEN HIS NAME WAS CALLED UPON BY MR VIJ. THIS REPLY APPARENTLY CONTRADICTS HIS STAND TAKEN IN RESPONSE TO Q. 7, WHERE HE ADMITS TO HAVE MET HARBANS AT THE VERY ENTRANCE OF PALACE, WH O LEAD HIM TO MR VIJ. THUS, HIS REPLIES TO Q.NO.7 & 8 VIS A VIS HIS REPORT DATED 26.11.1998 ON THIS POINT, ARE MUTUALLY CONTRADICTOR Y. 6. IN THE COURSE OF CROSS EXAMINATION, HE NEVER SAID THAT THERE WERE THREE FOUR PERSONS SITTING AROUND MR VIJ TAKING TEA AT THE TIME WHEN HE WENT TO SERVE THE NOTICE AT VIJ PALACE. THIS AGAIN DOES NOT MATCH WITH HIS EARLIER REPORT DATED 26.11.1998, WHERE HE CATEG ORICALLY SAID SO. 7. AGAINST Q .11, HE ADMITS THAT THE NOTICE COULD BE SERVED, OTHER THAN ON ASSESSEE, ONLY IF AN ACCOUNTANT OR MANAGER IS SITTING NEAR BY. BUT IT WAS DONE ONLY IF SO ASKED TO BE DONE BY THE ASSESSEE. THEN AS PER Q NO. 12, WHEN ASKED IF HE ENQUIRED ABOUT THE I DENTIFICATION OF HARBANS, HE CAME OUT WITH A WHOLLY NEW AND STRANGE PLEA THAT HE ASKED HARBANS TO PUT HIS STAMP, WHICH HE REFUSED, A ND FURTHER THAT HE EVEN REFUSED TO GIVE HIS PHONE NO. HERE, THE SHIFTI NG STANDS OF SHRI DILIP CHAND ARE TOO PATENT TO BE EMPHASIZED. MR HAR BANS, A PETTY EMPLOYEE AS PER DALIP CHAND, COULD NOT BE EXPECTED TO BE HAVING HIS OWN PHONE NO. WAY BACK IN 1998, WHEN THE CELL PHONE /LAND LINE WAS RARELY HELD EVEN BY THE HIGH UPS. EVEN IN REPLY TO Q.NO.2 PUT TO HIM BY THE ITO IN REEXAMINATION, HE PERSISTED THAT OTHER T HAN ASSESSEE, HE SEIYED THE NOTICES ON ACCOUNTANT OR MANAGER, WHO SO EVER WAS AVAILABLE OR TOOK NOTE OF HIS PHONE NO. IF HE WAS S O PARTICULAR ABOUT ALL THESE POINTS WHILE MAKING SERVICE OF NOTICE, IT IS BEYOND PERCEPTION AS TO HOW HE SERVED THE NOTICE ON HARBANS, WITHOUT FIR ST MAKING SURE WHETHER HE WAS AN ACCOUNTANT OR MANAGER OF ASSESSEE. HIS INSISTENCE TO NOTE DOWN THE PHONE NO OF THE ACCOUNTANT /MANAGER MAY BE TRUE OF TODAY WHEN EVERY ONE IS POSSESSED OF A CELL PHONE, BUT IT COPIED CERTAINLY NOT BE SO WAY BACK IN 1998, WHEN HE CLAIM S TO HAVE ALSO ITA NO.31 8(ASR)/2016 ASST. YEAR: 1995-96 5 SOUGHT THE PHONE NO. OF HARBANS. THIS IS AN AMPLE SHOW OF BLATANT LIES AND CONCOCTIONS IN ALL HIS CLAIMS MADE SO FAR. 8. IN REPLY TO Q.NO. 15, HE ADMITS NOT TO HAVE REPO RTED TO ANYBODY THAT THE NOTICE WAS SERVED ON A PERSON OTHER THAN ASSESSEE. THIS IS IN GROSS VIOLATION OF RULE 18 READ WITH RULE 16 ORDER V OF THE CPC, 1908 WHICH MANDATES AN ENDORSEMENT TO BE MADE TO THIS EF FECT, ON THE SUMMON ITSELF. RULES 16 AND 18, BEING OF CLOSE RELE VANCE AT THIS STAGE, ARE REPRODUCED BELOW FOR QUICK REFERENCE: -ORDER V, OF THE CODE OF CIVIL PROCEDURE, 1908 RULE 16 -- PERSON SERYED TO SIGN ACKNOWLEDGEMENT - WHERE THE SERVING OFFICE DELIVERS OR TENDERS A COPY OF THE SU MMONS TO THE DEFENDANT PERSONALLY, OR TO AN AGENT OR OTHER PERSO N ON HIS BEHALF HE SHALL REQUIRE THE SIGNATURE OF THE PERSON TO WHOM T HE COPY IS SO DELIVERED OR TENDERED TO AN ACKNOWLEDGMENT OF SERVI CE ENDORSED ON THE ORIGINAL SUMMONS. RULE 18 - ENDORSEMENT OF TIME AND MANNER OF SERVICE - THE SERVING OFFICER SHALL IN ALL CASES IN WHICH THE SUMMONS HAS B EEN SER VED UNDER RULE 16. ENDORSE OR ANNEX, OR CAUSE TO BE ENDORSED OR ANNEXED, ON OR TO THE ORIGINAL SUMMONS A RETURN STATING THE TIME WHE N AND THE MANNER IN WHICH THE SUMMONS WAS SERVED AND THE NAME AND AD DRESS OF THE PERSON, IF ANY, IDENTIFYING THE PERSON SERVED AND W ITNESSING THE DELIVERY OR TENDER OF THE SUMMONS. 9. IN REPLY TO Q.22, HE CONFIRMS TO BE WORKING AS NOTICE SERVER SINCE MARCH, 1996. WHEN QUESTIONED BY YOUR GOODSELF HOW H E SERVED THE NOTICE IN DECEMBER 1995, WHEN HE BECAME NOTICE SERV ER IN MARCH, 1996, HE FEIGNED IGNORANCE WHETHER HE BECAME NOTICE SERVER IN 1995 OR 1996 AND THEN VAGUELY RELATED IT BACK TO HIS SHI FTING TO CENTRAL CIRCLE IN 1994. IT DESERVES MENTION THAT ON VARIOUS OTHER POINTS, AS HIGHLIGHTED ABOUT, HE LOST TRACK WITH WHAT HE HAD E ARLIER STALED IN HIS REPORT MADE ON 28.12.98, THOUGH, IT IS EXPECTED THA T BEFORE COMING FOR CROSS EXAMINATION, AFTER DUE NOTICE, HE MUST HAVE R ECAPITULATED THE WHOLE EVENT AND ALSO GONE THROUGH HIS EARLIER REPOR T. ON THE CONTRARY, HE CLAIMED TO BE SO QUICK AND CLEAR WHEN HE MADE WI TH PRECISION, A REPORT NARRATING AIL EVENTS IN A SINGLE DAY ON 28.1 2.98, WHEN CALLED UPON TO DO SO AT SHORT NOTICE BY MR. TP SINGH, THE THEN A O. THIS MARKED DIFFERENCE IN HIS ABILITY TO RESPOND WITH SA ME PRECISION, AT TWO DIFFERENT POINTS OF TIME, LEADS A MAN OF ORDINARY P RUDENCE, TO BELIEVE THAT THE REPORT HE PREPARED AT SHORT NOTICE ON 28.1 2.98, AFTER THE LAPSE OF OVER THREE YEARS OF THE ALLEGED SERVICE OF NOTIC E ON 29.12.95, WAS NOT ONLY A CONCOCTED ONE BUT ALSO TAILOR MADE SO AS TO SIMPLY DEFEND THE CASE OF REVENUE, MORE SO WHEN THERE IS NEITHER ANY ORDER SHEET ENTRY SUPPORTING THE ISSUE AND COMPLIANCE OF THIS NOTICE NOR ANY OTHER DOCUMENTARY EVIDENCE. 10. THUS THE CROSS EXAMINATION OF NOTICE SERVER H AS FULLY EXPOSED THE FALLACY IN THE REVENUES CLAIM THAT THE IMPUGNED NO TICE DATED 29.12.95 WAS ACTUALLY SERVED ON ASSESSEE OR ON HIS SO CALLED EMPLOYEE NAMELY ILARBANS. SH DALIP GHAND H AS UNAMBIGUOUSLY CONFESSED THAT HE WAS NOT AWARE IF HARBANS WAS AN ACCOUNTANT ON MANAGER O F ASSESSEE. THAT BEING SO, THERE WAS NO OCCASION TO PERCEIVE HI M TO BE IN EMPLOYEE ITA NO.31 8(ASR)/2016 ASST. YEAR: 1995-96 6 OF ASSESSEE. THE ASSESSEE HAS ALREADY DENIED TO HAV E ANY PERSON NAMED HARBANS, AS HIS EMPLOYEE, OR EVEN HIS RELATIV E OR FRIEND. ALL THE RELEVANT RECORDS PERTAINING TO ASSESSEES EMPLOYEES , WERE PRODUCED EARLIER BEFORE THE CIT(A). THEREFORE, THE SERVICE O F NOTICE ON HARBANS IS JUST A SHAM CLAIM DEVOID OF ANY MERITS. 11. FURTHERMORE, WHEN THERE WAS NO CORRESPONDING ENTRY MADE IN ORDER SHEET, NEITHER FOR ISSUE NOR FOR COMPLIANCE O N THE FIXED DATE IN RESPECT OF NOTICE ISSUED ON 27.12.95, NOR THE THEN AO MR. A. S. SAINI, SEEMS TO BE AVAILABLE TO EXPLAIN THE CAUSE, OF THIS SERIOUS LAPSE ON RECORD, WHICH THE HONBLE 1TAT HAS SOUGHT TO BE OBT AINED, THE ONLY INESCAPABLE CONCLUSION TO FOLLOW WOULD BE TO CONCUR WITH THE ASSESSEE'S STANDPOINT THAT NO SUCH NOTICE WAS EVER SERVED ON HIM. 12. NOW THAT THE MATTER OF SERVICE OF NOTICE I S UNDER PROBE, THE ASSESSEE SEEKS TO FILE A SWORN V. AFFIDAVIT, AS APPENDED HEREIN, DENYING SERVICE OF NOTICE DATED 27.12.1995 U/S. 143 (2), EITHER ON HIM OR ON ANY OF HIS AUTHORIZED AGENTS. ONCE THE SERVIC E OF NOTICE IS DENIED BY | ASSESSEE, BURDEN OF PROOF OF SERVICE RESTS HEAVILY ON THE REVENUE. HON BLE DELHI HIGH COURT, IN A RECENT JUDGMENT IN THE CASE OF CIT V RAJESH KUMAR SHARMA (2009) 311 1TR 235(DEL), WHILE HOLDING THAT ONUS WAS ON REVENUE TO PROVE SERVICE OF NOTICE WHER E IT IS DENIED BY ASSESSEE, SERVICE OF NOTICE ON AN UNAUTHORIZED EMPL OYEE OF ASSESSEE ''AS HELD TO BE BAD. IN 2741TR 61 (AT) ALSO, THE TR IBUNAL TOOK A VIEW THAT ONUS TO PROVE SERVICE RESTED ON REVENUE. 13. IT IS ALSO PERTINENTLY MENTIONED THAT THE AS SESSEE FIRST TIME RAISED THIS ISSUE BY WAY OF HIS LETTER DATED 16.02.98, WIT H A COPY ENDORSED TO AO, FOLLOWED BY ANOTHER LETTER DATED 24.4.98 ADDRES SED TO CIT(A), LUDHIANA (COPIES ENCLOSED). AS A NATURAL COROLLARY, THE ISSUE SHOULD HAVE BEEN ADDRESSED BY THE AO AT THIS VERY STAGE BY OBTAINING THE REPORT OF NOTICE SERVER OR IN ANY OTHER MANNER, AS COULD BE HELD TO BE LAWFUL. BUT HE SIMPLY CHOSE TO IGNORE THIS ISSUE, AND IT WAS MUCH LATER THAT THE REPORT OF THE NOTICE SERVER WAS OBTAINED O N 26.11.1998, AT THE INSTANCE OF ID. CIT(A). IT WAS IN VIOLATION OF THE REQUIREMENTS ENVISAGED IN RULE 18 ORDER V OF CPC. 14. IT WOULD CONTEXTUALLY APT TO HAVE ACCESS TO A FEW MORE, JUDICIAL PRONOUNCEMENTS ON THE DISPUTE IN QUESTION. HON 'BLE ALLAHABAD HIGH COURT IN 124 ITR 381 (ALL), WHEN SEIZED OF AN IDENT ICAL ISSUE, HELD THAT A PERSON WHO IS NOT AUTHORIZED AGENT OF ASSESSEE, O R AN AGENT OR MANAGER PERSONALLY CARRYING ON ASSESSEE'S BUSINESS, OR AN ADULT MEMBER OF HIS FAMILY BUT HAS MERELY ACCEPTED NOTICE S IN PAST ON ASSESSEE'S BEHALF CANNOT BE DEEMED OR TREATED TO BE AN AUTHORIZED AGENT OF ASSESSEE AND SERVICE ON HIM OF ASSESSMENT ORDER OF THE ASSESSEE WAS NOT VALID. IN ITO V. BEDI ENTERPRISES (2008) TTJ (LUCKNOW) 706, THE TRIBUNAL HELD THAT AS FAR AS POS SIBLE, THE SERVICE OF NOTICE SHOULD BE MADE ON THE PERSON NAMED IN NOTICE , OR ON A PERSON VESTED WITH THE AUTHORITY TO RECEIVE SUCH NOTICE AN D WHERE THE SERVICE IS BROUGHT IN DISPUTE BY ASSESSEE, IT IS FOR THE RE VENUE TO PLACE MATERIAL EVIDENCE TO SUBSTANTIVE THE CLAIM OF SERVICE OF NOT ICE. SO THE SERVICE OF NOTICE U/S.148, BY INSPECTOR ON A LADY WHO COULD NO T BE IDENTIFIED, WAS NOT HELD TO BE A VALID SERVICE IN TERMS OF SECTION 282(1) AND ORDER V RULE 18 OF THE CPC. IN THE CASE OF ACIT V. VISION INC (2 010) 37 DTR 263(DELT BENCH), SERVICE OF NOTICE ON AN EMPLOYEE OF FIRM, WHO WAS ITA NO.31 8(ASR)/2016 ASST. YEAR: 1995-96 7 NOT AUTHORIZED, WHEN THE PARTNER WAS AWAY, WAS HELD TO BE INVALID SERVICE. BEING AY 2003-04, APPLICATION OF PROVISION S OF SECTION 292BB WAS ALSO HELD NOT APPLICABLE FOLLOWING ITAT SPECIAL BENCH DECISION IN KUBER TOBACCO PRODUCTS (2009) 120 TTJ (DEL)(SB) 577 WHEREIN THE PROVISIONS OF SECTION 292BB WERE HELD TO BE APPLICA BLE FROM AY 2008- 09. LIKEWISE, IN THE CASE OF CEBON INDIA, 12 DTR (D EL) 402 (TRIB), ON HAVING PERUSED THE MATERIAL ON RECORD, THE TRIBUNAL HELD THAT IN THE ABSENCE OF ANY EVIDENCE ON RECORD TO SHOW SERVICE O F NOTICE BY PROCESS SERVER OR BY REGISTERED POST, THERE WAS NO SERVICE MADE AND HENCE, THE ASSESSMENT WAS HELD TO BE BAD. THE HON BLE PUNJAB & HARYANA HIGH COURT, DISMISSING REVENUES APPEAL IN CIT V CEBON INDIA LTD (2010) 34 DTR 119 (P&H) CONFIRMED THE FINDINGS OF THE TRIBUNA L. THE HON'BLE HIGH COURT ALSO HELD THAT IT WAS NOT A CURABLE DEFE CT U/S.292BB. THERE ARE HOST OF OTHER DECISIONS FAVOURING ASSESSEES ST AND POINT, WHICH CAN STILL BE RELIED UPON. 15. THEREFORE, THERE ARE NUMEROUS MANIFEST REASON S, AS DILATED ABOVE, TO UPHOLD THE ASSESSEES CONTENTION THAT THE NOTICE U/S. 143(2) DATED 27.12.95 WAS NOT SERVED ON HIM. BUT FOR A BAL D CLAIM OF THE NOTICE SERVER, WHICH TOO HE MISERABLY FAILED TO SUB STANTIATE WITH ANY CORROBORATIVE EVIDENCE, WHEN SUBJECTED TO CROSS EXA MINATION, NOTHING MORE IS POSSESSED BY REVENUE TO ESTABLISH THE SERVI CE OF SAID NOTICE. HENCE, APPRECIATING THE FACTS AND THE CIRCUMSTANCES OF THE CASE IN TOTALITY, THE ASSESSEES CONTENTION OF NON SERVICE OF NOTICE BE KINDLY ALLOWED AND FOR WANT OF SERVICE OF STATUTORY NOTICE U/S.143(2) WITHIN THE PRESCRIBED PERIOD, THE ORDER UNDER APPEAL BE KI NDLY HELD TO BE ILLEGAL AND NON EST BEING WITHOUT JURISDICTION. THE ABOVE CONTRADICTIONS WERE DISPOSED OFF BY LD. C IT(A) BY HOLDING AS UNDER: 8.1 AS STATED ABOVE, THE STATEMENT OF SH. DALIP CH AND, NOTICE SERVER, WAS RECORDED DURING THE COURSE OF FRESH APP ELLATE PROCEEDINGS FOR THE PURPOSE OF ALLOWING CROSS EXAMI NATION TO THE ASSESSEE AND RE-EXAMINATION TO THE ASSESSING OFFICE R. I HAVE CAREFULLY CONSIDERED THE CONTENTS OF STATEMENT OF T HE NOTICE SERVER RECORDED FOR THE PURPOSE OF CROSS EXAMINATION BY AS SESSEE AND RE- EXAMINATION BY ASSESSING OFFICER. I HAVE ALSO CONSI DERED WRITTEN SUBMISSIONS FILED BY THE ASSESSEE VIDE LETTER DATED 15.04.2011 IN CONNECTION WITH THE ISSUE UNDER REFERENCE. I HAVE F URTHER CONSIDERED VARIOUS JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE ASSESSEE AND OTHER MATERIAL PLACED BY THE ASSESSEE ON RECORD. ON CAREFUL CONSIDERATION OF THE RIVAL CONTENTIONS IN CONNECTIO N WITH THE ISSUE UNDER REFERENHCE OF THE OPINION THAT THERE IS NO DO UBT ABOUT THE FACT THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT HAS BEEN ISSUED IN THIS CASE WITHIN STIPULATED TIME. I AM ALSO OF THE OPINION THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT HAS BEEN SER VED ON SH. HARB ANS_ON THE INSTRUCTIONS OF THE ASSESSEE ON 29.12.19 95 AND THE ASSESSEE WAS IN FULL KNOWLEDGE OF THE FACT THAT ASS ESSMENT PROCEEDINGS ARE GOING ON IN HIS CASE. I AM FURTHER OF THE OPINION THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT HAS ALSO BEEN ISSUED AND ITA NO.31 8(ASR)/2016 ASST. YEAR: 1995-96 8 SERVED WITHIN THE PRESCRIBED TIME LIMIT AND IT IS N OT BARRED BY LIMITATION OF TIME. MOREOVER, THE ASSESSEE HAS NEVE R RAISED ANY OBJECTION WITH REGARD TO SERVICE OF NOTICE WHEN ASS ESSMENT PROCEEDINGS WERE GOING ON IN HIS CASE. THE ASSESSEE HAS ALSO COOPERATED IN THE ASSESSMENT PROCEEDINGS WHICH WERE COMPLETED UNDER SECTION 143(3) OF THE ACT. WE FIND THAT NONE OF THE CONTRADICTIONS BROUGHT TO NOTICE OF LD. CIT(A) WERE DISPOSED OFF BY LD. CIT(A) BY WAY OF A SPEAKING ORDER, SINCE THE SERVICE OF NOTICE IS A JURISDICTIONAL ISSUE, TH E LD. CIT(A) SHOULD HAVE DISPOSED OF THE SAME BY WAY OF PASSING A SPEAKING A ND REASONED ORDER. THEREFORE, WE DEEM IT APPROPRIATE TO REMIT THIS ISS UE BACK TO THE OFFICE OF LD. CIT(A), WHO SHOULD PASS A REASONED AND SPEAKING ORDER AFTER TAKING INTO ACCOUNT THE CONTRADICTIONS BROUGHT TO HIS NOTI CE BY LD. AR. SINCE, WE HAVE REMITTED THE JURISDICTIONAL ISSUE BACK TO T HE OFFICE OF LD. CIT(A), WE HAVE NOT ADJUDICATED ON THE MERITS OF THE CASE. 6. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27.03. 2017 . SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27.03.2017. /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