SMT. NALINI SHYAM MOUNDEKAR, Nagpur V. ITO, WARD- 4(1), Nagpur

ITA 516/NAG/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7644 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 15-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Unexplained investment; Search and seizure; Opportunity of being heard; Principle of natural justice; Reasonable cause; Procedural lapse; Assessment record; Condonation of delay; Revised return; Reason to believe; Reassessment proceedings
• Section: 142(1); 133A; 147; 131; 148; 6; 144; 139

Judgement Text

1 ITA NOS. 516,517&518/NAG/2014. IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER.. I.T.A. NOS. 516, 517 & 518/NAG/2014. ASSESSMENT YEAR : 2003 - 04, 2004 - 05 & 2005 - 06. LATE SHRI SHYAM ANAND MOUNDEKAR, THE INCOME - TAX OFFICER, L/H SMT. NALINI SHYAM MOUNDEKAR, VS. WARD - 4(1), NAGPUR. NAGPUR. PAN AICPM6255D. APPELLANT. RESPO NDENT. APPELLANT BY : SHRI K.P. DEWANI. RESPONDENT BY : SHRI A.R. NINAWE. DATE OF HEARING : 23 - 03 - 2017. DATE OF PRONOUNCEMENT : 27 TH MARCH, 2017. O R D E R. PER BENCH: AT THE OUTSET WE NOTE THAT THERE IS A DELAY OF 202 DAYS IN FILING THESE APPEALS BY THE ASSESSEE FOR THE CONCERNED ASSESSMENT YEAR S . IN THE APPLICATION FOR CONDONATION OF DELAY THE ASSESSEE HAS CONTENDED AS UNDER : 1. THE APPEALS FILED BY ASSESSEE ARE BEYOND TIME. THE DELAY IN FILING APPEALS HAS BEEN CAUSED UNDER PECULIAR CIRCUMSTANCES WHICH WERE BEYOND THE CONTROL OF ASSESSEE. 2. THE FIRST APPEALS WERE REPRESENTED BY LATE SHRI M. MANI, ADVOCATE BEFORE CIT(A) - 1,NAGPUR IN THE MONTHS OF DECEMBER,2013 TO FEBRUARY, 2014. THE APPEALS OF ASSESSEE CAME TO BE DISPOSED OFF BY DISMISSAL BY HONBLE CIR(A) - 1, NAGPUR VIDE ORDER 14/02/2014. THE APPELLATE ORDER WERE RECEIVED BY ADVOCATE LATE SHRI M. MANI ON 28/03/2014. 3. LATE SHRI M. MANI, ADVOCATE WAS SERIOUSLY ILL AND ULTIMATEL Y HAS EXPIRED ON 18/10/2014. THE AFORESAID APPELLATE ORDERS RECEIVED BY ADVOCATE M. MANI WERE MISPLACED IN HIS OFFICE ON ACCOUNT OF HIS ILLNESS WHICH RESULTED INTO HIS DEATH AFTER A SHORT TIME. THE AFORESAID 2 ITA NOS. 516,517&518/NAG/2014. APPELLATE ORDERS WERE FORWARDED TO ASSESSEES OFFICE IN THE FIRST WEEK OF DECEMBER, 2014 BY THE STAFF IN THE OFFICE OF ADVOCATE SHRI M. MANI AFTER DEMISE OF SHRI M. MANI, ADVOCATE. THE ASSESSEE AFTER RECEIPT OR ORDERS HAS GOT PREPARED APPEALS AND FILED THE SAME ON 15/12/2014. THE DELAY OF 231 DAYS IN FILING APPEALS IS FOR THE DETAILED REASONS AS EXPLAINED HEREINABOVE. THE ASSESSEE HAS ACTED PROMPTLY AND DILIGENTLY AND IMMEDIATELY FILED APPEALS SOON AFTER THE KNOWLEDGE OF APPELLATE ORDERS WAS MADE KNOWN TO HER. 4. IT IS RESPECTFULL Y SUBMITTED THAT DELAY OCCURRED UNDER THE AFORESAID PECULIAR CIRCUMSTANCES CONSTITUTES A REASONABLE AND SUFFICIENT CAUSE. THE DELAY WAS ON ACCOUNT OF DEMISE OF THE COUNSEL AND FAILURE ON PART OF STAFF IN OFFICE OF LATE COUNSEL TO INFORM ASSESSEE ABOUT THE FATE OF APPEALS WHICH CONSTITUTES REASONABLE AND SUFFICIENT CAUSE. IN VIEW OF ABOVE ASSESSEE COULD NOT BE SAID TO BE NEGLIGENT AND HENCE THERE COULD BE NO INTENTION FOR DELAY IN FILING APPEALS. 5. IT IS SETTLED LAW THAT THE EXPRESSION SUFFICIENT CAUSE WITHI N THE MEANING OF SECTION 5 OF LIMITATION ACT SHOULD RECEIVE LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENT OR INACTION IS IMPUTABLE TO PARTY. IN THE FACTS OF THE PRESENT CASE NO NEGLIGENCE ON THE PART OF ASSESSEE CAN BE SEEN. T HE ASSESSEE PLACES RELIANCE ON THE DECISION OF HONBLE APEX COURT IN THE CASE REPORTED AT 167 ITR 471 (SC) IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI & ORS. 6. THE ASSESSEE ENCLOSES HEREWITH LETTER RECEIVED FROM SHRI MAHAVIR ATAL DELIVERING AP PELLATE ORDERS ON 03/12/2014 AND ALSO EXPLAINING THE REASON FOR DELAY IN COMMUNICATION OF APPELLATE ORDERS TO ASSESS. 7. IN VIEW OF ABOVE, IT IS HUMBALY SUBMITTED THAT DELAY OCCURRED DUE TO DEMISE OF COUNSEL ND FAILURE ON THE PART OF STAFF IN THE OFFICE OF TH E DECEASED COUNSEL TO COMMUNICATE ABOUT THE FATE OF APPEALS AND TO TAKE ACTION FOR FILING APPEALS. IT IS SUFFICIENT CAUSE FOR CONDONATION OF DELAY IN FILING APPEALS. 8. CONSIDERING THE ABOVE FACTUAL POSITION, IT IS HUMBLY PRAYED THAT THE DELAY IN FILING THE A BOVE APPEALS BE CONDONED AND APPEALS BE ADMITTED FOR ADJUDICATION ON MERITS. 2. WE HAVE HEARD BOTH THE COUNSEL ON THE ISSUE OF CONDONATION OF DELAY. WE FIND THAT THE REASONABLE CAUSE HAS BEEN ATTRIBUTED TO THE ILLNESS AND DEATH OF THE EARLIER ADVOCATE SHRI M. MANI. CONSIDERING THE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE, WE CONDONE THE DELAY AND HENCE THE APPEALS ARE ADMITTED. 3 ITA NOS. 516,517&518/NAG/2014. 3. AT THE OUTSE T WE NOTE THAT ONE COMMON ISSUE RAISED IN ALL THESE APPEALS IS THE ASSESSEES CHALLENGE TO THE VALIDITY OF RE OPENING. THE COMMON GROUNDS IN THIS REGARD ARE AS UNDER : 1. THE NOTICE ISSUED U/S 148 OF I.T. ACT, 1961 IS ILLEGAL, INVALID AND BAD IN LAW AND CONSEQUENT ASSESSMENT FRAMED U/S 144 R.W.S. 147 OF I.T. ACT, 1961 IS LIABLE TO BE CANCELLED. 2. THE NOTICE ISSUE D U/S 148 OF I.T. ACT, 1961 IN THE CASE OF ASSESSEE HAS NOT BEEN SERVED ON ASSESSEE IN ACCORDANCE WITH LAW AND TH 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. NO REASONABLE OPPORTUNITY OF BEING HEARD IS PROVIDED TO ASSESSEE AND THIS CONSEQUENT ASSESSMENT FRAMED THEREUPON IS LIABLE TO BE CANCELLED. 4 . AT THE OUTSET IN THIS REGARD LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEES CHALLENGE TO THE VALIDITY OF JURISDICTION QUA INVALIDITY OF SERVICE OF NOTICE IS ON IDENTICAL FACTS AS IN THE CASE OF ANOTHER ASSESSEE OF THE SAME GROUP, NAMELY, ARUNKUMAR ANANDRAO MOUNDEKAR IN ITA NOS. 274 & 275/NAG/2015 VIDE ORDER DATED 5 TH JANUARY, 2017. LEARNED COUNSEL SUBMITTED THAT THE FACTS OF THE CASE AND THE ORDER OF LEARNED CIT(APPEALS) QUA THIS ISSUE IS IDENTICAL AS IN THAT CASE. LEARNED COUNSEL SUBMITTE D THAT IN THE SAID CASE THIS TRIBUNAL HAD QUASHED THE ASSESSMENT ON THE GROUND OF LACK OF VALIDITY OF NOTICE. HENCE LEARNED COUNSEL SUBMITTED THAT THE SAME MAY BE FOLLOWED. 5. PER CONTRA LEARNED D.R. THOUGH SUPPORTED THE ORDER OF LEARNED CIT(APPEALS) BUT DID NOT DISPUTE THE FACT THAT THE CIRCUMSTANCES IN THE PRESENT CASE AND THE FACTS THEREIN ARE SIMILAR TO THE ONE DEALT WITH BY THIS TRIBUNAL IN THE CASE OF ARUNKUMAR ANANDRAO MOUNDEKAR (SUPRA). 4 ITA NOS. 516,517&518/NAG/2014. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED TH E RECORDS. IN THIS REGARD WE MAY GAINFULLY REFER TO THE ADJUDICATION BY THE TRIBUNAL IN THE ABOVE CASE AS UNDER : 9. BRIEF FACTS OF THE CASE ENCOMPASSING THE ISSUE RELATING TO THE ISSUE OF NOTICE AND THE ASSESSEES CHALLENGE THEREOF HAS BEEN RECORDED BY THE AO IN THE ASSESSMENT ORDER AS UNDER : A SURVEY ACTION U/S 133A WAS CONDUCTED IN THE MOUNDEKAR GROUP ON 24.11.2008. DURING THE COURSE OF SURVEY PROCEEDINGS, SOME DOCUMENTS PERTAINING TO ASSESSEE AND HIS BUSINESS 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 DATES. 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 5 ITA NOS. 516,517&518/NAG/2014. PROSECUTION PROCEEDINGS 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 THE NOTICES U I S 148 OF TH E INCOME T AX AC T WERE DULY SERVED IN YOUR CASES F OR THE BELOW MENTIONED A S SE SSMENT 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 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 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 / S 133A OF THE IT . ACT , BY WAY OF 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 ACTIV 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 6 ITA NOS. 516,517&518/NAG/2014. 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 WERE 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 HAS A LSO NOTED TH A T A FT ER THE NOTICES 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 14 8 WERE SER V E D 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 XCEPT 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. 7. AN ADJOURNMENT WAS SOUGHT 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 7 ITA NOS. 516,517&518/NAG/2014. O N 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 AWA 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 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 8 ITA NOS. 516,517&518/NAG/2014. 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 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 9 ITA NOS. 516,517&518/NAG/2014. 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 : 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 10 ITA NOS. 516,517&518/NAG/2014. 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 ACTION, 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 OTH ER THAN BY WAY OF 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 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 APPELL ANT. THE FACT THAT THE AO FOR WANT OF COMPLIANCE FROM THE APPELLANT WAS CONSTRUCTED TO PASS THE ASSESSMENT ORDER 11 ITA NOS. 516,517&518/NAG/2014. 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 RE CORD 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 APPELLA NT IS NOT APPLICABLE TO THE FACTS OF THE CASE OF THE APPELLANT. THE FACTS OF THE CASE MAKE IT ABUNDANTLY CLEAR THAT THERE WAS NO PROCEDURAL LAPSE IN SERVICE OF NOTICE U/S 148 OF THE ACT. THE SERVICE THROUGH NOTICE SERVER IS THE MOST PREFERRED MODE OF SERVI CE 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 NO T A CASE WHERE SERVICE 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 SHOULD 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 CONTENTS 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 PRI NCIPLES OF NATURAL 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 CONTENTIONS OF THE LEARNED COUNSEL OF THE ASSESSEE ARE SUMMARIZED AS UNDER : 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 ASS ESSMENT ORDER. A.O. WITHOUT DISPOSING THE OBJECTION OF ASSESSEE 12 ITA NOS. 516,517&518/NAG/2014. 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 SERVICE 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. N OTICE U/S 148 ARE ISSUED ON 26/ - 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 PROCESS OF AFFIXTURE FOR NO VALID JUSTIFICATION. E) REASONS RECORDED NOT PROVIDED TO ASSESSEE BY LEARNED A.O. AND EVEN BY HONBLE CIT(A). 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. 13 ITA NOS. 516,517&518/NAG/2014. 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 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 ATTEMPTS 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. 14 ITA NOS. 516,517&518/NAG/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. 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 SERVIC E WAS IN ACCORDANCE WITH LAW. 15 ITA NOS. 516,517&518/NAG/2014. 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 PROCEDURA L 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 RECORDED 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 ITSELF. 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 COMMUNICATION 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 (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 16 ITA NOS. 516,517&518/NAG/2014. (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 OTHER 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 TO 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 PLAINT 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 MATERIAL QUESTIONS RELATING TO THE 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 . 17 ITA NOS. 516,517&518/NAG/2014. 2 . COPY 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 MAK E 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 JURISDICTIO N , OR (B) WITHOUT 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 SITU ATE) 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 SHAL L ALSO DIRECT THE DEFENDANT TO P R ODUCE , ON THE DAY FIXED FOR H I S APPEARANCE , ALL WITNESSES UPON WHOSE EVIDENCE HE INTENDS TO RELAY IN SUPPOR T OF HIS CASE. SERVICE OF SUMMONS 9 . DELIVERY OR TRANSMISS I ON OF SUMMONS FOR SERVICE ( 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 18 ITA NOS. 516,517&518/NAG/2014. 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 SERVICE SERVICE 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 . SERVICE TO BE ON DEFENDANT ON PERSON WHEN PRACTICABLE , OR ON HIS AGENT WHEREVE R I T I S PR ACT 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 VICE 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 , SERVICE 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. SERVICE 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 SERVICE , 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 THERE 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 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. 1 7 . PROCEDURE WHEN DEFENDANT REFUSES TO ACCEPT SERVICE , OR CANNOT HE FOUND WHERE THE DEFENDANT OR HIS AGENT OR SUCH OTHER PERSON AS AFORESAID REFUSES TO SIGN THE 19 ITA NOS. 516,517&518/NAG/2014. 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 EMPOW ERED TO ACCEPT SERVICE OF THE SUMMONS ON HIS BEHALF , 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 WORKS 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 WHIC H HE DID SO , AND THE NAME AND ADDRESS OF THE PERSON(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 PER SON SERVED AND WITNESSING THE DELIVERY OR TENDER OF THE SUMMONS . 19 . EXAMINATION OF SERVING OFFICER WHERE A SUMMONS IS RETURNED UNDER RULE 17 , THE COURT SHALL , IF THE RETURN UNDER THAT RULE HAS NOT BEEN N 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 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 SUMM ONS 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 CARRIES 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 REGISTE RED POST , WHERE, IN THE CIRCUMSTANCES OF THE CASE , THE COURT CONSIDERS IT UNNECESSARY. (2) WHEN AN ACKNOWLEDGEMENT PURPORTING TO BE SIGNED BY THE DEFENDANT OR HIS AGENT IS RECEIVED BY THE COURT OR THE POSTAL ARTICLE CONTAINING THE SUMMONS IS RECEIVED 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 CO NTAINING 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 SUMMONS WAS PROPERLY ADDRESSED, PREPAID AND DULY SENT BY REGISTERED POST, ACKNOWLE DGEMENT 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 RECEIVED BY THE COURT WITHIN THIRTY DAYS FROM THE DATE OF THE ISSUE OF T HE SUMMONS] . 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 PURPOSE OF AVOIDING 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 20 ITA NOS. 516,517&518/NAG/2014. 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 VOLUNTARILY 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 FIXED - 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 THAT AT THE RELEVANT TIME THEY HAD NO PLACE OF BUS INESS. 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 AFFIDAVIT FILED BY HIM THAT HE PERSONALLY KNEW THE PLA CE 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 GOING 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. RAMEND RA 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 - INSPECTOR ALSO DID NOT CLAIM PERSONAL KNOWLEDGE OF AS SESSEES PREMISES SERVICE OF NOTICE BY AFFIXTURE IS INVALID. 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 APPE AL MAINLY ON THE GROUND THAT THE ASSESSEE HAD NOT BEEN SERVED. EVIDENCE WITH REGARD TO 21 ITA NOS. 516,517&518/NAG/2014. SERVICE 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 AFFIRM ED 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 THE APPELLANT AS FAR BACK AS AUGUST, 1976, AND THE INCOME OF THE ASST. YR 1969 - 70 C OULD BE ASSESSED BY ISSUING A NOTICE BY 31 ST MARCH, 1978. NOTICE UNDER S. 148 WAS ISSUED ON 23 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 RE COURSE 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 W AS 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 THE 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 WA S NOT TENDERED TO THE ASSESSEE NOR THE SAME WAS REFUSED AT ALL BY THE ASSESSEE. IT IS AN ADMITTED 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 B Y 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 SE RVE THE NOTICE UPON THE ASSESSEE, SINCE THE COMPANY OF THE ASSESSEE WAS CLOSED DUE TO HOLI FESTIVAL 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 SEN T 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 THERE IS NO HESITATION IN HOLDING THAT THERE HAS BEEN NO VALID SERVICE O F NOTICE UNDER S. 148 UPON THE ASSESSEE AS THE SAME WAS NEITHER TENDERED TO THE ASSESSEE OR HIS 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. 22 ITA NOS. 516,517&518/NAG/2014. 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 AFFIXAT ION 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 1 48 WAS ISSUED ON 26 - 03 - 2009. UPON REFUSAL OF THE ASSESSEE TO RECEIVE THE NOTICE, AFFIXTURE 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. T HIS ASPECT HAS BEEN REPEATEDLY AGITATED 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 MEAN S OF SERVICE AS REQUIRED BY SECTION 282. THIS FACT IS EVIDENT FROM THE DATE OF ISSUE OF NOTICE 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 REPORTEDLY THROUGH THE AFFIXTURE ABOUT FEW DAYS BEFORE TIME WAS EXPIRED. THUS IT IS CLEAR 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 ASSE SSEE. IN THE REPORT OF INSPECTOR, NAMES OF TWO WITNESSES ARE REFERRED. THE ADDRESSES OF THE WITNESSES ARE FAR AWAY FROM THE PREMISES OF THE ASSESSEE. THE REPORT OF THE INSPECTOR DOES NOT STATE THAT WITNESSES HAVE IDENTIFIED THE PLACE OR WAS KNOWN TO THEM P ERSONALLY. 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 TH ROUGH THE ORDINARY MEANS FOR SUBSEQUENT YEARS. THIS CLEARLY SHOWS A SCANT 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 CONSPECTUS OF ABOVE FACTUAL SCENARIO AND THE AND CASE LAWS, I AM OF THE CONSIDERED OPINION THAT IN THIS CASE NOTICE DATED 26 - 03 - 2009 CLAIME D TO HAVE BEEN SERVED BY 23 ITA NOS. 516,517&518/NAG/2014. AFFIXTURE IS NOT AT ALL A VALID NOTICE AS MANDATED BY LAW. IN THESE 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 T HE ASSESSMENT ORDER IS VOID AB INITIO. SINCE I HAVE ALREADY QUASHED THE ASSESSMENT FOR LACK OF SERVICE OF NOTICE, ADJUDICATION AND OTHER LIMBS OF LEARNED COUNSELS SUBMISSION ON JURISDICTION AS WELL AS ON MERITS ARE NOW ONLY OF ACADEMIC INTEREST. HENCE I A M NOT ENGAGING INTO THE SAME. 7. SINCE IT IS UNDISPUTED THAT THE FACTS ARE IDENTICAL AND IT IS ALSO NOT THE CASE THAT HONBLE JURISDICTIONAL HIGH COURT HAS REVERSED THE ABOVE DECISION OF THIS TRIBUNAL, FOLLOWING THE PRECEDE N T, WE HOLD THAT IN ABSENCE OF PROPER NOTICE THE ASSESSMENT ORDERS IN THESE CASES ARE VOID ABINITIO. 8. SINCE WE HAVE ALREADY QUASHED THE ASSESSMENT FOR LACK OF SERVICE OF NOTICE, THE ADJUDICATION ON OTHER GROUNDS AND OTHER LIMBS OF LEARNED COUNSELS SUBMISSION O N JURISDICTION AS WELL AS ON MERITS ARE NOW ONLY OF ACADEMIC INTEREST. HENCE WE ARE NOT ENGAGING INTO THE SAME. 9. IN THE RESULT, THESE APPEALS BY THE ASSESSEE STAND ALLOWED AS ABOVE . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF MARCH, 2017. SD/ - SD/ - (RAM LAL NEGI) ( SHA MIM YAHYA) JUDICIAL MEMBER. ACOUNTANT MEMBER. NAGPUR, DATED: 27 TH MARCH, 2017. 24 ITA NOS. 516,517&518/NAG/2014. COPY FORWARDED TO : 1. SMT. NALINI SHYAM MOUNDEKR GOLIBAR CHOWK, NAGPUR. 2. I.T.O., WARD - 4(1), NAGPUR. 3. CIT(APPEALS) - I, NAGPUR. 4. C.I.T. - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.