Sh. Banmali Khemka, Amritsar. V. The Income Tax Officer, Amritsar.

ITA 756/ASR/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8814 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 31-10-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 16-12-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Opportunity of being heard; Borrowed satisfaction; Capital Gains
• 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; 92; 142(1); 234B; 133(6); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE T RIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A. NOS.755 & 756(ASR)/2014 ASSESSMENT YEAR: 2005-06 SH. BANMALI KHEMKA S/O SH. SHRAWAN KUMAR KHEMKA B-68, 2 ND FLOOR, FRIENDS COLONY, (WEST) NEW DELHI. PAN: AGKPK-8929L VS. THE INCOME TAX OFFICER WARD-4(1) AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. K.R.JAIN (ADV.) RESPONDENT BY: SH. CHARAN DAS (DR) DATE OF HEARING: 31.10.2016 DATE OF PRONO UNCEMENT:16.01.2017 ORDER PER N. K. CHOUDHRY (JM): THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE, FEELING AG GRIEVED AGAINST THE ORDERS PASSED BY THE LD. CIT(A) U/S.250(6) OF THE I.T. ACT, FOR THE ASST. YEAR:2005-06. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL I N BOTH APPEALS. ITA NO.755(ASR)/2014 U/S.144 1. THAT THE ORDER OF THE LD. INCOME TAX OFFICER COM PLETING ASSESSMENT UNDER SECTION 144 IS WRONG, ILLEGAL AND AGAINST FACTS AND LIKEWISE LEARNED CIT(A) IS NOT JUSTIFIED WHILE CONFIRMING THE SAME. 2. THAT THE LD. AO HAS ERRED IN LAW AND ON FACTS WH ILE INITIATING PROCEEDINGS U/S 148 AND CIT (A) IS NOT JUSTIFIED IN CONFIRMING THE ASSESSMENT. ITA NOS. 755 & 756(ASR)/2014 ASST. YEAR: 2005-06 2 3. THAT NO PROPER AND VALID SERVICE OF NOTICE U/S 1 48, U/S 142 (1) AND U/S 143 (2) HAS BEEN EFFECTED. THE CIT(A) HAS ERRED IN LAW AND ON FACTS WHILE CONFIRMING THE ASSESSMENT ORDER. 4. THAT CIT (A) HAS NOT APPRECIATED THE FACTS, CIRC UMSTANCES OF THE CASE & SUBMISSIONS MADE AND IS NOT JUSTIFIED IN LAW AND ON FACTS INN DISMISSING THE APPEAL OF THE APPELLANT. 5. THAT IN VIEW OF THE FACTS, CIRCUMSTANCES OF THE CASE, EXPLANATION SUBMITTED, AO IS NOT JUSTIFIED WHILE MAKING AND ADDITION OF RS .25,40,00/- AND CIT(A) HAS ERRED IN LAW ON FACTS WHILE CONFIRMING THE ADDITION . 6. THAT NO REASONABLE OPPORTUNITY OF BEING HEARD WA S GRANTED TO ASSESSEE. ACCORDINGLY IT IS PRAYED THAT ASSESSMENT FRAMED U/S 144 BE QUASHED OR SUCH OTHER RELIEF AS MAY BE PERMISSIBLE MAY KINDLY BE GRANTED. ITA NO.756(ASR)/2014 U/S.271(1)(C) 1. THAT THE ORDER OF THE LD. INCOME TAX OFFICER IMP OSING A PENALTY OF RS.8,75,524/- U/S 271 (1) IS WRONG ILLEGAL AND AG AINST FACTS AND LIKEWISE CIT (A) IS NOT JUSTIFIED WHILE CONFIRMING THE SAME. 2. THAT NO VALID SERVICE OF NOTICE U/S 271 (1)(C) HAS BEEN SERVED. 3. THAT NO REASONABLE OPPORTUNITY OF BEING HEARD WA S GRANTED TO ASSESSEE. 4. THAT LD. AO WHILE IMPOSING THE PENALTY HAS NOT C ONSIDERED THE FACTS OF THE CASE AND PROCEEDED TO IMPOSE THE PENALTY ARBITRARIL Y. THE LD. CIT(A) HAS FURTHER ERRED IN LAW AND ON FACTS WHILE CONFIRMING THE SAME. 5. THAT NO PROPER AND VALID SERVICE OF NOTICE U/S 1 48, U/S 142 (1) AND U/S 143 (2) HAS BEEN EFFECTED. INITIATION AND COMPLETION OF PROCEEDINGS IS BAD IN LAW. THE CIT (A) HAS ERRED IN LAW AND ON FACTS WHILE CON FIRMING THE ASSESSMENT. 6. THAT LD. CIT (A) HAS NOT APPRECIATED THE FACTS T HAT THERE IS NO CONCEALMENT. ACCORDINGLY, IT IS PRAYED THAT PENALTY OF RS.8,75,5 24/- U/S 271 (1) (C) BE QUASHED OR SUCH OTHER RELIEF AS MAY BE PERMISSIBLE MAY KINDLY BE GRANTED. 3. THE BRIEF FACTS OF THE CASE AS NOTED IN THE ASSESSMENT ORDER ARE THAT, ON THE BASIS OF INFORMATION RECEIVED REGARDING INVESTMENT OF RS.25,40,000/- IN PURCHASE OF MUTUAL FUND, NOTICE U/S 14 8 OF THE INCOME TAX ACT WAS ISSUED ON 27.03.2012, AFTER TAKING AP PROVAL FROM THE ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE-IV, AMRITSAR. NOTICE WAS INITIALLY TRIED TO BE SERVED THROUGH PROCESS SE RVER ON ITA NOS. 755 & 756(ASR)/2014 ASST. YEAR: 2005-06 3 27.03.2012. HOWEVER, ON RECEIPT OF REMARK FROM THE PR OCESS SERVER OF NOT ABLE TO SERVE NOTICE ON GIVEN ADDRESS, NOTICE U/S 14 8 WAS SERVED THROUGH DISPATCH NO. 4121 DATED 27.03.2012 (SPEED PO ST). THE ASSESSEE HAS GIVEN ON HIS PAN FORM AS OFFICIAL ADDRESS AS; C/ O AMRITSAR RESOURCE CENTRE, M-4, GREEN AVENUE, AMRITSAR A ND SAME ADDRESS WAS RECEIVED ON DETAILS OF INVESTMENT MADE BY THE ASSESSEE OF RS.25,40,000/-. HOWEVER, NO RETURN OF INCOME WAS FI LED BY THE ASSESSEE WITHIN THE STIPULATED TIME ON THE SAID NOTICE. ACCO RDINGLY, NOTICE U/S 142(1) OF THE INCOME TAX ACT, 1951 WAS ISSUED ON 17.08.2012 FOR 23.08.2012 BY SERVING NOTICES VIDE SPEED POST NO.1879 TO 1883 ON VARIOUS ADDRESSES OF AMRITSAR AND DELHI AND P ARTICULARLY ON THE ADDRESS OF AIR DOCUMENT AVAILABLE ON SYSTEM AS C/O AM RITSAR RESOURCE CENTRE, M-4, GREEN AVENUE, AMRITSAR WHICH WAS THE LAST KNOWN ADDRESS. THIS NOTICE ALSO REMAINED UNATTENDED AND IN VIEW OF SAME AO SERVED THE NOTICE THROUGH AFFIXTURES ON AMRITSAR ADDRESS. 3.1 THAT DESPITE ISSUANCE OF MANY NOTICES AND ALSO OF AFFIX ING OF NOTICE AT THE LAST KNOWN OF ADDRESS OF THE ASSESSEE, NEIT HER THE ASSESSEE ATTENDED THE OFFICE IN PERSON OR THROUGH HIS AR N OR SUBMITTED ANY WRITTEN EXPLANATION QUA INVESTMENT IN PURCHASE OF MUTUAL FUND VALUING RS.25,40,000/- DURING THE YEAR UNDER CONSIDERA TION. THEREFORE, THE ASSESSING OFFICER HELD THAT INVESTMENT MAD E BY ASSESSEE OUT OF HIS UNDISCLOSED SOURCES, FOR WHICH THE ASSESSEE HA S NO ITA NOS. 755 & 756(ASR)/2014 ASST. YEAR: 2005-06 4 EXPLANATION AND FINALLY THE ASSESSING OFFICER FINDING NO ALTERNATIVE, COMPLETED THE ASSESSMENT EX-PARTE U/S 144 OF I.T. ACT, 1 961 AND COMPUTED THE TAXABLE INCOME OF THE ASSESSEE AS UNDER: INCOME AS PER RETURN FILED BY THE ASSESSEE RS.1,81,920/- ADD BACK: UNEXPLAINED INVESTMENT IN PURCHASE OF MUTUAL FUND VALUING RS.25,40,000./- AS APPEARING IN THE AIR INFORMATION AVAILABLE ON SYSTEM AND DULY CONFRONTED TO THE ASSESSEE MENTIONED ABOVE. RS:25,40,000/- TOTAL INCOME RS.27,21,920/- ASSESSED: ISSUE REQUISITE DOCUMENTS AND CHARGE INTEREST U/S 234A, 234B & 234C OF THE INCOME TAX ACT, 1961. THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS SEPARATELY AND ALSO IMPOSED A PENALTY OF RS.8,75,524/- U/S 271(1) (C). 4. FEELING AGGRIEVED BY THE ORDERS PASSED BY THE ASSESSING OF FICER, THE ASSESSEE PREFERRED THE APPEALS BEFORE THE LD. CIT(A) , WHO ALSO CONFIRMED THE ORDERS PASSED BY THE ASSESSING OFFICER BY HOLD ING AS UNDER: IT IS ASTONISHING TO SEE THAT ASSESSEE HAS NOT ARG UED ANYTHING ON MERIT AND HAS NOT SUBMITTED ANY EVIDENCE/DOCUMENTS TO EXPLAIN SOURCE OF INVESTMENT OF RS.25,40,000/- IN MUTUAL FUND. IN THE WRITTEN SUBMISSION SUBMITTED BY THE ASSESSEE AND DURING ARGUMENT IN AP PELLATE PROCEEDINGS, THE COUNSEL OF ASSESSEE HAS NOT SUBMITTED/ARGUED ANY ME RIT ON THE ADDITION OF RS.25,40,000/-. IN VIEW OF ABOVE, ASSESSEE WAS GIVE N ONE MORE OPPORTUNITY VIDE ORDER SHEET NOTING OF THIS OFFICE DATED 12.09. 2014 TO SUBMIT EXPLANATION/EVIDENCE ON QUANTUM ADDITION OR MERIT O F CASE OR EXPLAINING SOURCE OF INVESTMENT. HE WAS FURTHER DIRECTED TO SU BMIT EVIDENCES AND ITA NOS. 755 & 756(ASR)/2014 ASST. YEAR: 2005-06 5 EXPLANATION. HOWEVER COUNSEL OF THE ASSESSEE ATTEND ED ON THE SCHEDULED DATE OF HEARING AND SUBMITTED THAT ASSESSEE HAS STATED A S RECORDS ARE VERY OLD AND IN VIEW OF SAME NO DETAILS ARE AVAILABLE WITH H IM AND HE HAD NOT SUBMITTED ANY EXPLANATION ON SOURCE OF INVESTMENT O F RS. 25,40,000/-. THUS IT CAN BE SEEN THAT ASSESSEE IS USING PLOY OF NONE SERVICE OF NOTICE U/S 148 TO GET WAY WITH QUANTUM ADDITION OF RS.25,40,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT. HON'BLE COURTS HAVE FROWNED ON SUCH TAC TICS APPLIED BY THE ASSESSEE IN VARIOUS JUDGMENT AND HAS HELD THAT ASSE SSEE SHOULD NOT BE BENEFITED BY DEFAULT TO ESCAPE HIS LIABILITY AND HA S DIRECTED TO ASSESSING AUTHORITIES TO CARRY OUT ASSESSMENT PROCEEDING A FR ESH FROM THE STAGE OF ISSUANCE OF NOTICE TO THE ASSESSED. ONE OF THE JUDG MENT OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT, JALANDHAR-II VS. LAKHBIR SINGH IN ITA NO.253 OF 2012 DATED 21.02.2014 HAS SAME VIEW, WHIC H IS REPRODUCED AS UNDER:- THERE IS FORCE IN CONTENTION OF THE REVENUE THAT ON CE SERVICE OF NOTICE UNDER SECTION 148, 143(2) AND 142(1) OF THE ACT WAS HELD TO BE BAD OBSERVING THAT THE ASSESSEE WAS NO MORE RESIDING AT THE LAST KNOWN ADDRESS AND WAS ACCESSIBLE ONLY THROUGH HIS ATTORNEY JAMAIL SINGH. IT WAS INCUMBENT ON THE TRIBUNAL NOT TO QUASH THE WHOLE PROCEEDINGS AS IT AMOUNTED TO LEAVING THE ASSESSEE GO SCOT-FREE, THOUGH HE IS LIABLE TO P AY TAX ON THE CAPITAL GAINS. IT IS NOWHERE DENIED THAT COMPENSATION FOR COMPULSO RY ACQUISITION OF THE LAND WAS RECEIVED BY THE ASSESSEE. AS SUCH, HE CANNOT DE NY HIS LIABILITY TO PAY LONG TERM CAPITAL GAIN TAX. MERELY BECAUSE THERE WA S SOME ERROR IN SERVICE OF NOTICES ON THE ASSESSEE, STATUTORY LIABILITY OF THE ASSESSEE TO PAY TAX ON CAPITAL GAIN WAS NOT OVER. BECAUSE OF PROCEDURAL LA PSES, THE ASSESSEE SHOULD NOT BE A GAINER AND THAT TOO BY DEFAULT TO ESCAPE H IS LIABILITY. SQUALLY, ORDER OF THE TRIBUNAL ALSO LACKS MERIT. LOOKING FROM ANOTHER ANGLE, DEFAULT MADE BY THE REV ENUE IN COMPLIANCE WITH THE PROCEDURE IN PLACE FOR SERVICE OF THE ASSESSEE IPSO-FACTO, IS NOT A CIRCUMSTANCE TO LET THE ASSESSEE GO SCOT F REE FROM THE TAXATION REGIME WHEN HIS LIABILITY OF PAYMENT OF CAPITAL GAI N TAX IS NOT QUESTIONED. WHEN THE PROCEEDINGS HAD BEEN STARTED BY THE INCOME TAX OFFICER, KAPURTHALA-I, KAPURTHALA BUT THE SAME WERE FOUND TO BE DEFECTIVE ON TECHNICAL AND PROCEDURAL GROUNDS OF SERVICE OF THE ASSESSEE, LIABILITY OF PAYMENT AND CAPITAL GAINS TAX WHICH HAD ACCRUED AGA INST THE ASSESSEE, WOULD NOT BE LOST SIGHT OF AND FORGOTTEN, AS HAS BEEN PRO JECTED BY THE ASSESSEE. IT IS, THUS ORDERED THAT THE INCOME TAX OFFICER, KA PURTHALA-I, KAPURTHALA WOULD START THE .PROCEEDINGS AFRESH AFTE R SEEKING APPEARANCE OF THE ASSESSEE EITHER IN PERSON OR THROUGH HIS POWER OF ATTORNEY AND WOULD DECIDE THE MATTER AFRESH FROM THE STAGE OF ISSUANCE OF NOTICE TO THE ASSESSEE. IN THE PRESENT CASE NOTICE U/S 148 HAS BEEN SERVED ON THE OFFICE ADDRESS OF THE ASSESSEE AND VARIOUS NOTICES U/S 142 (1) HAVE ALSO BEEN SERVED ON THE ASSESSEE THROUGH SPEED POST AND LATER BY AFF IXTURES AS WELL. IN VIEW OF ABOVE, I DO NOT FIND ANY MISTAKE IN THE ORDER OF TH E AO IN COMPLETING ASSESSMENT PROCEEDING U/S 144 OF THE INCOME TAX ACT , 1961 AND MAKING ADDITION OF RS.25,40,000/- AS UNEXPLAINED INVESTMEN T. IN VIEW OF ABOVE DISCUSSION, APPEAL OF THE ASSESSEE IS DISMISSED ON ALL THE 11 GROUNDS OF THE APPEAL. ITA NOS. 755 & 756(ASR)/2014 ASST. YEAR: 2005-06 6 THE LD. CIT(A) ALSO DISMISSED THE APPEAL OF THE ASSESSEE QU A IMPOSITION OF PENALTY AS WELL. 5. FEELING AGGRIEVED BY THE SAID ORDERS PASSED BY THE LD. CIT(A), THE ASSESSEE PREFERRED THE INSTANT APPEALS ON THE GROUND S MENTIONED IN PARA NO.2 OF THIS ORDER. 6. AT THE OUTSET, THE LD. AR CHALLENGED THE SERVICE OF NO TICE WHICH ISSUED BY THE ASSESSING OFFICER, ON THE PRETEXT THAT THE N OTICE WAS NEVER BEEN SERVED UPON ASSESSEE BECAUSE THE SAME WAS NOT SENT TO THE PROPER ADDRESS OF THE ASSESSEE AS RECORDED IN THE INCOM E-TAX RETURNS FORM CONCERNING YEARS A.Y. 2004-05 AND 2005-06 . FURTHER IT WAS SUBMITTED THAT THE AO ISSUED NOTICE U/S 133(6) DT.15.03.2012 ASKING DETAILS ABOUT THE INCOME-TAX RET URNS AND ASSESSMENT OF ASSESSEE, HOWEVER, THE SAID NOTICE WAS RETURNED BY THE PROCESS SERVER WITH THE REMARKS IT IS SUBMITTED THAT ON THE AFORESAID ADDRESS WRITTEN ON THE NOTICE, THE NAMED ASSESSEE IS NOT RE SIDING, THEREFORE, THE NOTICE COULD NOT BE SERVED THEREAFTER , THE ASSESSING OFFICER AGAIN AND AGAIN TRIED TO SERVE NOTICE TO THE A SSESSEE, HOWEVER, COULD NOT GET SUCCESS ON THE REASONS THAT THE ASSESSEE WAS NOT RESIDING AT THE ADDRESS MENTIONED ON THE NOTICES AND FIN ALLY THE NOTICE WAS DIRECTED TO BE SERVED BY AFFIXTURE THROUGH PROCESS SER VER WHO ACCOMPANIED BY AN INSPECTOR, AFFIXED THE SAID ORDER ON T HE PREMISES MENTIONED ON THE NOTICE. ITA NOS. 755 & 756(ASR)/2014 ASST. YEAR: 2005-06 7 FURTHER IT WAS SUBMITTED BY THE LD. AR THAT ALL THE NOTICES HAVE BEEN ISSUED ON THE AMRITSAR ADDRESS ONLY AND IT IS RESPECT IVELY SUBMITTED THAT THE ASSESSEE HAS FILED INCOME-TAX RETURNS FO R THE ASST. YEAR:2004-05 GIVING THE PAN NO. AGKPK8929L AND ADDR ESS WAS SHOWN AS B-48, NEW FRIENDS COLONY, NEW DELHI AND THER EAFTER, THE ASSESSEE HAS AGAIN FILED INCOME TAX RETURN ON 17 TH MARCH, 2006 FOR THE ASST. YEAR:2005-06 (YEAR UNDER APPEAL) GIVING COMP LETE DETAILS SUCH AS PAN NO. AGKPK8929L AND ADDRESS AS B-48, NEW FRIEN DS COLONY, NEW DELHI. HOWEVER, THE AO ON THE BASIS OF AIR INFORMATION RECORDED THE REASONS TO BELIEVE FOR REOPENING THE A SSESSMENT FOR THE ASST. YEAR:2005-06. THE LD. AR FURTHER SUBMITTED THAT ISSUANCE OF NOTICES U/ S 148 IS ILLEGAL, INVALID AND VOID AB INITIO AS THERE WAS NO SATISFACTION OF THE AO WHILE REOPENING THE CASE. THE CASE HAS BEEN REOPENED ON THE BASIS OF BORROWED SATISFACTION WHICH IS NOT PERMISSIBLE UNDER THE LAW. AS SUCH, THE ISSUANCE OF NOTICE IS ILLEGAL, INVALID AND VOID AB INITIO AND THE SAME IS LIABLE TO BE QUASHED. THE LD. AR PLACED RELIANCE ON THE DECISION OF HONBLE ITAT AMRITSAR BENCH IN THE CASE OF SH. KARANVIR VERMA VS. ITO, AMRITSAR, IN ITA NO.352(ASR)/2014 AND ALSO RELIED UPON ANOTHER CASE TITLED AS PCIT VS. G& G PHARMA INDIA LTD., 384 ITR 147. ITA NOS. 755 & 756(ASR)/2014 ASST. YEAR: 2005-06 8 IT WAS FURTHER SUBMITTED BY THE LD. AR THAT BECAUSE THE SERVICE OF NOTICE U/S 148 HAS BEEN ISSUED ON THE WRONG ADDRESS THO UGH THE INCOMETAX RETURNS REFLECTS A CORRECT ADDRESS AND THE ASSESSIN G OFFICER NEVER MADE ANY ATTEMPT TO SERVE THE NOTICE ON THE ADDRESS MENTIONED IN INCOME TAX RETURN OF THE RELEVANT AS W ELL AS PREVIOUS YEAR, THEREFORE, NEITHER NOTICE U/S 148 HAS BEEN ISSUED PROPERLY NOR VALID SERVICE OF NOTICE WAS EFFECTED BECAUSE EVEN OTHERWISE THE AFFIXTURE OF NOTICE WAS NOT IN ACCORDANCE WITH LEGAL PR OVISIONS AS THE NOTICE HAS NOT BEEN NOT SENT ON CORRECT ADDRESS, EXACT PLA CE HAS NOT BEEN IDENTIFIED, NO NOTICE HAS BEEN PUT UP ON NOTICE B OARD, NO PUBLIC OR IMPARTIAL WITNESSES HAVE BEEN JOINED BEFORE AFFIXI NG THE NOTICE, THEREFORE, ON THE AFORESAID SUBMISSIONS AND FACTS AND CIR CUMSTANCES OF THE CASE AS WELL AS RELEVANT RECORDS, THE ASSESSMENT ORDER AS WELL AS PENALTY ORDER PASSED BY THE ASSESSING OFFICER ARE LIABLE T O BE QUASHED. 7 . ON THE CONTRARY, IT WAS ARGUED BY THE LD. DR THAT THE ASSESSING OFFICER HAD EFFECTUALLY SERVED THE NOTICE UPON THE LOCA L ADDRESS OF THE ASSESSEE AS RECORDED IN AIR INFORMATION. IT WAS FURTHER SUB MITTED BY THE LD. DR THAT THE ASSESSEE FILED AN AFFIDAVIT BEFORE THE APPELLATE PROCEEDINGS AND STATED THAT THE ADDRESS M-4, GREEN AVEN UE, AMRITSAR WHEREAS THE NOTICE WAS SENT BELONGS TO HIS ELDER BROTHER SH. NILNALI KHEMKA AND IT IS A FURTHER FACT THAT ASSESSEE HAS USED SAM E ADDRESS DURING THE FINANCIAL YEAR PERTAINING TO CURRENT ASSESSMEN T YEARS FOR ITA NOS. 755 & 756(ASR)/2014 ASST. YEAR: 2005-06 9 INVESTMENT IN MUTUAL FUNDS OF RS.25,40,000/-. IT IS CLE AR FROM ABOVE THAT BY ADOPTING THE MODUS OPERANDI THE ASSESSEE HAS DELIBERATELY AVOIDED SERVICE NOTICE UPON HIM, THEREFORE, THE NOTICE CANNOT BE FAULTED. 8 . WE HAVE GONE THROUGH THE FACTS AND CIRCUMSTANCES O F THE CASE AS WELL AS RIVAL SUBMISSIONS OF THE PARTIES AND DOCUMENTS ON RECORD AS IT REFLECTS FROM THE ITR FORMS PERTAINING TO ASSESSMENT Y EAR 2004-05 & 2005-06, THE ASSESSEE HAD SHOWN HIS ADDRESS AS B-48, FRIEN DS COLONY, NEW DELHI AND ALSO SHOWN SAME PAN NO.AGKPK8929L IN BOT H OF THE INCOME TAX RETURNS. AS IN THE INSTANT CASE, WE REALIZED T HAT NOT A SINGLE EFFORT HAS BEEN MADE TO SERVE UPON THE ASSESSEE ON THE ADDRESS MENTIONED IN INCOME-TAX RETURN AND EVEN OTHERWISE NON E OF THE NOTICES HAVE BEEN PROPERLY SERVED UPON THE ASSESSEE AND SPE CIALLY AFFIXTURE NOTICE HAVE ALSO NOT BEEN AFFIXED PROPERLY BECAUSE THE EXACT LOCATION OF THE PREMISES NOT BEEN DETERMINED/ DEMONSTRA TED. NO PUBLIC WITNESSES HAVE BEEN JOINED BY THE NOTICE SERVER O R THE CONCERNED OFFICER ACCOMPANYING AND EVEN OTHERWISE THERE I S NO EXPLANATION QUA NON-JOINING OF PUBLIC WITNESSES WHILE A FFIXING THE NOTICE ON THE ADDRESS OF THE ASSESSEE. THE CO-ORDINATION BE NCH OF THIS TRIBUNAL WHILE DEALING THE SAME FACTUAL POSITION CONSIDE RED THE ASPECTS AND WAS PLEASED TO HELD AS UNDER: 7. ON CONSIDERATION OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT THE REVENUE DEPARTMENT HAS FAILED TO SERVE NOTICE UNDER SECTION 148 UPON THE ITA NOS. 755 & 756(ASR)/2014 ASST. YEAR: 2005-06 10 ASSESSEE. IT IS MANDATORY UNDER SECTION 148 THAT BE FORE MAKING REASSESSMENT NOTICE UNDER SECTION 147 SHALL BE SERVED UPON THE A SSESSEE. IT IS CONDITION PRECEDENT FOR THE A.O BEFORE ASSUMING JURISDICTION TO PROCEED FOR REASSESSMENT THAT NOTICE HAS BEEN SERVED UPON THE A SSESSEE. THE CIT(A) WAS JUSTIFIED IN THIS CASE BY OBSERVING THAT IT IS NOT HUMANLY POSSIBLE TO SERVE THE NOTICE THROUGH AFFIXTURE ON THE SAME DAY AS EARLIER ON THE SAME DAY NOTICE WAS ISSUED AND NOTICE SERVER VISITED BARETTA AND PR EPARED A REPORT OF REFUSAL. THE DISTANCE BETWEEN TWO PLACES WOULD SUPPORT THE F INDINGS OF THE CIT(A) THAT IN FACT NO NOTICE HAS BEEN ACTUALLY SENT TO BA RETTA FOR THE PURPOSE OF SERVICE. THE RECORDS PRODUCED BEFORE US SHOW THAT T HOUGH THE INSPECTOR AND THE NOTICE SERVER MENTIONED IN THE REPORT THAT THE SERVICE THROUGH AFFIXTURE IS MADE IN THE PRESENCE OF LOCAL PERSONS BUT THERE ARE NO SIGNATURES OF THE LOCAL PERSONS AS A WITNESS TO SUPPORT THE REPORT OF THE I NSPECTOR AND NOTICE SERVER. IT IS HELD BY THE HONBLE SUPREME COURT IN THE MATT ER OF R.N. GHOSH, 82 ITR, 888 THAT SERVICE OF NOTICE BY AFFIXTURE COULD BE MA DE IN ACCORDANCE WITH ORDER 5 READ WITH RULE 17 OF THE C.P.C. SIMILAR VIE W IS TAKEN IN 118 ITR, 454 BY THE CALCUTTA HIGH COURT AND IN 110 ITR, 406 BY T HE KERALA HIGH COURI IN WHICH NO ATTEMPT IS MADE TO SERVE ASSESSEE PERSONAL LY. IN THE ABSENCE OF ANY WITNESS TO THE AFFIXTURE THE REPORT OF THE AFFIXTUR E CANNOT BE ACCEPTED. THE CIT(A) WAS, THEREFORE, JUSTIFIED IN CANCELING THE A SSESSMENT ORDER AS NO NOTICE UNDER SECTION 148 HAS BEEN SERVED UPON THE A SSESSEE. WE MAY ALSO MENTION THAT THE LIQUOR LICENSES ARE GENERALLY GIVE N FOR FINANCIAL YEAR I.E. FOR ONE YEAR AND THEREAFTER EVERY YEAR AUCTIONS ARE MAD E BY THE STATE GOVT., FOR THE PURPOSE OF ALLOTMENT OF LIQUOR SHOPS. THE ASSES SMENT YEAR IS 1990-91 AND SERVICE THROUGH AFFIXTURE IS ALLEGEDLY MADE ON 27-3 -1997, THEREFORE, IT IS PROBABLE THAT THE ASSESSEE MIGHT NOT HAVE ANY SHOP IN QUESTION WHERE ALLEGED SERVICE THROUGH AFFIXTURE IS MADE. NO MATER IAL IS PRODUCED BEFORE US TO PROVE THAT THE SHOP IN QUESTION WAS OWNED BY THE ASSESSEE. THEREFORE, THERE IS NO QUESTION OF SERVICE AT THAT ADDRESS THR OUGH AFFIXTURE. CONSIDERING THESE FACTS WE DO NOT FIND ANY INFIRMITY IN THE ORD ER OF THE CIT(A). WE DISMISS THE APPEAL OF THE REVENUE. CONSIDERING THE FACTS OF THE INSTANT CASE AS WELL AS RESPECT FULLY FOLLOWING THE ORDER PASSED BY THE CO-ORDINATION BENCH, AS IN THE INSTANT CASE, THE ASSESSING OFFICER NEVER TRIED TO SERVE NO TICE UPON THE ITA NOS. 755 & 756(ASR)/2014 ASST. YEAR: 2005-06 11 ASSESSEE, IN PROPER, LEGAL AND EFFECTIVE MANNER AND EVEN OTHERWISE AFFIXTURE OF THE NOTICE ALSO SUFFERER MAY DOUBTS. WE AL SO FAILED TO UNDERSTAND AS WHAT PREVENTED THE REVENUE DEPARTMENT T O ISSUE NOTICE UPON THE ADDRESS OF ASSESSEE AT DELHI AS SHOWN IN ITR FORMS RELEVANT TO ASST. YEAR AS WELL AS PREVIOUS YEAR, THEREFO RE, WE DO NOT FIND ANY HESITATION TO QUASH THE NOTICE AS WELL AS ASSESSME NT ORDER AND CONSEQUENTLY PENALTY ORDER PASSED BY THE ASSESSING OFFI CER. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.0 1. 2017. SD/- SD /- (T. S. KAPOOR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:16.01.2017. /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