The Income Tax Officer, Phagwara V. Sh. Bhushan Lal Raina, Phagwara

ITA 81/ASR/2013

• Counselvise Citation: 8120914 RSA 2013
• Duration Of Justice: 1 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 05-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN
• Keywords: Invalid notice; Period of limitation; Assessment record
• Section: 54F; 68; 148; 54; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 06 (ASR)/2013 ASSESSMENT YEAR: 2008-09 PAN: AAOPR5671G BHUSHAN LAL RAINA , VS. INCOME TAX OFFICER, C/O- SH. DHARAM PAUL BANSAL, WARD I, PHAGWARA M/S PARMOD TRADING CO., LOHA MANDI, PHAGWARA (APPELLANT) (RESPONDENT) AND I.T.A. NO. 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 PAN: AAOPR5671G INCOME TAX OFFICER, VS . SH. BHUSHAN LAL RAINA WARD I, PHAGWARA C-17, THAPER COLONY, PHAGWARA (APPELLANT) (RESPONDENT) ASSESSEE BY: SH. J.S. BHASIN, ADV. DEPARTMENT BY: SH. TARSEM LAL, DR DATE OF HEARING:10.09.2014 DATE OF PRONOUNCEMENT: 11.09.2014 ORDER PER A.D. JAIN, J.M. 1. THESE ARE CROSS-APPEALS FOR THE ASSESSMENT YEAR 2 008-09 AGAINST THE ORDER DATED 06.11.2012 PASSED BY LEARNED CIT(A) , JALANDHAR. ITA 2 I.T.A. NOS. 06 & 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 NO. 06(ASR)/2013 IS ASSESSEES APPEAL, WHEREAS ITA NO. 81(ASR)/2013 IS DEPARTMENTS APPEAL. 2. THE ASSESSEE HAS TAKEN FOLLOWING EFFECTIVE GROUND S OF APPEAL: I. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING THAT THE SERVICE OF STATUTORY NOTICE U/S 143(2) BY WAY OF AFFIXTURE, WAS VALID. II. THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN SUMMAR ILY REJECTING ALL THE CONTENTIONS RAISED BY ASSESSEE, DENYING SER VICE OF NOTICE U/S 143(2), DULY SUPPORTED BY SWORN AFFIDAVIT. III. THAT HAVING ACCEPTED ALL THE CONTENTIONS OF ASSESSE E, DISPUTING QUANTUM ADDITIONS, THE LEARNED CIT(A), OVERRULING T HE OBJECTIONS TAKEN BY LEARNED A.O. IN REMAND REPORT OUGHT TO HAV E ALLOWED THE ASSESSEES CLAIM MADE U/S 54F, WHEN EVEN THE A.O. H AD CONCEDED TO THIS CLAIM. IV. THAT WHEN ALL THE FACTS WITH MATERIAL EVIDENCE RELE VANT TO CLAIM EXEMPTION U/S 54F WERE DILATED AND ADMITTED IN APPE LLATE PROCEEDINGS AFTER CONFRONTING THE SAME TO A.O., THE LEARNED CIT(A) SHOULD NOT HAVE STILL DENIED THE SAME CLAIM ON A ME RE TECHNICALITY OF NON-RAISING OF A SPECIFIC GROUND THEREFOR. V. THAT APPRECIATING THE FACTS AND CIRCUMSTANCES OF TH E CASE, AND THE EVIDENCE ALREADY PLACED IN APPELLATE PROCEEDINGS, T HE ASSESSEES CLAIM U/S 54 IS SOUGHT TO BE ALLOWED. VI. THAT CHARGING OF INTEREST U/S 234 B HAS BEEN WRONGL Y UPHELD. 3. THE DEPARTMENT HAS TAKEN FOLLOWING EFFECTIVE GRO UNDS OF APPEAL: I. ACCEPTING THE CONTENTION OF THE ASSESSEE THAT IT HA S WITHDRAWN CASH FROM J&K BANK, PHAGWARA FOR DEPOSITING IT INTO PUNJ AB NATIONAL BANK, THEN ON NEXT DAY WITHDRAWN CASH FROM PUNJAB N ATIONAL BANK AND DEPOSITED IT INTO THE J&K BANK. CONTENTION OF THE ASSESSEE IS AGAINST THE HUMAN PROBABILITIES. II. ACCEPTING THE CASH FLOW STATEMENT PREPARED AND FURN ISHED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS, WHICH HA S NO BASES AND PREPARED JUST AS PER THE SUITABILITY OF THE ASSESSE E. 3 I.T.A. NOS. 06 & 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 4. THE ASSESSEE IN ITS APPEAL HAS RAISED, INTER ALI A, VIDE GROUND NO.1, THE ISSUE OF VALIDITY OF SUBSTITUTED SERVICE OF NOTICE UNDER SECTION 143(2) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT). THIS BEING A JURISDICTIONAL ISSUE GOING TO THE ROOT OF THE MATTE R, IT NEEDS TO BE ADDRESSED. 5. THE LEARNED CIT(A) HAS MADE THE FOLLOWING OBSERV ATIONS IN THIS REGARD [PARA 11, AT PAGES 27 & 28 OF CIT(A)S ORDER ]: 11. THE FIRST THREE GROUNDS (GROUND 1 TO 3) RELAT ES TO THE ALLEGED NON-SERVICE OF THE NOTICE. THE MAIN GROUSE OF ASSES SEE IS THAT NO EFFORTS WERE MADE BY THE A.O. TO LOCATE THE ADDRESS OF ASSE SSEE FOR THE PURPOSE OF SERVICE OF NOTICE. ELABORATE ARGUMENTS TO THIS E FFECT ARE MADE BY THE LEARNED COUNSEL OF ASSESSEE IN THE WRITTEN SUBMISSI ON AS FILED. AS PER THE ADMITTED FACT IN ASSESSEES SUBMISSIONS THAT NOTICE UNDER SECTION 143(2) OF IT ACT, SHOULD HAVE BEEN SERVED BEFORE 30.09.200 9, IT IS SEEN THAT THE NOTICE WAS SENT ON 04.09.2009, WHICH WAS SENT ON 18 .09.2009 THROUGH SPEED POST AND ANOTHER NOTICE DATED 14.09.2009 WAS AFFIXED AT THE LAST KNOWN ADDRESS OF ASSESSEE ON 23.09.2009. THERE IS C LEAR NOTING ON THE NOTICES THAT THE ASSESSEE HAD RETIRED FROM SERVICE AND LEFT PHAGWARA WITHOUT FORWARDING HIS ADDRESS AND WHICH COULD NOT BE TRACED. I DONT FIND ANY CONFUSION AS TO THE DATES OF EITHER SENDIN G THE NOTICE OR AFFIXING THEM IN THE ABOVE CIRCUMSTANCES. ON THE ONE HAND TH E ASSESSEE CONTENDS THAT THE DEPARTMENT DID NOT TRY TO LOCATE THE ADDRE SS AND AFFIXED THE NOTICE WHEN SERVICE THROUGH SPEED POST WAS FUTILE, AT THE OTHER HAND HE LAMENTS THAT WHY WERE NOTICES NOT SENT THROUGH SPEE D POST? IN ANY CASE ANY LATER NOTICES DOESNT AFFECT THE TIME LIMITATI ON. IN VIEW OF THE ABOVE, I HOLD THAT AFTER DUE DILIGENCE THE A.O. HAD TO RESO RT TO SERVICE OF NOTICE BY AFFIXTURE AND IN VIEW OF THIS THE SERVICE IS TO BE TREATED AS VALID. IT IS ALSO TO MENTION THAT THE ASSESSMENT ORDER UNDER SEC TION 144 OF IT ACT ALONGWITH DEMAND NOTICE WERE ALSO SENT THROUGH SPEE D POST WHICH WAS DULY RECEIVED BY ASSESSEE REDIRECTED BY SOMEONE AT HIS NEW ADDRESS. THE SERVICE OF NOTICE IS TREATED TO BE VALID, IN VIEW O F THE ABOVE. 4 I.T.A. NOS. 06 & 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 6. AS AVAILABLE FROM THE IMPUGNED ORDER ITSELF, TH E ASSESSEE RAISED THE FOLLOWING SUBMISSIONS BEFORE TH E LEARNED CIT(A) [RELEVANT PORTION AT PAGE 3, PARA 4 TO PAGE 5 (END OF THE RUNNING PARAGRAPH) AND AT PAGE 8, PARA 1.3 TO P AGE 11, PARA 1.8 (TOP OF THE PAGE): THAT THE APPELLANT HEREIN IS AN EX-EMPLOYEE OF M/ S JCT LIMITED, PHAGWARA WHEREFROM HE RETIRED, AS MANAGER PRINTING AFTER PUTTING UP ABOUT 36 YEARS OF SERVIC E. TILL HIS SUPERANNUATION FROM SERVICE ON 30.04.2009, HE HAD B EEN PUTTING UP AT THE OFFICIAL ACCOMMODATION PROVIDED B Y THE EMPLOYER AT PHAGWARA, AND THE SAME ADDRESS APPEARED IN THE INCOME TAX RETURNS FILED TILL RETIREMENT. HOWEVER, HIS INCOME FROM PENSION REMAINED WELL BELOW THE LIMIT LIABLE T O TAX, FURTHER FILING OF RETURNS WAS DISCONTINUED. UNAWARE OF ANY PROCEEDINGS INITIATED BY THE INCOME TAX DEPARTMENT AGAINST HIM, HE WAS STUNNED TO HAVE RECEIVED THE ORDER UNDE R APPEAL, BY SPEED POST, ON 05.01.2011, REDIRECTED AT HIS PRE SENT ADDRESS, THEREBY ASSESSING THE INCOME EX PARTE, AT AN EXORBITANT FIGURE OF RS. 45,11,828/-, AGAINST RETUR NED INCOME OF RS. 1,97,690/-. HIGHLY AGGRIEVED, AND ON BEING S O ADVISED, THE PRESENT APPEAL HAD TO BE PREFERRED TO DISPUTE T HE ADDITIONS ARBITRARILY MADE. NOW THAT THE APPEAL HAS BEEN FIXE D FOR HEARING, THE HUMBLE ASSESSEE, SEEKS YOUR HONOURS K IND INDULGENCE, TO BRING TO A NAUGHT THE ORDER UNDER AP PEAL, APPRECIATING THE FACTS, THE EVIDENCE AND THE SUBMIS SIONS, AS ARE MADE HEREINBELOW: 1. AT THE VERY OUTSET, ASSESSEE DISPUTES THE VALI DITY OF THE ORDER UNDER APPEAL, FOR WANT OF SERVICE OF THE STAT UTORY NOTICE U/S 143(2) OF HIM. RETURN HAVING BEEN FILED ON 28.0 7.2008, NOTICE U/S 143(2) OUGHT TO HAVE BEEN SERVED ON ASSE SSEE ON OR BEFORE 30.09.2009. IN THE BODY OF ORDER, THE LEARNE D AO CLAIMS THAT NOTICE U/S. 143(2) WAS ISSUED ON 04.09.2009 A ND SERVED UPON THE ASSESSEE. INTERESTINGLY, WHEN THE ORDER HAS 5 I.T.A. NOS. 06 & 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 BEEN PASSED EX-PARTE, THE LEASE EXPECTED OF THE LEA RNED AO WAS TO EXPRESSLY MENTIONED IN THE BODY OF ORDER, TH E MODE AND MANNER OF SERVICE, TO DISPEL ANY DOUBTS ON THE VALI DITY OF SERVICE. SHE HAS CHOSEN TO REMAIN SILENT ON THIS IM PORTANT ASPECT OF THE MATTER. THIS ITSELF LEADS CREDENCE TO ASSESSEES CLAIM THAT NO SUCH NOTICE WAS EVER SERVED ON ASSESS EE. HOWEVER, ON INSPECTION OF ASSESSMENT RECORD, AND ON OBTAINING A COPY OF THE THIS NOTICE, (COPY APPENDED AT PG. 73 FOR KIND PERUSAL), IT TRANSPIRED THAT THE NOTICE SE RVER AFTER CHECKING AT THE GIVEN ADDRESS, REPORTED THAT SERVIC E COULD NOT BE DONE AS THE ASSESSEE HAD SINCE LEFT THE PLACE AF TER RETIREMENT WITHOUT LEAVING HIS FURTHER ADDRESS. THI S REPORT OF THE NOTICE SERVER SPEAKS FOR ITSELF THAT THE NOTICE WAS NOT SERVED. HOWEVER INSPECTION OF FILE ALSO REVEALED TW O MORE FEATURES WORTHY OF DISCUSSION. THERE IS ONE AFFIXTU RE ORDER DATED 14.09.2009 PASSED BY THE LEARNED ITO FOR SERV ICE OF NOTICE BY AFFIXTURE ON THE SAME VERY ADDRESS. THIS AFFIXTURE ORDER BEARS SIGNATURE OF TWO PERSONS. THE NAMES AND ADDRESSES OF BOTH THE PERSONS ARE NOT MENTIONED. ON WHO APPEARS TO HAVE PUT UP AS A WITNESS HAS SIGNED ON 2 3.09.2009. THE OTHER PERSON HAS NOT MENTIONED ANY DATE. THUS, IT IS NOT CLEAR WHETHER THE AFFIXTURE WAS MADE ON 14.09.2009 OR ON 23.09.2009 OR SOME OTHER DATE. THE WHEREABOUTS OF T HE PERSONS MAKING/WITNESSING THE AFFIXTURE, SO AS TO M ADE OUT THEIR IDENTITY, ARE NOT CLEAR. SUCH INFIRMITIES IN THE AFFIXTURE ORDER, DO NOT GO WELL WITH THE STRICT PROVISIONS MA NDATING SERVICE BY MODE OF AFFIXTURE. THIS APART, A POSTAL RECEIPT HAS BEEN FOUND APPEARING IN ASSESSMENT FILE, PURPORTED TO BE EVIDENCE OF MAILING OF THIS NOTICE BY SPEED POST ON 18.09.2009 ON THE SAME VERY ADDRESS. THERE IS NO ACKNOWLEDGEM ENT DUE FOUND AVAILABLE ON RECORD. THERE IS NO OTHER EVIDEN CE FOUND ON RECORD SHOWING ACTUAL SERVICE OF NOTICE ON ASSES SEE. 1.1 IMPORTANTLY, IT IS NOT DISCERNIBLE FROM RECOR D, IF ANY EFFORTS WERE MADE TO LOCATE THE PRESENT ADDRESS OF THE ASSESSEE, AFTER IT WAS FIRST REPORTED BY THE NOTICE SERVER THAT THE ASSESSEE, AFTER RETIREMENT, HAD SINCE LEFT HIS LAST KNOWN PREMISES. THE SUBSEQUENT MAILING OF SAID NOTICE BY SPEED POST, OR THE PURPORTED SERVICE BY AFFIXTURE, AT THE SAME VERY 6 I.T.A. NOS. 06 & 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 ADDRESS, EVEN AFTER HAVING BECOME FULLY AWARE THAT THE ASSESSEE NO MORE RESIDED AT THAT ADDRESS, TO SAY TH E LEAST, WAS AN EFFORT IN SHEER FUTILITY MORE A FORMALITY AND LESS AN EFFECTIVE ATTEMPT TO SERVE, INTENDED TO BRING HOME THE PURPOSE. BUT STILL WHEN IT DID NOT REACH THE ASSESSEE BY ANY SUCH MODES, THE SERVICE IS NOT COMPLETE. IT IS APPARENTLY NOT A CASE OF ANY HOSTILITY, MALA FIDE, REFUSAL OR SERVICE ON A WRONG PERSON, BUT ENTIRELY OF NON-SERVICE OF NOTICE. TO REBUT ANY PRESUMPTION OF NOTICE HAVING BEEN SERVED ON HIM, THE ASSESSEE IS F ILING HEREIN A SWORN AFFIDAVIT DENYING SERVICE OF ANY OF THE NOTICES ON HIM OR ANY OF HIS AGENTS. NOW IF THE NOTICE WAS ISSUED AS EARLY AS ON 04.09.2009 (WHICH COULD BE SERVED UPTO 30.09.2009), THERE WAS AMBLE TIME TO LOCATE THE CORRECT/PRESENT ADDRESS OF ASSESSEE. BUT NOTHING OF THE SORT APPEARS TO HAVE BEEN DONE, UNLIKE THE EFFORTS MADE TO GATHER INFORMATION FROM DIFFERENT BANKS OF ASSESSEE, AND S IMPLY ISSUE OF NOTICE HAS BEEN DEEMED, WITH COMFORTABLE EASE, A S SERVICE THEREOF, SO THAT IT WAS SUFFICE TO PROCEED WITH AN EX-PARTE ASSESSMENT. SERVICE OF STATUTORY NOTICES, WHICH PRO VIDE JURISDICTION TO ANY AUTHORITY, TO SADDLE THE ASSESS EE WITH CIVIL CONSEQUENCES, HAS TO BE STRICTLY ENSURED IN THE MAN NER PRESCRIBED U/S 282(1) OF I.T. ACT, 1961, WHICH MAND ATES SERVICE OF NOTICE ON THE PERSON THEREIN NAMED EITHE R BY POST OR AS IF IT WERE A SUMMONS ISSUED BY A COURT UNDER THE CODE OF CIVIL PROCEDURE, 1908 (5 OF 1908). 1.3 A CURSORY LOOK AT THE ORDER IMPUGNED, AS ALSO THE OTHER MATERIAL ON RECORD, SHOWS THAT NONE OF THE ES SENTIAL INGREDIENTS OF RULE 17 WERE EVEN REMOTELY TAKEN CAR E OF TO ENSURE PROPER SERVICE OF THE STATUTORY NOTICE DATED 04.09.2009. THE REPORT OF THE NOTICE SERVER THAT TH E ASSESSEE HAD SINCE LEFT THE PLACE, WAS GOOD ENOUGH TO ACTIVA TE THE LEARNED AO TO USE ALL HER DUE AND REASONABLE DILIGE NCE TO CONCLUDE THAT THE ASSESSEE COULD NOT BE FOUND AND W AS LIKELY NOT TO BE FOUND AT THE GIVEN ADDRESS WITHIN A REASO NABLE TIME, AND THERE BEING NO AGENT EMPOWERED TO ACCEPT SERVIC E OF NOTICE, THEN AND ONLY THEN THE SERVICE SHOULD HAVE BEEN EFFECTED BY AFFIXTURE BY MEETING FURTHER REQUIREMEN TS THEREFOR AS ENSHRINED IN LAW. BUT, IN THIS CASE, A GLARING F ACT ON 7 I.T.A. NOS. 06 & 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 RECORD, IS THAT THE NOTICE SERVER HIMSELF REPORTED THAT SERVICE COULD NOT BE EFFECTED SINCE THE ASSESSEE HAD LEFT T HAT PLACE AFTER RETIREMENT. 1.4 AS STATED EARLIER, IT APPEARS FROM RECORD, AFT ER THE FAILURE OF NOTICE SERVER TO EFFECT PERSONAL SERVICE AT THE GIVEN ADDRESS, THE NOTICE WAS SENT BY SPEED POST. SENDING THE NOTICE ON SAME ADDRESS, WHICH THE ASSSESSEE HAD SINCE LEFT AND WHICH NO MORE BELONGED TO HIM, IPSO FACTO, GOES AGAINST THE VERY SPIRIT OF RULE 17 WHICH ENJOINED UPON THE SERVING O FFICER TO EXERCISE ALL DUE AND REASONABLE DILIGENCE TO FIRST LOCATE THE DEFENDANT AND THEN PROCEED ALTERNATIVELY. 1.5 IN THE CASE UNDER APPEAL, THE SERVICE OF NOTIC E IS APPARENTLY PRESUMPTIVE, WHETHER IT BE BY SPEED POST OR BY PURPORTED AFFIXTURE. BUT UNDENIABLY, WHEN IT WAS MA DE WITH AMPLE KNOWLEDGE THAT THE PREMISES WERE NO MORE OCCU PIED BY ASSESSEE, NOR THE SAME BELONGED OR WERE OWNED BY AS SESSEE, SUCH PRESUMPTIVE SERVICE IS OF NO AVAIL NOR DOES IT HAVE AN FORCE OF LAW. NOW THAT THE ASSESSEE IS MAKING A SWO RN STATEMENT DENYING RECEIPT OF ANY SUCH NOTICE, WHICH FACT ALSO BEARS OUT FROM THE ENTIRETY OF FACTS AND CIRCUMSTAN CES WHEN THE ASSESSEE HAD NO INTENTIONS TO EVADE SERVICE OF NOTICE AT ANY STAGE, THE PRESUMPTION STANDS REBUTTED WITH ONU S RESTING ON THE REVENUE TO ESTABLISH SERVICE OF NOTICE WITH COGENT EVIDENCE. 1.6 IT WOULD BE CONTEXTUALLY IMPORTANT TO HAVE ACC ESS TO A FEW JUDICIAL AUTHORITIES TOUCHING UPON THE ISSUE UN DER DISCUSSING. IN CIT V. SILVER STREAK TRADING P LTD ( 2008) 216 CTR 260 (DEL) 326 ITR 418, AGAINST FIRST NOTICE U/S 143 (S), CLAIMED TO HAVE BEEN SENT BY SPEED POST, ON ONE ATT ENDED. MUCH LATER, A SECOND NOTICE WAS SENT, ON WHICH THE COUNSEL OF ASSESSEE, WHILE RECEIVING THE SAME ON ASSESSEES BE HALF, ENDORSED IT AS TIME BARRED NOTICE. THEREAFTER, OR DER U/S 144 WAS PASSED. ASSESSEE FILED AFFIDAVIT OF NOT HAVING RECEIVED THE FIRST NOTICE. THE TRIBUNAL TOOK A VIEW IN ASSESSEE S FAVOUR BY OBSERVING THAT THE ONUS WAS ON REVENUE TO PROVE THE SERVICE OF FIRST NOTICE WITHIN THE PRESCRIBED PERIOD. THE HON BLE HIGH 8 I.T.A. NOS. 06 & 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 COURT, ENDORSING THE TRIBUNALS FINDING, OBSERVED T HAT WHEN NONE ATTENDED IN RESPONSE TO FIRST NOTICE, THE AO S HOULD HAVE TAKEN STEPS TO FIND OUT IF THE SAID NOTICE HAD BEEN SERVED ON ASSESSEE, BEFORE SENDING ANOTHER NOTICE. THE REVENU ES APPEAL WAS DISMISSED AS FRIVOLOUS WITH COST OF RS. 10000/- . IN THE CASE OF ACIT VS. SHER SINGH (2010) 131 TTJ (CH.) (U O) 1, NOTICE U/S 158BD WAS SERVED BY AFFIXTURE ON THE HOU SE SINCE SOLD BY ASSESSEE. THE TRIBUNAL OBSERVED THAT EVEN W HEN THE AO WAS AWARE THAT THE HOUSE HAD SINCE BEEN SOLD, IT DID NOT BELONG TO ASSESSEE, SO THAT THE SERVICE BY AFFIXTUR E ON THE SAID HOUSE WAS HELD TO BE INVALID. SANS ANY EFFORTS MADE WITH DUE AND REASONABLE DILIGENCE TO LOCATE THE PRESENT ADDR ESS OF THE ASSESSEE, SERVICE BY AFFIXTURE ON A HOUSE SINCE SOL D BY ASSESSEE, WAS HELD TO BE BAD IN LAW. THE TRIBUNAL T OOK DUE NOTICE OF THE RELEVANT PROVISIONS OF CPC AND VARIO US AUTHORITIES TO PASS A WELL REASONED ORDER IN SUPPOR T OF ITS VIEW. IN YET ANOTHER CASE OF CIT V. NAVEEN CHANDER (2010) 42 DTR 156 (P&H), THE HONBLE HIGH COURT UPHELD THE FI NDINGS OF THE TRIBUNAL, WHERE THE SERVICE OF NOTICE U/S. 158BD BY AFFIXTURE WAS HELD TO BE BAD, WHEN SUCH SERVICE WAS NOT SUPPORTED BY IDENTIFICATION OF PLACE BY ASSOCIATING ANY LOCAL PERSON AND THE REPORT OF THE NOTICE SERVER WAS ALSO NOT WITNESSED BY ANY PERSON AT ALL, SO THAT IT WAS FOUN D TO BE IN CONTRAVENTION OF THE RULES PRESCRIBED BY CPC. LIKEW ISE, IN THE CASE OF CEBON INDIA, 12 DTR (DEL) 402 (TRIB), ON HA VING PERUSED THE MATERIAL ON RECORD HELD THAT IN THE ABS ENCE OF ANY EVIDENCE ON RECORD TO SHOW SERVICE OF NOTICE BY PRO CESS SERVER OR BY REGISTERED POST, THERE WAS NO SERVICE MADE AN D HENCE, THE ASSESSMENT WAS HELD TO BE HAD. THE HONBLE PUN JAB & HARYANA HIGH COURT, DISMISSING REVENUES APPEAL IN CIT V CEBON INDIA LTD (2010) 34 DTR 119 (P&H) CONFIRMED T HE FINDINGS OF THE TRIBUNAL. IN THE CASE OF KIRAN MACH INES V. ITO (2007) 295 ITR 4 (MAD.), THE HIGH COURT HELD THAT WHERE THE ADDRESS OF THE ASSESSEE WAS NOT KNOWN, THE A.O. COU LD HAVE ORDERED PUBLICATION OF NOTICE IN PRESS AS PER ORDER V RULE 20(1A) OF CPC. 1.7 THE FACTS NARRATED HEREINABOVE, THE RELEVANT PROVISIONS OF CPC AND THE AUTHORITIES RELIED UPON, 9 I.T.A. NOS. 06 & 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 CONCLUSIVELY ESTABLISHED OF A SERIOUS INFIRMITY HAV ING OCCURRED IN THE SERVICE OF STATUTORY NOTICE. THUS, THERE BEING NO VALID SERVICE OF NOTICE U/S 143(2), THE IMPUGNED ORDER IS VOID AB INITIO, AS PROPER SERVICE OF NOTICE IS THE FOUNDATION FOR ASSUMING VALID JURISDICTION. USEFUL SUPPORT CAN ALS O BE DRAWN FROM (2008) 296 ITR 333 (DEL.); 173 ITR 10(ORISSA); 194 ITR 748(ALL.); & 253 ITR 334 (GAU.). 1.8 IT MAY WELL BE SIGNIFICANT TO MENTION AT THIS VERY JUNCTURE THAT EVEN THE PROVISIONS OF SECTION 292BB WOULD ALSO NOT COME TO THE RESCUE OF REVENUE, INASMUCH AS IT I S A CASE, WHERE THE ASSESSEE, FOR WANT OF ANY INFORMATION WIT H HIM, HAD NO OCCASION TO ASSOCIATE IN ASSESSMENT PROCEEDINGS, WHERE HE COULD HAVE RAISED AN OBJECTION TO THIS ASPECT OF TH E MATTER, IN THE COURSE OF ASSESSMENT PROCEEDINGS. IT BEARS OUT FROM THE PLAIN READING OF THIS SECTION, THAT SUCH OBJECTION IS IMPLIED ONLY WHEN THE ASSESSEE, AT ANY STAGE, HAS PARTICIPA TED IN ASSESSMENT PROCEEDINGS. THIS PROVISION THEREFORE, I S NOT APPLICABLE TO THE FACTS OF THIS CASE. 7. THE ASSESSEE HAD EFFECTIVELY RAISED THREE QUESTI ONS BEFORE THE LEARNED CIT(A), CHALLENGING THE VALIDITY OF THE SER VICE OF THE NOTICE, I.E., EFFORTS TO LOCATE ASSESSEE; RECONCILIATION OF DATES; ADDRESSES OF WITNESSES DURING AFFIXTURE. 8. THE LEARNED CIT(A), AS SEEN FROM THE ABOVE RELEV ANT PORTION OF HIS ORDER, HAS DEALT WITH ONLY THE ISSUE OF DATES A ND REGARDING THAT TOO, HE HAS NOT SPECIFICALLY ADDRESSED THE ASSESSEES OBJEC TION REGARDING THE ALLEGED MUTUAL INCONSISTENCIES AMONGST THE DATES OF ISSUANCE OF NOTICE, 10 I.T.A. NOS. 06 & 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 I.E., ON 04.09.2009, AFFIXTURE, I.E., ON 14.09.2009 AND POSTAL RECEIPT, I.E., ON 18.09.2009. 9. THUS, WE ARE OF THE CONSIDERED VIEW THAT THIS IS SUE REQUIRES TO BE SENT BACK TO THE FILE OF THE LEARNED CIT(A) FOR PASSING A SPEAKING ORDER ON ALL THE OBJECTIONS AGAINST THE VALIDITY OF THE A FFIXTURE, AS RAISED BY THE ASSESSEE BEFORE THE LEARNED CIT(A), AND AGAINST THI S PROPOSAL, THE LEARNED DR HAS SOUGHT TO PLACE RELIANCE ON ACIT VS. M/S SO NAL INDUSTRIES LTD., RENDERED BY THE DELHI BENCH OF THE ITAT ON 29.02.20 12, IN ITA NO. 5677/DEL./2011, FOR A.Y. 2006-07 (COPY OF THE ORDE R PLACED ON RECORD). IN THE SAID CASE, THE TRIBUNAL REMITTED THE MATTER TO THE LEARNED CIT(A) TO GIVE A FINDING ON THE DISPATCH OF NOTICE UNDER SECT ION 148 OF THE ACT, WHERE THE DISPATCH NUMBER WAS MENTIONED ON THE NOTI CE ITSELF. 10. THE LEARNED DR HAS ALSO PLACED RELIANCE ON V.R. A. COTTON MILLS (P) LTD. VS. UNION OF INDIA AND ORS., RENDER ED BY THE HONBLE HIGH COURT OF PUNJAB AND HARYANA, IN CWP NO. 18193 OF 2011, VIDE ORDER DATED 27.09.2011, HOLDING THAT ISSUANCE OF NO TICE UNDER SECTION 143(2) OF THE ACT AMOUNTS TO SERVICE THEREOF. 11. PER CONTRA, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SOUGHT TO RELY ON CIT VS. SUNIL KUMAR CHHABRA, RENDERED BY THE HONBLE HIGH COURT OF PUNJAB AND HARYANA, IN ITA NOS. 85 OF 2011 (O&M) & 287 OF 11 I.T.A. NOS. 06 & 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 2011 (O&M), FOR A.Y. 2006-07, VIDE ORDER DATED 01.0 2.2012, REPORTED AS (2012) 70 DTR (P&H) 446 (COPY PLACED ON RECORD), WH EREIN, V.R.A COTTON MILLS (P) LTD. VS. UNION OF INDIA AND ORS. (SUPRA) HAS BEEN REFERRED TO AND IT HAS BEEN HELD THAT IN THE ABSENC E OF EVIDENCE OF DELIVERY OF NOTICE, IT CANNOT BE PRESUMED THAT THE NOTICE HA D BEEN SERVED ON THE ASSESSEE WITHIN THE PRESCRIBED PERIOD OF LIMITATION AS PER SECTION 143(2)(II) OF THE ACT, WHICH REQUIRES THAT THE NOTI CE HAS TO BE SERVED ON THE ASSESSEE BEFORE THE EXPIRY OF TWELVE MONTHS FRO M THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. WE DIRECT THAT THE LEARNED CIT(A) WILL ALSO TAKE INTO CONSIDERATION THE THREE AFORESAID CASE-LAWS RELIED ON BEFORE US BY THE PARTIES. IT IS ORDERED A CCORDINGLY. 12. SINCE THE JURISDICTIONAL ISSUE OF VALIDITY OF NOTIC E UNDER SECTION 143(2) OF THE ACT HAS, AS ABOVE, BEEN SENT BACK T O THE FILE OF THE LEARNED CIT(A), IT FOLLOWS AS A NATURAL COROLLARY, THAT THE ISSUES ON MERITS, I.E., CONCERNING SECTION 54F OF THE ACT (SUBJECT MATTER OF APPEAL ON MERIT BY THE ASSESSEE) AND THAT UNDER SECTION 68 OF THE ACT (A S TAKEN BY THE DEPARTMENT IN ITS APPEAL BEFORE US) ALSO NEED TO BE SENT BACK TO THE FILE OF THE LEARNED CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW, ON AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE, IN THE LIGHT OF 12 I.T.A. NOS. 06 & 81(ASR)/2013 ASSESSMENT YEAR: 2008-09 THE DECISION TO BE TAKEN BY HIM QUA THE ISSUE OF VA LIDITY OF SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT. ORDERED ACC ORDINGLY. 13. IN THE RESULT, BOTH APPEALS ARE TREATED AS ALLOW ED FOR STATISTICAL PURPOSES, AS INDICATED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH SEPTEMBER, 2014 SD/- SD/- (B.P. JAIN) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11 TH SEPTEMBER, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: BHUSHAN LAL RAINA, C/O- SH. DHARAM PA UL BANSAL, M/S PARMOD TRADING CO., LOHA MANDI, PHAGWARA 2. ITO, WARD I, PHAGWARA 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.