VIKRAM ELECTRIC EQUIPMENT P.LTD,NEW DELHI V. ACIT, CIRCLE-26(2), NEW DELHI

CO 74/DEL/2023

AI Insights

The case involves an appeal by the Revenue and a cross objection by the assessee against the order of the CIT(Appeals) which deleted the addition made under section 68 of the Act. The assessee challenged the validity of the reassessment on the grounds of non-service of notice under section 148, while the Revenue appealed against the deletion of the addition. The tribunal found that the notice under section 148 was not validly served, leading to the quashing of the reassessment order.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 717207 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 17 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-08-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 05-07-2023
• Other Referred Cases: CIT Vs. Chetan Gupta [382 ITR 613 (Del.)], Veena Devi Karnani Vs. ITO [410 ITR 23 (Del.)], Pr.CIT Vs. M/s Dart Infra Build Pvt. Ltd. [ITA No. 10/2022 dated 17.11.2023], CIT Vs. Kishan Chand [328 ITR 173 (P&H)], DCIT Vs. M/s Suruchi Foots Pvt. Ltd. [ITA No.3536/Del/2017 & CO No.115/2023 dated 22.12.2023, ITAT (Del.)], M/s Tourism India Management Enterprises Pvt. Ltd. Vs. DCIT [ITA No.1209/Del/2019 dated 04.12.2019, ITAT (Del)], Shri Gajendra singh Jadon Vs. ACIT [ITA No.6539/Del/2019 dated 25.08.2023], Shri Sanjeev Chandra Kant Deo Vs. ITO [ITA Nos.2280 & 2281/Mum/2019 dated 25.10.2021], Mandeep Malli Vs. ACIT [ITA No.307/Asr/2023 dated 07.05.2024], UOI &Ors. v. Dhanwanti Devi &Ors; 6 SCC 44, Sun Engineering Works (P) Ltd.; 198 ITR 297, R. K. Upadhyaya 166 ITR 163, Banarsi Debi &Anr. v. 1. T. 0., District IV, Calcutta &Ors., 53 ITR 100, C.I.T. v. Robert, 48 ITR 177, Bhagwan Singh Vs. Ram Balak Singh, AIR 1988 (Patna) 166, CIT Vs. ThayaballiMullaJeevajiKapasi (1967) 66 ITR 147 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ABHISHEK DEAVEL; QUASHING; SPECIAL LEAVE; IS; ISSUING NOTICE UNDER SECTION
• Assessee Lawyers: R.S. SINGHVI; WAY OF AFFIXTURE ONLY AFTER
• Keywords: Condonation of delay; Set aside; Difference of opinion; Revised return; Reasonable cause; Reassessment proceedings; Unexplained cash credit; Period of limitation; Reopening of assessment; Search and seizure; Block assessment; Assessment record; Reason to believe; Tangible material; Borrowed satisfaction; CHAPTER IV
• Section: 148; 144; 143(3); 142(1); 68; 131

Judgement Text

"I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “F” NEW DELHI BEFORE SHIR MAHAVIR SINGH, VICE PRESIDENT (THIRD MEMBER) SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER & SHRI AVDHESH KUMAR MISHRA, ACCOUNTANT MEMBER आ.अ.सं/.I.T.A No.4651/Del/2018 िनधा रणवष /Assessment Year: 2009-10 ACIT, Circle 26(2), Room No.192, C.R. Building, New Delhi. बनाम Vs. M/S HIGHVISTA BUILDCON P. LTD. Earlier Known as VIKRAM ELECTRIC EQUIPMENT P. LTD. 346 A, 2nd Floor, Lado Sarai, New Delhi. PAN No.AABCV7648B अपीलाथ\u0014 Appellant \u0016\u0017यथ\u0014/Respondent & Cross Objection No. 74/Del/2023 (In I.T.A No.4651/Del/2018) िनधा रणवष /Assessment Year: 2009-10 M/S HIGHVISTA BUILDCON P. LTD. Earlier Known as VIKRAM ELECTRIC EQUIPMENT P. LTD. 346 A, 2nd Floor, Lado Sarai, New Delhi. PAN No.AABCV7648B बनाम Vs. ACIT, Circle 26(2), Room No.192, C.R. Building, New Delhi. अपीलाथ\u0014 Appellant \u0016\u0017यथ\u0014/Respondent Assessee by Shri R.S. Singhvi, Adv. Revenue by Shri Abhishek Deavel, Sr. DR सुनवाईक\bतारीख/ Date of hearing: 22.08.2025 उ\u000eोषणाक\bतारीख/Pronouncement on 22.08.2025 Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 2 आदेश /O R D E R PER C.N. PRASAD, J.M. This appeal and cross objection are filed by the Revenue and Assessee against the order of the Ld.CIT(Appeals)-32, New Delhi dated 15.12.2017 for the AY 2009-10. 2. The appeal of the Revenue is filed with a delay of 26 days and the Revenue has filed a petition for condonation of delay in filing the appeal requesting to condone the delay. On perusing the reasons for delay in filing it is observed that the files got misplaced along with project papers and therefore the appeal could not be filed in time by the Revenue. The Ld. Counsel for the assessee do not have any serious objection for condoning the delay of 26 days. 3. Considering the submissions of both the parties and the reasons for filing appeal with a delay of 26 days, we observe that Revenue has reasonable cause in filing the appeal belatedly. Thus, the delay is condoned. 4. The Revenue in its appeal challenged the order of the Ld.CIT(Appeals) in deleting the addition made u/s 68 of the Act and the assessee in its cross objection challenged the validity of Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 3 reopening of assessment on the ground that notice u/s 148 of the Act was not served and therefore, reassessment order passed u/s 143(3) r.w.s 147 is illegal and void ab initio. 5. The brief facts of the case are that the assessee company is engaged in the business of Real Estate Development filed its return of income on 30.09.2009 declaring loss of Rs.61,96,003/-. The return was processed u/s 143(1) on 04.11.2011 and subsequently notice dated 30.03.2016 u/s 148 of the Act was issued for reopening the assessment u/s 147 of the Act. The basis for assumption of jurisdiction u/s 147 of the Act was information regarding genuineness of credits received by the assessee company from various parties. The reassessment was completed vide order dated 31.12.2016 u/s 143(3) r.w.s. 147 of the Act making addition of Rs.418,33,73,058/- u/s 68 of the Act. 6. Aggrieved by the assessment order, the assessee company filed appeal before the Ld.CIT(Appeals) challenging the reassessment order on various grounds including the ground relating to non- service of notice u/s 148 of the Act. The Ld.CIT(A) by his impugned order dated 15.12.2017 deleted the addition on merits after examining the material placed on record. However, the Ld.CIT(A) did not specifically adjudicate the legal grounds raised by the Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 4 assessee challenging the validity of assumption of jurisdiction u/s 147 of the Act as well as non-service of notice u/s 148 of the Act. Against the order of the Ld.CIT(A) the Revenue is in appeal and has raised the following grounds: - 1. “That the Ld.CIT(A) has erred in law as well as on the facts and the circumstances of the case in deleting the addition of Rs.4183373058/- on account of unexplained credits u/s 68 of the I.T. Act, 1961 without calling for any report from the AO inspite of the fact that the AO in his order dated 31.12.2016 passed u/s 147/143(3) of the I.T. Act, 1961 had clearly mentioned that no much time was left with him during the assessment proceedings to verify the identity, genuineness and creditworthiness of the parties from whom the assessee company has received these credit entries. 2. The Appellant craves to be allowed to amend, delete or add any other grounds/s of appeal during the course of hearing of this appeal.” 7. The assessee in its cross objection raised the following legal grounds: 1. “(i) That on the facts and circumstances of the case, the reasons for issued of notice u/s 148 having been recorded without proper application of mind and same being vague and sweeping, the assumption of jurisdiction u/s 147 is illegal and not sustainable under the law. (ii) That the reasons being merely based on information from investigation and in absence of any tangible material or independent enquiry to establish any case income escaping assessment income, the notice u/s 148 on the basis of borrowed satisfaction is untenable and bad in law. (iii) That the allegation of money laundering being factually incorrect and unsubstantiated, the entire basis Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 5 of reopening and so called satisfaction regarding income escaping assessment is non-existent and wholly mechanical. 2. (i) That on the facts and circumstances of the case, in absence of service of notice u/s 148, the re-assessment order u/s 147 is illegal and void-ab-initio. (ii) That the notice u/s 148 having been issued at the wrong address, the same was never served upon the assessee and as such the completion of assessment u/s 147 without service of notice u/s 148 is invalid and non-est. 3. That the notice u/s 148 is without proper approval u/s 151, the same is illegal and void-ab- initio. 4. That on the facts and circumstances of the case, the Ld. CIT(A) has grossly erred in not adjudicating the legal grounds challenging the validity of notice u/s 148 and reassessment order u/s 147 of the Income Tax Act, 1961 in absence of satisfaction of essential jurisdictional requirement. 5. That the respondent craves leaves to add, alter, amend, forgo any of the grounds of cross objection at the time of hearing.” 8. Since the assessee has raised legal issues and the assumption of jurisdiction for reopening assessment u/s 148 of the Act and it is going to the root of the matter first we take up the grounds raised by the assessee in its cross objection for adjudication. 9. In ground no.2 of grounds of cross objection the assessee challenged the reassessment order passed u/s 147 of the Act as Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 6 illegal and void ab initio in the absence of service of notice u/s 148 of the Act. 10. Ld. Counsel for the assessee filed a paper book containing application filed under RTI Act and response received in respect of the same. The Ld. Counsel invited our attention to the address mentioned in the notice u/s 148 of the Act dated 30.03.2016 AS 86, Darya Ganj, New Delhi 1100002 placed at page 4 of the Paper Book and submitted that the address so mentioned in the notice u/s 148 is factually incorrect as the correct address of the assessee property is 346 AS/FL, Lado Sarai, South West, Delhi. The Ld. Counsel for the assessee submits that the assessee office was earlier at 56, Darya Ganj, New Delhi 110002 which was shifted to 346 AS/FL, Lado Sarai, South West, Delhi. 11. The Ld. Counsel for the assessee further submitted that 56- Darya Ganj, New Delhi was the previous address of the assessee and the change in address from Darya Ganj to Lado Sarai was duly informed to the Assessing Officer as the assessee filed its latest return for AY 2015-16 as well as vide letter dated 07.01.2016 informing change of address well before the date of issue of notice u/s 148 of the Act. Ld. Counsel for the assessee further invited our attention to the address mentioned against column no.1 of the Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 7 performa for recording the reasons for initiating proceedings u/s 148 of the Act and for obtaining approval u/s 151 which is placed at page 5 which contains the correct and latest address of the assessee i.e. property 346, AS/FL, Lado Sarai, South West, Delhi to bring home that the AO was well aware of the changed address and the notice u/s 148 issued at the wrong address clearly establishing the non-service of notice. 12. The Ld. DR, on the other hand, submitted a copy of report sent by the AO according to which the notice u/s 148 of the Act was served through affixture on the following addresses: 1. 56, Darya Ganj, New Delhi – 110002 – Notice served by affixture. 2. 86, Darya Ganj, New Delhi – 110002 – Notice served by speed post. 3. 346-AS/FL, Lado Sarai, South West, Delhi-110030 – Notice served by affixture. The Ld. DR submits that the notice u/s 148 of the Act was served by affixture through notice server on 31.03.2016 which was also witnessed by ACIT in the addresses mentioned in Sl. Nos.1 & 3 above. Ld. DR submits that in so far as the address mentioned in Sl. No.2 above notice u/s 148 of the Act was sent through speed post and the speed post acknowledgment was also affixed on the notice. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 8 13. In his rejoinder the Ld. Counsel for the assessee submitted that the initial notice u/s 148 of the Act having been sent to a completely wrong address i.e. 56, Darya Ganj, New Delhi-1100002, there was no occasion for any service by affixture which can only be resorted to in case of failure to serve the notice through normal mode. It was argued that the affixture if any at the first place was unwarranted and illegal in the absence of any attempt by the AO to serve notice through normal mode. The Ld. Counsel also disputed the validity of affixture report made on the very same day at two different locations by single notice server and pointed out that affixture report does not even contain any signature of an independent witness. 14. The Ld. Counsel made reference to various judicial decisions on the issue of validity of notice through affixture as under: 1. CIT Vs. Chetan Gupta [382 ITR 613 (Del.)]; 2. Veena Devi Karnani Vs. ITO [410 ITR 23 (Del.)]; 3. Pr.CIT Vs. M/s Dart Infra Build Pvt. Ltd. [ITA No. 10/2022 dated 17.11.2023]; 4. CIT Vs. Kishan Chand [328 ITR 173 (P&H)]; 5. DCIT Vs. M/s Suruchi Foots Pvt. Ltd. [ITA No.3536/Del/2017 & CO No.115/2023 dated 22.12.2023, ITAT (Del.)]; Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 9 6. M/s Tourism India Management Enterprises Pvt. Ltd. Vs. DCIT [ITA No.1209/Del/2019 dated 04.12.2019, ITAT (Del)]; 7. Shri Gajendra singh Jadon Vs. ACIT [ITA No.6539/Del/2019 dated 25.08.2023]; 8. Shri Sanjeev Chandra Kant Deo Vs. ITO [ITA Nos.2280 & 2281/Mum/2019 dated 25.10.2021]. 15. It was further contended that when the assessee sought information about the service of notice u/s 148 of the Act under RTI vide application dated 19.05.2023 the AO did not even bring on record the fact of service through affixture even though the assessee vide letter dated 07.01.2016 brought to the notice of the AO during assessment proceedings that original notice u/s 148 dated 30.03.2016 was not served on the assessee as the Department was pursuing the matter by sending correspondence to wrong address. Therefore, the Ld. Counsel submits that it is at later stage when the assessee sought for the details under RTI the fact of unwarranted affixture was brought on record and as such there is serious doubt about the authenticity of affixture. 16. We have heard the rival submissions and perused the material available on record. The preliminary issue raised by the assessee company is non-service of notice u/s 148 of the Act. It is trite law that service of notice u/s 148 is mandatory for valid assumption of Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 10 reassessment proceedings u/s 147 of the Act and failure to serve notice before completion of the assessment renders the order invalid. Reliance is placed on the decision of the Hon’ble Jurisdictional High Court in the case of CIT Vs. Chetan Gupta (supra), wherein the Hon’ble High Court held that reassessment proceedings finalized by the Assessing Officer without affecting proper service of notice on the assessee u/s 148 of the Act or invalid and liable to be quashed. 17. On careful perusal of the documents placed on record, we find that the current address of the assessee company i.e. 346 AS/FL, Lado Sarai, Delhi was well within the knowledge of the AO and this fact is verifiable from the proforma for obtaining sanction u/s 151 of the Act placed at Paper Book page 5, wherein the AO has himself noted the correct address before issuing notice u/s 148 of the Act. Further the assessee company vide letter dated 07.01.2016 and in the return filed for AY 2015-16 duly informed the AO about the change in address which are part of record and as such the AO was duly informed of the current address of the assessee company. Further we find that the notice u/s 148 of the Act dated 30.03.2016 was apparently addressed and sent to a wrong address and was never served on the assessee company. It is noticed that the notice Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 11 was sent to 86, Darya Ganj, New Delhi-1100002, whereas the previous address of the assessee company was 56, Darya Ganj, New Delhi-110002 which clearly means that notice u/s 148 of the Act was never issued at the current address of the assessee company. Moreover since the notice itself was issued at wrong address there is no question of any service or refusal to receive the notice by the assessee. Further we observed that Revenue did not bring on record any acknowledgement of service of notice on the assessee company in any of the addresses mentioned above. 18. We further noticed from the Investigation Report of the ITO (Inv.) Unit-III, summons u/s 131 were issued on 14.01.2016 to the Director of the assessee company in its new address i.e. 346, AS/FL, Lado Sarai and in response the Director appeared and filed his reply. So when the summons were issued to the Director of the assessee company in its new address and service of summons were affected, we failed to understand as to why notice dated 30.03.2016 u/s 148 of the Act was not issued in the new address. 19. Further it is also not the case of the Revenue that the notice was returned un-served or refused by the assessee to accept the notice and affixture of notice was made. In the circumstances, we are of the opinion that there was no occasion for the AO to have Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 12 proceeded with the exercise of affecting the service of notice through affixture without exhausting the other modes of service. We also find that the assessment order is completely silent about the notice of service through affixture even though the same is a crucial fact. Further the authenticity of the affixture report is not free from all the doubt particularly when the same does not even contain any signature of independent witnesses and the affixture was ostensibly done at two separate locations on a single day by the same person. It is apparent that the AO did not even care to look into the record before him which glaringly contained the current address of the assessee as already noted above. 20. It is also worth taking note of the fact that even during the course of assessment proceedings for AY 2013-14 by letter dated 07.01.2016 the assessee raised a specific plea regarding non-service of notice u/s 148 of the Act and even then the AO did not rebut the same which vitiates the entire foundation of the assessment order. 21. In view of the above, we agree with the contention raised on behalf of the assessee company that service through affixture in terms of Rule 17 of Order V of the CPC is the last resort and same can only be done after exhausting attempt to service through normal mode. In the present case, as noted above, the notice u/s Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 13 148 of the Act dated 30.03.2016 having been sent at wrong address the subsequent attempt through serve through affixture is bereft of authority, without following proper procedure and thus, not sustainable. 22. The Hon’ble Supreme Court in the case of CIT Vs. Ramender Nath Ghose [82 ITR 888] after analyzing the Rule 17 of Order V of Civil Procedure Court in respect of service of notice/summons etc. held as under: - “Admittedly, the assessees have not been personally served in these cases. Therefore, we have to see whether the alleged service by affixation was in accordance with law. It is necessary to mention that, according to the assessees, they had no place of business at all. They claim that they have closed their business long before the notices were issued. Hence, according to them, Mr. Neogi must have gone to a wrong place. This contention of the assessees has been accepted by the Appellate Bench of the High Court. Bearing these facts in mind, let us now proceed to consider the relevant provisions of law. Section 63(1) of the Act reads: A notice or requisition under this Act may be served on the person therein named either by post or, as if it were a summons issued by a court, under the Code of Civil Procedure, 1908. (V of 1908).” 9. Rule 17 of Order V of the Civil Procedure Code reads: “Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 14 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 original 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 which 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 affixed. ” (emphasis applied) As seen earlier the contention of the assessees was that at the relevant time they had no place of business. The report of the serving officer does not mention the names and addresses of the person who identified the place of business of the assessees. That officer does not mention in his report nor in the affidavit filed by him that he personally knew the place 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 Section 33B.” 23. In the case of Veena Devi Karnani Vs. ITO (supra) the Hon’ble Delhi High Court held that in terms of Rule 17(2) the addresses to which a notice or summon or requisition or order or any other communication may be delivered or transmitted shall be either available in the PAN data base of the assessee or the address or the Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 15 address available in the Income tax return to which the communication relates to or the address available in the last Income tax return filed by the assessee. It was held that all these options have to be resorted to by the concerned authority for service of notice. 24. The Hon’ble Punjab & Haryana High Court in the case of CIT Vs. Kishan Chand (supra) held as under: “2. The assessee is individual and as a sequel to the search and seizure operation was conducted on his premises, he filed revised return. The Assessing Officer framed assessment under section 144 of the Act on the basis of best judgment. The Commissioner of Income-tax (Appeals) accepted the appeal mainly on the ground that the assessee had not been served. Evidence with regard to service by affixture was rejected on the ground that resort to affixture could not be straightaway taken without first taking other modes of service. The Tribunal affirmed the said finding. It was observed : \"From the facts of the case, I find that the search and seizure operations had been taken at the business and residential premises of the appellant as far back as August, 1976, and the income of the assessment year 1969-70 could be assessed by issuing a notice by March 31, 1978. Notice under section 148 was issued on March 23, 1978, and the Income-tax Officer was naturally anxious to see that the notice gets served by March 31, 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 March 23, 1978, taken Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 16 recourse 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 was 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. 4. In view of the finding of the Tribunal, which is not shown to be perverse, the question referred has to be answered against the Revenue and in favour of the assessee. Ordered accordingly.” 25. The coordinate bench of Delhi Tribunal in the case of DCIT Vs. M/s Suruchi Foots Pvt. Ltd. in ITA No.3536/Del/2017 & CO No.115/Del/2023 dated 22/12/2023 held as under: “6. Having considered rival submissions, we find that, though, earlier registered office of the assessee was at C-l/35, Safdarjung Enclave, New Delhi, however, it was subsequently shifted to AB-16, Community Centre, Safdarjung Enclave, New Delhi. It is observed from the material on record that after change of address of the registered office, assessee has been filing its return of income from the assessment year 2010-11 onwards in the new address. In fact, all official communications by the Assessing Officer is made with the assessee in the new address. Even, the new address has been updated in the PAN database. Thus, it is a fact on record that new address of the assessee was within the knowledge of the Assessing Officer. Whereas, section 148, notice has been issued to the assessee in the old address and since the assessee has shifted from the old address since long, it was not found Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 17 there and service was effected through affixture and assessment proceedings was completed ex parte under Section 144 of the Act. 7. Thus, the facts on record clearly reveal that, though, assessee’s new address was available in the assessment records of the Assessing Officer, however, without making any effort to serve the notice issued under Section 148 of the Act in the proper address, the Assessing Officer chose to send the notice on the old address and service was effected through affixture without making any effort to exhaust the other modes available and without making any effort to find out the correct address of the assessee from the assessment records relating to subsequent assessment years. Thus, in our view, no fault can be found in the decision of learned First Appellate Authority in holding the assumption of jurisdiction under Section 147 of the Act to be invalid due to non-service of notice under Section 148 of the Act. Accordingly we uphold the order of learned Commissioner (Appeals) by dismissing the ground raised.” 26. Similarly in the case of Shri Sanjeev Chandrakant Deo Vs. ITO in ITA Nos. 2280 & 2281/Mum/2019 dated 25/10/2021 the Mumbai Bench of the Tribunal held as under: “9. We have considered rival submissions in the light of decisions relied upon and perused materials on record. At the outset, we deem it appropriate to examine assessee's submissions regarding validity of service of notice issued under section 148 of the Act. There cannot be any doubt that issuance of notice under section 148 of the Act is a mandatory statutory requirement for initiation of proceeding under section 147 of the Act. Therefore, in absence of valid service of notice under section 148 of the Act, proceeding under section 147 of the Act would be vitiated. Undisputedly, in the facts of the present case, the notice issued under Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 18 section 148 of the Act on 12-03-2014 was served on the assessee by way of affixture. This is evident from the report dated 18-03-2014 submitted by the Inspector, Ward 23(3), Mumbai to the assessing officer, a copy of which is placed at page 21 of the paper book. The contents of the said report are as under:- \"Date: 18.03.2014 The Income Tax Officer 23(3) (3) Mumbai. Sub: Service of notice u/s 148 of the Income - Tax Act, 1961. In the case of Sanjeev Chcindrakant Deo, A.Y. 2010-11, PAN : ABWPD5388D. Respected Sir, As per directions, I visited the address mentioned in the notice u/s 148 in the case of Shri. Sanjeev chcindrakant Deo at A/501, Brahama Niwas, Plot no - 04,RDP -I, Mahada Colony, Mulund East, Mumbai - 4000800 for the service of the said notice for A.Y. 2010-11. However, the assessee was not present in the said address. Hence, the notice u/s 148 was served by way of affixture on the door of the said flat as it is the last known address of the assessee in the presence of Shri. Himanshu Sayana, Inspector Jt. CIT23(3), Mumbai. Submitted. Priya Vinerlcar Sd/- Inspector-23(3)(3), Mumbai. Sd/- Himanshu Sjiayana Inspector Jt. CIT- 23(3), Mumbai” 10. Thus, a reading of the report reproduced above would make it clear that as per the directions of the assessing officer, the concerned authority went to the address of the assessee and since the assessee was not present at the said address, he served the notice by way Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 19 of affixture on the door of the said premise. At th'is stage, it is necessary to refer to section 282 of the Act which lays down the mode and manner of service of notice, which is as under:- \"[Service of notice generally. \"282. (1) The service of a notice or summon or requisition or order or any other communication under this Act (heiinafter 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 (5 of 1908) for the purposes of service of summons; (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 addresses (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 Explanation to section 66A of the Information Technology Act, 2000 (2) of 2000).\" 11. Thus, as can be seen from the aforesaid provision, any notice / summons / requisition or order or any other communication under the Act has to be made by way of post or by such courier services as may be approved by the Board. Of course, they can also be served in the Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 20 manner as provided under the CPC for the purpose of service of summons or the other mode as provided in the said provision. Thus, the primary mode for service of notice, summons, orders, etc. is by way of post or through any approved courier services. 12. Having examined the provisions of section 282 of the Act, it is necessary to look into the manner and mode of service of summons as provided under CPC. Order V of the CPC lays down the procedure for service of summons. Whereas, rules 17 & 20 of Order V, CPC lays down the procedure for substituted service of notice / summons under certain circumstances, in case, such notices / summons cannot be served by way of post / courier service. Rule 17 of Order V, CPC provides for substituted service of notice / summons in two situations. Firstly, where the defendant or his agent or member of family to whom the summons is tendered, refuses to sign the acknowledgement and secondly, where the serving officer after using all due and reasonable diligence cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of him being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf. In such circumstances, the serving officer can affix a copy of the notice / summons on the outer door or some other conspicuous part of the house where the addressee / person stays and shall return the original to the Court with a report stating that he has affixed the copy of the notice / summons, the circumstances under which 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 affixed. Rule 20 of Order V, CPC also provides for substituted service in a situation when Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service and that for any other reason, the summons cannot be served in the ordinary way, then such summons / notice can be served by way of affixture in the last known address. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 21 13. Thus, a conjoint reading of section 282 of the Act and Order V Rules 17 and 20 of CPC would make it clear that the mode of service by affixation can be resorted to only if none of the other modes are practicable and cannot be resorted to at the first instance. If attempt to serve notice / summons by registered post was found to be ineffective, the serving officer is justified in ordering service by affixation. However, the conditions of Rules 17 and 20 of Order V, CPC have to be satisfied. The expression, \"after using of due and reasonable diligence\" as used in rule 17 of Oder V, CPC makes it incumbent upon the serving officer to serve by way of affixture, only if, after service of notice / summons either on the defendant or agent, refuses to sign the acknowledgement or serving officer cannot find the defendant or his agent who is empowered to accept summons / notice. Similarly, as per Rule 20 of Order V of CPC, service by way of affixture can be resorted to, if the defendant avoids service of notice / summons. 14. In the facts of the present case, the notice under section 148 of the Act was issued on 12-03-2014 and it was served on the assessee by way of affixture only after six days, i.e. on 18-03-2014, as per the report of the serving officer. Thus, neither the assessment order nor any other material on record including the report of service of notice under section 148 by way of affixture reveal that before resorting to serve notice by way of affixture, any attempt was made to serve the notice through post or any courier service as laid down under section 282 of the Act. Without exhausting the regular / ordinary course of service of notice as provided under section 282 of the Act, the assessing officer has straight away proceeded to serve the notice by way of substituted service as provided under Rule 17 and 20 of Order V of CPC. However, there is nothing on record to suggest that before resorting to substituted service of notice issued under section 148 of the Act, the pre-conditions of Rules 17 and 20 of Order V CPC were satisfied. Nowhere in the assessment order the assessing officer has mentioned even a single sentence to indicate that either the assessee or anyone authorized on his behalf has refused to sign the acknowledgement or the assessing officer Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 22 even after reasonable attempt has failed to find the assessee at the given address or the assessee has consciously avoided service of notice issued under section 148 of the Act. Thus, in our view, the notice issued under section 148 of the Act was not validly served on the assessee. Therefore, the fundamental requirement for initiation of proceedings under section 147 of the Act stands unsatisfied / unfulfilled. This being a jurisdictional error, the consequence which follows would result in invalidation of the assessment order. Therefore, we hold that the assessment order passed under section 143(3) r.w.s. 147 of the Act without valid service of notice under section 148 of the Act is void ab initio.” 27. The Amritsar bench of the Tribunal in the case of Mandeep Malli Vs. ACIT in ITA No.307/Asr/2023 dated 07/05/2024 held as under: “6. AS per rule 17 of order V of CPC mandates, an independent local person be the witness for service through affixture and for the purpose of having been associated with the identification of the place. However, on perusal of the affixture report [Refer page No 5 of the PB] shows that there was no independent local person as a witness and there is no evidence that anyone identified the place as belonging to the assessee before such affixture. (APB pg. 5) as evident from affixture notice which reads as under: Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 23 7. The Hon’ble jurisdictional High Court in the case of CIT v. Naveen Chander [2010] 323 ITR 49 (Punjab & Haryana), has observed that the Tribunal had record to the report issued by the process server. According to the report of the Inspector/notice server, the notice was affixed on the main door of Shop No. 33. There was no evidence of any local person having been associated with identifying the place of business of the assessee- respondent and the report was not witnessed by any person at all. It has been found to be flagrant violation of rule 17 of Order (v) of the Code which lays down a procedure to serve notice by affixture. Hence, the Tribunal was justified in holding that having regard to Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 24 the report of the Inspector/notice server, the requirements of the code of Civil Procedure had not been fulfilled and the block assessment completed in pursuance to the notice was not valid. 8. In another case, the Coordinate Amritsar Bench in the case of Parshotam Singh v. ITO, Ward-1 (4), Mansa [2016] (8) TMI 1180 has held as under: \"Validity of reopening of assessment - whether no laid down procedure as per CPC has been followed and also the affixture of notice in the absence of independent witness was not a legal service of notice - Held that: - We find that it is an undisputed fact that notice u/s 148 was issued on 30.03.2010 and on the same date it was affixed at the residence of assessee. Therefore, from the above, it is apparent that before service of notice through affixture no efforts were made earlier to service the same on the assessee through other means. In the present case we find that the admittedly no effort was made by Assessing Officer to serve the notice in an ordinary way. Further there is no order passed by Assessing Officer to the effect that service by affixture was made in accordance with law. The so called notice through affixture is in utter disregard to Rule 17, 19 & 20 of order 7 of CPC. - Decided in favour of assessee.\" 9. In the present case, there was no evidence of any local person having been associated with identifying the place of business of the assessee-respondent and the report was not witnessed by any person at all. In our view, it has been clearly flagrant violation of rule 17 of Order (v) of the Code 1908 which lays down a procedure to serve notice by affixture. Accordingly, as per the aforesaid report of the Inspector/notice server, the requirements of the code of Civil Procedure have not been fulfilled. 10. Following the Hon’ble jurisdictional High Court (supra), the reopening assessment completed in Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 25 pursuance to the alleged notice u/s 148 of the Act is held to be not valid and as such, the assessment order is quashed as void ab initio.” 28. The ratios of the above decisions squarely applies to the facts of the assessee’s case. Therefore, in view of the aforesaid discussion, we have no hesitation in holding that there was no valid service of notice u/s 148 of the Act and as such the reassessment order passed u/s 143(3) r.w.s. 147 of the Act dated 31/12/2016 was passed without mandatory service of notice u/s 148 and is invalid and liable to be set aside and the same is accordingly quashed. Ground no.2 of Cross Objection of the assessee is allowed. 29. As we have quashed the reassessment order on legal ground of non-service of notice u/s 148 of the Act the other grounds raised in the Cross Objection of the assessee do not require specific adjudication. 30. As regarding the appeal filed by the Revenue since we have quashed the reassessment order the appeal filed by the Revenue on merits do not require adjudication since the Revenue appeal becomes infructuous and therefore the same is dismissed as infructuous. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 26 31. In the result, Cross Objection of the assessee is partly allowed as indicated above and appeal of the Revenue is dismissed as infructuous. PER AVDHESH KUMAR MISHRA, A.M. I am unable to persuade myself with the following findings mentioned in Para 28 to 31 of the draft order: “28. The ratios of the above decisions squarely apply to the facts of the assessee’s case. Therefore, in view of the aforesaid discussion, we have no hesitation in holding that there was no valid service of notice under section 148 of the Act and as such the reassessment order passed u/s 143(3) r.w.s. 147 of the Act dated 31/12/2016 was passed without mandatory service of notice u/s 148 and is invalid and liable to be set aside and the same is accordingly quashed. Ground No. 2 of the Cross Objection of the assessee is allowed. 29. As we have quashed the reassessment order on legal ground of non-service of notice u/s 148 of the Act the other grounds raised in the Cross Objection of the assessee do not require specific adjudication. 30. As regarding the appeal filed by the Revenue since we have quashed the reassessment order the appeal filed by the Revenue on merits do not require adjudication since the Revenue appeal becomes infructuous and therefore the same is dismissed as infructuous. 31. In the result, Cross Objection of the assessee is partly allowed as indicated above and appeal of the Revenue is dismissed as infructuous.” Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 27 2. In nutshell, the draft order partly allows the Cross-Objection of the assessee and dismisses the appeal of the Revenue by quashing the reassessment order dated 31.12.2016 passed under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter, the ‘Act’) holding it as invalid on the reasoning that there was no mandatory service of notice under section 148 of the Act. 3. For brevity, facts of the case mentioned in the draft order is not reiterated here. In continuation with the facts mentioned in para-5 of the draft order, following crucial facts mentioned on page 01 and 02 of the assessment order, which have direct impact on the core issue raised in the Cross-Objection of the assessee, are worth mentioning hereunder: - “The assessee first time complied with the reassessment proceedings on 21.11.2016 in which it submitted that the return filed should be considered as return in compliance to the notice u/s. 148 of the I. T. Act. Thereafter, notice u/s 143(2) of the Act was issue on 23.11.2016 and the same was duly served upon the AR of the assessee. The assessee was also provided the copy of the reasons recorded for reopening. The case was fixed for hearing on 29.11.2016; however, on the date of hearing neither anybody attended the case nor was any reply received in this office. In the meanwhile, provisional attachment of bank accounts of the assessee was made on 08.12.2016 after the prior approval of Ld. Pr. CIT-9, New Delhi. Thereafter, the assessee on 15.12.2016 filed letter raising objections to the issue of notice u/s 148. The Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 28 objections raised by the assessee were disposed of by passing order on 21.12.2016. From the above, it can be seen that the assessee had not complied with the assessment proceedings, till the second last week of December i.e. time barring month. The notice u/s 142(1) of the Act was issued to the assessee on 21.12.2016 calling the necessary details. In response, to the notice, Sh. Gaurav Jindal, AR of the assessee appeared filed necessary details of the case and the case was discussed with him” 4. From the above extracted portion of the assessment order, following crucial facts relevant for deciding this Cross Objection get emerged as under: a. The notice under section 148 of the Act was served upon the assessee within the stipulated time limit. b. The assessee has filed its Income Tax Return (hereinafter, the ‘ITR’) in response to the notice under section 148 of the Act. c. The assessee has challenged the reason for reopening of its assessment and thus, the inference emerged therefrom is that it has received the copy of the reasons for reopening the case. d. The assessee has participated in reopened assessment proceedings. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 29 5. In view of above facts, it is inferred that the notice under section 148 of the Act had been served on the assessee much before the completion of the assessment. 6. The relevant parts of Sections 148 and 148 of the Act, applicable in the AY 2009-10, are reproduced hereunder: “148. (1) Before making the assessment, reassessment or recomputation under section-147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period,as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section-139 :] Provided that in a case— (a) where a return has been furnished during the period commencing on the 1st day of October, 1991 and ending on the 30th day of September, 2005 in response to a notice served under this section, and (b ) subsequently a notice has been served under sub- section (2) of section-143 after the expiry of twelve months specified in the proviso to sub-section (2) of section-143, as it stood immediately before the amendment of said sub- section by the Finance Act, 2002 (20 of 2002) but before the expiry of the time limit for making the assessment, re- assessment or recomputation as specified in sub-section (2) of section-153 , every such notice referred to in this clause shall be deemed to be a valid notice: Provided further that in a case— Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 30 (a) where a return has been furnished during the period commencing on the 1st day of October, 1991 and ending on the 30th day of September, 2005, in response to a notice served under this section, and (b) subsequently a notice has been served under clause (ii ) of sub-section (2) of section-143 after the expiry of twelve months specified in the proviso to clause (ii) of sub-section (2) of section-143, but before the expiry of the time limit for making the assessment, reassessment or recomputation as specified in sub-section (2) of section-153, every such notice referred to in this clause shall be deemed to be a valid notice. Explanation—For the removal of doubts, it is hereby declared that nothing contained in the first proviso or the second proviso shall apply to any return which has been furnished on or after the 1st day of October, 2005 in response to a notice served under this section. (2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.” “149. (1) No notice under section-148 shall be issued for the relevant assessment year,— ( a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b); (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year. Explanation.—In determining income chargeable to tax which has escaped assessment for the purposes of this sub-section, the provisions of Explanation 2 of section-147 shall apply as they apply for the purposes of that section. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 31 (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section-151.” [Emphasis has been supplied] 7. Vide Cross-objection, the assessee has raised following grounds; “1(i) That on the facts and circumstances of the case, the reasons for issued of notice u/s 148 having been recorded without application of mind and same being vague and sweeping, the assumption of jurisdiction u/s 147 is illegal and not sustainable under the law. (ii) That the reasons being merely based on information from investigation and in absence of any tangible material or independent enquiry to establish income escaping assessment of income, the notice u/s 148 on the basis of borrowed satisfaction is untenable and bad in law. (iii) That the allegation of money launderingbeing factually incorrect and unsubstantiated, the entire basis of reopening and so-called satisfaction regarding income escaping assessment is non-existent and wholly mechanical. 2(i) That on the facts and circumstances of the case, in absence of service of notice u/s 148, the reassessment order is illegal and void-ab-initio. (ii) That the notice u/s 148 having been issued at the wrong address, the same was never served upon the assessee and as such the completion of assessment u/s 147 without service of notice u/s 148 is invalid and non-est. 3. That the notice u/s 148 is without proper approval u/s 151, the same is illegal and void-ab-initio. 4. That on the facts and circumstances of the case, the Ld. CIT(A) has grossly erred in not adjudicating the legal grounds challenging the validity of notice u/s 148 and Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 32 reassessment order u/s 147 of the Income Tax Act, 1961 in absence of satisfaction of essential jurisdictional requirement.” 8. In the draft order, the Ld. Brother has decided only the issue of service of notice under section 148 of the Act raised in the Cross Objection. He has not adjudicated any of the grounds of the Cross Objection other than service of the notice issued under section 148 of the Act. The grounds raised in the Cross Objection have been directly indirectly raised before the CIT(A); however, the same were not adjudicated in the impugned order. The Ld. AR argued the case on only one ground; i.e. serviceof notice under section 148 of the Act raised in the Cross Objection. 9. The appeal of the Revenue challenging therelief of Rs.418,33,73,058/- allowed by the CIT(A) was not heard at all. 10. The Ld. Brother did not consider the decision of Hon’ble Supreme Court in the case of R. K. Upadhyaya 166 ITR 163, which is squarely applicable to this case. The decision of Hon’ble Supreme Court in the case of R. K. Upadhyaya (supra) is reproduced as under: “This is an appeal by the Revenue by special leave and is directed against the judgment of the Gujarat High Court dated August 20, 1973 in a writ petition.The High Court quashed the notice for reassessment issued under section 147(b) of the Income-tax Act, 1961 (hereinafter referred to as ’the Act’) for Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 33 the assessment year 1965-66inspite of service of notice. The assessee respondent has not appeared. TheHigh Court has quashed the notice by accepting the assessee’s contention thatthe action of the Income-tax Officer was barred by limitation prescribed by the Act.There is no dispute that the notice in this case under section 147(b) of the Act was issued by registered post on March 31, 1970, and was received by the assessee on April 3, 1970.To the facts of the case, section 147(b) of the Act applies. The two relevant provisions are in sections 148 and 149 of the Act which provide: \"148(1)--Before making the assessment, reassessment orrecomputationunder section 147, the Income-tax Officer shall serve on the assessee notice containing all or any of the requirements which may be included in a notice under sub- section (2) of section 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section. ....................................... \"149(1) --No notice under section 148 shall be issued, (a)..................................... (b) In cases falling under clause (b) of section 147, at any time after the expiry of four yearsfrom the end of the relevant assessment year. (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151.” The High Court relied upon the decision of this Court in the case of Banarsi Debi &Anr. v. 1. T. 0., District IV, Calcutta &Ors., 53 ITR 100 where the validity of a notice under section 34(1) of the Incometax, Act, 1922 and the scope of section 4 of the Income-tax (Amendment) Act of 1959 by which sub-section (4) was introduced into section 34 were considered. This Court indicated, keeping the provisions of section 34 in view, that there was really no Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 34 distinctionbetween \"issue\" and \"service of notice\". Section 34, sub- section (1) as far as relevant provided thus:- \"34(1)If-- (a)........................................ (b) ............ he may in cases fallingunder clause (a) at any time within 8 years and in casesfalling under clause (b) at any time within four years at the end of that year, serveon the assessee, ……. And may proceed to assessee or reassess such income .............\" Section 34, conferred jurisdiction on the Income-tax Officer to reopen an assessment subject to service of notice within the prescribed period. Therefore, service of notice withinlimitation was the foundation of jurisdiction. The same view has been taken by this Court in Janni v. Indu Prasad Bhat, 72 ITR 595 as also in C.I.T. v. Robert, 48 ITR 177. The High Court in our opinion went wrong in relying upon the ratio of 53 ITR 100 in disposing of the case in hand. The scheme of the 1961 Act so far as notice for reassessment is concerned is quite different. What used to be contained in section 34 of the 1922 Act has been spread out into three sections, being sections 147, 148 and 149 in the 45 1961 Act. A clear distinction has been made out between ’issue of notice’ and ’service of notice’ under the 1961 Act. Section 149 prescribe the period of limitation. It categorically prescribes that no notice under section 149 shall be issued after the prescribed limitation has lapsed.Section 148(1) provides for service of notice as a condition precedent to making the order of assessment. Once a notice is issued within the period of limitations, jurisdiction becomes vested in theIncome-tax Officer toproceed toreassess. The mandate of section 148(1) is that reassessment shall not be made until there has been service. The requirement of issue of notice is satisfied when a notice is actually issued. In this case, admittedly, the notice was issued within the prescribed Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 35 period of limitation as March 31, 1970, was the last day of that period. Service under the new Act is not a condition precedent to conferment of jurisdiction in the Income-tax Officer to deal with the matter but it is a condition precedent to making of the order of assessment.The High Court in our opinion lost sight of the distinction and under a wrong basis felt bound by the judgment in 53 ITR 100. As the Income-tax Officer had issued notice within limitations, the appeal is allowed and the order of the High Court is vacated. The Income-tax Officer shall now proceed to complete the assessment after complying with the requirements of law. Since there has been no appearance on behalf of the respondents, we make no orders for costs.” [Emphasis has been supplied.] 11. Here, in the present case the appellant/assessee has not questioned the issuance of notice within the statutory time period. Only the issue of service has been raised. The details stated above in para-3 and 4 establishes the fact that the notice issued under section 148 of the Act was duly served on the appellant/assessee before completion of the reopened assessment. Hence in view of the above details and the decision of Hon’ble Supreme Court in the case of R. K. Upadhyaya (supra), I am of the considered view that the notice issued under section 148 of the Act issued within the statutory time limit had been duly served on the appellant/assesseebefore completion of the reopened assessment. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 36 12. It is equally a well-settled position on the law of precedent that a ruling of a court is to be read, understood and interpreted in the context of not only the issue that was under adjudication but also in the context of the points of arguments canvassed by both the sides. Though there is plethora of judicial precedents on this aspect, it will suffice here to reproduce the relevant part of the judgment of the Hon’ble Supreme Court in the case of Sun Engineering Works (P) Ltd.; 198 ITR 297, which is self-explanatory: “It is neither desirable nor permissible to pick out a word or sentence from the judgment of this court, divorced from the context the question under consideration and treat it to be the complete law declared by this court. ….”. 13. In the case of UOI &Ors. v. Dhanwanti Devi &Ors; 6 SCC 44, the Hon’ble Supreme Courtobserved as under: “9. …….What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgement. Every judgment must be read as applicable to the particular facts proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. 10. Therefore, in order to understand and appreciate the binding force of a decision is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 37 Law cannot afford to be static and therefore, Judges are to employ an intelligent interpretation in the use of precedents………” [Emphasis has been supplied] 14. The case laws mentioned in the impugned order are held distinguishable on facts and thus, are of no relevance as far as the service of notice is concerned in the present case. 15. In view of the above, the ground no. 2 of Cross Objection questioning the service of notice is held to have no merit and thus, stands dismissed. 16. Other grounds of Cross Objection were not argued by the Ld. AR. The legal issues raised by the appellant/assessee in Form No. 35 had not been adjudicated by the CIT(A), the first Appellate Authority. Therefore, I am of the considered view that the legal grounds, other than the service of notice issued under section 148 of the Act, raised in Form No. 35 need to be adjudicated first by the CIT(A) and thereafter, by the ITAT, if required. Accordingly, I hereby direct the CIT(A) to adjudicate all the legal grounds, other than the service of notice issued under section 148 of the Act, raised in Form No. 35. Keeping in view the above, the Cross Objection of the assessee stand disposed off accordingly. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 38 17. Subject to the finding above and restoring the legal grounds raised in the Cross Objection of the assessee, which have also been raised directly and indirectly before the CIT(A) to the file of the CIT(A) for deciding those grounds afresh; the appeal of the Revenue also needs to be kept alive particularly when the Revenue’s appeal was not heard, by us, on merit. Thus, the above draft order dismissing the appeal of Revenue treating it infructuous, according to me, is not justified particularly when the Cross Objection of the assessee is being kept alive by me. In case the CIT(A), in remitted appeal proceedings, dismisses the legal grounds raised by the appellant/assessee; then the appeal of the Revenue and the appeal/ Cross Objection of the assessee, if filed, require fresh adjudication by the Tribunal. Therefore, I am of the considered view that the appeal of Revenue and Cross Objection of the assessee should be kept alive as of now in the interest of justice or to be heard on merit and to be decided accordingly. 18. In the result, the appeal of the Revenue; ITA No.4651/Del/2018 and Cross Objection of the assessee (C.O. No. 74/Del/2023) are allowed for statistical purpose as above. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 39 PER MAHAVIR SINGH, V.P. OPINION U/S 255(4) OF THE I.T. Act, 1961 By order of Hon’ble President, vide U.O.No.-F.28- Cent.Jd(AT)/2025 dated 17th February, 2025,the undersigned is nominated to adjudicate the difference between the Learned Accountant Member and Learned Judicial Member. 2. The questions on points of difference referred under Section 254(4) of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’), read as under:- “1. Whether on the facts and in the circumstances of the case is the reassessment made u/s 143(3) r.w.s. 147 of the Act is valid in the eyes of law in the absence of service of notice u/s 148 by post and in the absence of proper and valid service of notice by affixture as contemplated under section 282 of I.T. Act and Order V Rule 17 and 20 of CPC. 2. Whether on the facts and in the circumstances of the case was there a valid service of notice u/s 148 of the I.T. Act by affixture so as to assume jurisdiction by Assessing Officer for reopening assessment u/s 147 of the I.T. Act. 3. Whether on the facts and in the circumstances of the case the decision of the Hon'ble Supreme Court in the case of R.K. Upadhyaya (166 ITR 163) is applicable to the facts of the Assessee herein to validate the service of notice u/s 148 of the Act. 4. Whether on the facts and in the circumstances of the caseis it correct to restore the appeal of the Revenue and other legal grounds other than validity of service of notice u/s 148 of the I.T. Act raised by the Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 40 Assessee in its appeal to the Ld. CIT(Appeals) without hearing both the parties and without providing any opportunity to both Revenue as well as Assessee to hear on legal grounds and on merits of the addition/disallowance made by the Assessing Officer.” 3. At the time of hearing before me, learned Counsel for the assessee drew my attention to application filed dated 7th April, 2025 intimating the change of name and address of the assessee, as under:- Name : HighvistaBuildconP.Ltd. Address : 1st Floor, DLF Gateway Tower, R Block, DLF City Phase-III, Gurgaon-122002, Haryana. In support of the same, the Certificate of Incorporation in pursuant to Rule 29 of the Companies (Incorporation) Rules, 2014 has also been filed.In view of this, the name and address of the assessee, as intimated above, is taken on record as learned CIT-DR has not raised any objection to the same. 4. The brief &admitted facts relating to the questions referred to me are that the assessee company Vikram Electric Equipment Pvt. Ltd. existed at the address 346-AS/FL, Lado Sarai, South West Delhi, Delhi-110030 and filing its returns of income showing this address since AY 2015-16. It used to exist earlier at the address 56, Darya Ganj, Delhi and even during relevant AY 2009-10 was operating from the same address and filed its return of income with the Income Tax Department showing this very address.The assessee filed its original return ata loss of Rs.61,96,003/- for AY 2009-10, which was Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 41 accepted u/s 143(1) of the Act. Learned Counsel explained that, as per Revenue, notice under Section 148 of the Act dated 30.03.2016 was issued at (which is wrong address) 86, Darya Ganj, New Delhi - 110 002. Since the assessee company had moved to the new address i.e., 346A, Second Floor, Lado Sarai, Delhi–110 030 but, notice under Section 148 of the Act was issued and sent at the wrong address, which never reached the assessee. Learned Counsel filed copy of acknowledgement of income tax returns for assessment year 2009-10 (filed on 30.09.2009) and for assessment year 2015-16 (filed on 29.09.2015) to confirm the old and new address of the assessee. The AO also issued show cause notice dated 14.10.2016 show causing as to why return of income for assessment year 2009-10 was not filed in response to the notice issued under Section 148 of the Act dated 30.03.2016. This notice was also addressed to the assessee at the address 86, Darya Ganj, Delhi instead of the actual old address 56, Darya Ganj, Delhi – 110 002. This letter never reached to the assessee but was handed over to assessee’s representative Shri V.B. Shukla personally when he visited the office of the AO. This letter dated 14.10.2016 was practically the first communication from the AO regarding initiation of proceedings under Section 147 of the Act by communicating that notice under section 148 of the Act dated 30.03.2016 was issued. But, it was claimed by learned Counsel for the assessee that the assessee was never served upon the notice under Section 148 of the Act till today nor a copy thereof was furnished even after applying for the same under the RTI Act. He narrated that the assessee filed RTI application dated 01.09.2017 to CPIO and Deputy CIT (Coordination)-1 (Admn& CO), Office of the Additional CIT Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 42 (Coordination), Room No.319, C.R. Building, New Delhi asking for the copy of notice issued under Section 148 of the Act by ACIT, Circle 26(2) for assessment year 2009-10 along with proof of dispatch and service on the assessee as recorded in the movement register or any such other records. The PIO i.e., the ACIT, Circle- 26(2), in its reply to RTI application vide letter dated 03.10.2016 stated as, “the information sought by you vide these points has already been furnished in the form of notices and other communications during the assessment proceedings”. Learned Counsel for the assessee stated that this response that notices were furnished in the course of assessment proceedings is untrue in regard to service of the notice issued under Section 148 of the Act. He made statement that no notice under Section 148 of the Act was served upon assessee till today. 5. On the other hand, the learned CIT-DR made submissions that the assessee’s case was reopenedby the AO u/s 147 of the Act on the strength of some information sent to him by the Investigation Wing of the Income Tax Department by issuing notice under Section 148 of the Act dated 30.03.2016 and notice was sent to the assessee on the same date at address 56, Darya Ganj, New Delhi – 110002 vide speed post acknowledgement number ED869391909IN as returned by the assessee in its return of income. It was contended by her that the AO picked up this address from the original return of income for the AY 2009-10 retrieved from the old records for the purpose.As for the service of notice u/s 148 of the Act, she stated as under on Page 3 of his rejection of objection order dated 19.12.2016, the AO has clearly mentioned as, \"in the instant case, Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 43 notice u/s 148 was issued to the assessee after taking prior approval from Pr. CIT-9. Delhi on 30 March, 2016 and on the address given by the assessee in its return of income i.e., 56, Darya Ganj, New Delhi-110002. The notice was issued after the AO duly recorded the reasons for issuing of notice. Further, notice was affixed by the notice server at address-346-AS/FL, Lado Sarai, New Delhi, 110030.” 6. Learned CIT-DR also relied on the decision of Hon’ble Supreme Court in the case of R.K. Upadhayaya Vs. Shanabhai P. Patel – (1987) 166 ITR 163 (SC) and argued that the provisions of Section 148 of the Act provide for service of notice as a condition precedent to making the order of assessment and once a notice is issued within the period of limitation, jurisdiction becomes vested in the AO to proceed to reassess. 7. First of all, I want to answer the issue raised by learned CIT- DR as regards to applicability of the judgment of Hon’ble Supreme Court in the case of R.K. Upadhyaya (supra), it is to be noted that Hon’ble Supreme Court has dealt with the issue of period of limitation by discussing that the scheme of the 1961 Act, so far as notice for reassessment is concerned, is quite different from the provisions of Section 34 of the 1922 Act. It was discussed by Hon’ble Supreme Court by holding, “that Section 34 conferred jurisdiction on the Income-tax Officer to reopen an assessment subject to service of notice within the prescribed period. Therefore, service of notice within limitation was the foundation of jurisdiction. The same view has been taken by this Court in J.P. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 44 Jani v. InduprasadDevshankerBhatt [1969] 72 ITR 595 as also in C.I.T. v. Robert J. Sas [1963] 48 ITR 177. The High Court, in our opinion went wrong in relying upon the ratio of Banarsi Devi v. ITO [1964] 53 ITR 100 in disposing of the case in hand. The scheme of the 1961 Act so far as notice for reassessment is concerned, is quite different. What used to be contained in section 34 of the 1922 Act has been spread out into three sections, being sections 147, 148 and 149. A clear distinction has been made out between 'issue of notice' and 'service of notice' under the 1961 Act. Section 149 prescribes the period of limitation. It categorically prescribes that no notice under section 148 shall be issued after the prescribed limitation has lapsed. Section 148(1) provides for service of notice as a condition precedent to making the order of assessment. Once a notice is issued within the period of limitations, jurisdiction becomes vested in the Income-tax Officer to proceed to reassess. The mandate of section 148(1) is that reassessment shall not be made until there has been service. The requirement of issue of notice is satisfied when a notice is actually issued. In this case, admittedly, the notice was issued within the prescribed period of limitation as 31-3-1970, was the last day of that period. Service under the 1961 Act is not a condition precedent to conferment of jurisdiction in the ITO to deal with the matter but it is a condition precedent to making of the order of assessment. The High Court in our opinion lost sight of the distinction and under a wrong basis felt bound by the judgment in Banarsi Debi’s case (supra). As the ITO had issued notice within limitations, the appeal is allowed and the order of the High Court is vacated.” Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 45 From the above, it is clear that this judgement provides not only the limitation prescribed under Section 148 of the Act but also mandates that the service of notice under Section 148 of the Act is mandatory under Section 148(1), which is a condition precedent to make the order of assessment. Accordingly, there are two principles laid down by the judgement are that clear distinction has been made out between ‘issue of notice’ and ‘service of notice’ under the Act. Section 149 of the Act prescribes limitation that no notice under Section 148 of the Act shall be issued after the prescribed limitation has lapsed. Section 148(1) of the Act provides for service of notice as a condition precedent to making the order of assessment. Once a notice is issued within the period of limitations, jurisdiction becomes vested in the Income-tax Officer to proceed to reassess. But, the pre-condition as mandated by Section 148(1) of the Act is that reassessment shall not be made until there has been service. Hence, in the present case, the issue before me is whether there is a valid service of notice or not, in terms of Section 282 of the Act read with Order V, Rule 17 and 20 of Civil Procedure Code, 1908 (hereinafter ‘the CPC’). 8. I noted that the only dispute before me in this case is of an assessment u/s 147 of the Act where the notice u/s 148 of the Act has not been served upon the assessee even till date. The AO declined to furnish a copy thereof, even under the Right to Information Act, 2005. Fact of the case are that during the period relevant to the AY 2009-10 the assessee company used to exist at the address 56, Darya Ganj, Delhi and the original return for the assessment year under consideration was filed showing therein the Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 46 said address. The assessee shifted from the said address to 346-A, 2nd floor, Lado Sarai, South West Delhi, Delhi-110030 about 2 years back and started filing Income tax returns showing the changed address. This change of address had duly been communicated to the AO as well to ROC as per rules.On the basis of information received from the Investigation Wing of the Department, the AO initiated proceedings u/s 147 of the Act and issued notice u/s 148 of the Act presumably at the address 56, Darya Ganj, Delhi. This presumption is as certain as truth as the next letter dated 14.10.2016, too, was sent at the Darya Ganj, Delhi address but, the AO wrongly mentioned the number of the premises as '86' instead of the correct number ‘56’. Naturally, neither notice u/s 148 of the Act dated 30.03.2016 nor the AO's letter dated 14.10.2016 reached in the hands of the assessee.So, in October 2016, on account of non- service of the letter dated 14.10.2016, the AO contacted the assessee through the authorized representative of the assessee and served a copy of letter dated 14.10.2016 on Shri V.B Shukla of the assessee company on 26.10.2016, personally. The notice u/s 148 of the Act dated 30.03.2016 was never served upon the assessee. Moreover, a copy of the same has not been furnished. The assessee applied for a copy of the notice u/s 148 of the Act under the Right to Information Act, 2005 but the request was declined. 9. After receipt of the AO's letter dated 14.10.2016, the assessee started assisting him in completion of the assessment. A copy of the reasons recorded u/s 147 of the Act was sought vide letter dated 21.11.2016 through which the new changed address of the assessee company i.e., the address 346-A, 2nd floor, Lado Sarai, South West Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 47 Delhi, Delhi-110030 was also communicated to the AO. Consequently, the AO issued notice u/s 143(2) on 23.11.2016 indicating the changed address of the assessee that of Lado Sarai, Delhi therein and enclosing therewith a copy of reasons recorded u/s 147 of the Act. Since then, all correspondence from the office of the AO is being made at the new address of the assessee company.On receipt of a copy of the reasons recorded, detailed objections to the re-opening of assessment were filed on 15.12.2016, pointing out there in that no copy of notice u/s 148 of the Act has been served upon the assessee and that the AO was pursuing the matter at the assessee's patently wrong address. It was not even the old address, as the old address was 56, Darya Ganj, New Delhi, whereas the AO was addressing the letters to 86, Darya Ganj, New Delhi.The AO rejected the objections vide his order dated 19.12.2016 and came out with the plea that the notice u/s 148 of the Act was served by way of affixture at the address 346- AS/FL, Lado Sarai, New Delhi-110030. The above claim of the AO about service of the notice by affixture at the new address of the assessee is not proper due to the following facts as noted:- i. If the AO had the knowledge of new address of the assessee on 30.03.2016 itself, why not the notice u/s 148 of the Act addressed to the assessee on the new address. ii. If the AO had information of the new address, why he was sending the letters even in September, 2016 at the old address and that too mentioning it incorrectly as 86DaryaGanj, New Delhi-110002 instead of 56, Darya Ganj, New Delhi-110002. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 48 iii. If the AO was aware of the changed address of the assessee even in the mid of November, 2016, then why his subsequent letter sent on 16.11.2016 too did not reach the assessee and the AO had to mention in the very first para of his assessment order dated 31.12.2016 that \"A non-compliance notice sent to the assessee on 16.11.2016 for compliance to re-assessment proceedings which again received back to this office with remarks \"bar barjane par office band miltahai. iv. If the claim of AO about of affixture of the notice dated 148 of the Act at the new address is true, then why the notice had to be affixed at the first place and not served upon any employee, when the assessee's office at 346A, Second floor, Lado Sarai, New Delhi-110030 remains open on all working days. The new address of the assessee company was communicated to the AO on 21.11.2016. From thence onward, all notices, letters and communication sent to the assessee are regularly being received at the new address, which shows that the assessee's office at the new address is fully functional and remains open during the office hours. 10. From the above discussion, it is noted that first notice under Section 148 of the Act dated 30.03.2016 was issued at the address 86, Darya Ganj, New Delhi – 110 002. The relevant copy of notice reads as under:- Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 49 Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 50 For issuing this notice, the address noted in form for recording the reasons for initiating for proceedings under Section 148 of the Act and for obtaining the approval of the Addl. CITis as under :- M/s Vikram Electric Equipment Pvt.Ltd., Property 346, AS/FL, Lado Sarai, South West, Delhi The relevant copy of approval is placed on record. 11. Similarly, the ITO (Investigation)-Unit-3, while transmitting the TEP to the AO, vide F.No.ITO(Inv)/Unit-3/Time-Barring/2015- 16/220 dated 29.03.2016, also noted the address as under :- M/s Vikram Electric Equipment Pvt.Ltd. Property 346, AS/FL, Lado Sarai, South West, Delhi Also noted the AO as Circle-26(1), New Delhi. Another notice under Section 148 of the Act dated 31.03.2016 was issued, which was claimed to have been served through affixture by the Revenue at the below given address :- M/s Vikram Electric Equipment Pvt.Ltd. 346-AS/FL, Lado Sarai, New Delhi – 110030. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 51 There are two affixture reports i.e., the first notice was served at the address 56, Darya Ganj, New Delhi – 110 002, and the second at 346-AS/FL, Lado Sarai, New Delhi – 110030. 12. Admittedly, the notice under Section 148 of the Act i.e., one is dated 30.03.2016 and another is dated 31.03.2016. Revenue’s claim is that the notice is issued and served through affixture at correct address i.e., 346-AS/FL, Lado Sarai, New Delhi – 110030. The provisions of Section 282 of the Act ordains that the service of a notice under the Income-tax Act, 1961 may be made by delivering or transmitting a copy thereof, to the person therein named, by post or by courier services as may be approved by the board or in such manner as provided in the CPC for the purpose of service of summon apart from other modes, for which we are not concerned. Admittedly, in the present case, the first notice under Section 148 of the Act was issued and claimed to have been posted through vide speed post acknowledgement number ED869391909IN but, this was addressed to a wrong address i.e., 86, Darya Ganj, New Delhi – 110 002 instead of the correct address (which was old address as per original return of income for assessment year 2009-10, which was also changed and change was intimated to the AO vide letter dated Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 52 07.01.2016) i.e., 56, Darya Ganj, New Delhi-110002. Hence, the first notice cannot be called as served upon the assessee. 13. Coming to the issue of service by affixture at the correct address i.e., 346-AS/FL, Lado Sarai, New Delhi – 110 030, the service should be in terms of Section 282 of the Act as well as in terms of manner laid down in Order V Rule 19A of the CPC. A perusal of the proviso to Rule 19A(1) of Order V of CPC shows that the issuance of summons for service by registered post is not required only where, in the circumstances of the case, the Court considers it unnecessary, otherwise under the said Rule 19A(1), the Court, in addition to, and simultaneously with, for issuance of summons for service in the manner provided in Rules 9 to 19, shall direct the summons to be served by registered post, etc. In the case of Bhagwan Singh Vs. Ram Balak Singh, AIR 1988 (Patna) 166 held that the service of summons in the absence of this or non- compliance of provisions of said Rule 19A becomes invalid. The service by affixture without order of the Court is governed by Order V Rule 17 of CPC and for this, there are two conditions, which are as under:- Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 53 (i) Where the defendant or his agent or member of family, to whom the summons is tendered, refuses to sign the acknowledgement; or (ii) Where the serving officer, after using all due and reasonable diligence, cannot find the defendant who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, etc. Order V, Rule 19 provides that where a summon is returned, the Court shall, if the returned summon under that Rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examining the serving officer on oath, or cause him to be examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it think fit, and shall either declare that the summons have been duly served or order such service as it thinks fit. In case the requirement under Order V, Rule 19, has not been complied with, there cannot be a valid service of a summon as held by Hon’ble Calcutta High Court in the case of Gajendra Kumar Banthia Vs. Union of India(1996) 222 ITR 632 (Cal). Where the service is effected by affixture as provided in Rule 17, the service by affixation has to be proved by Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 54 the Department by showing that the procedure prescribed in that regard has been followed. In the absence of proof of service as required in Rule 17, such service cannot be treated as valid service. 14. It is only in the second part of Rule 17, that exercise of reasonable diligence with a view to trace out the party is relevant. There, the mere fact that the serving officer did not find the party to be served with the notice at his address is not sufficient to establish that he cannot be found. It must be shown not only that the serving officer went to the place at a reasonable time when he would be expected to be present, but also that if he was not found, proper and reasonable attempts were made to find him either at that address or elsewhere. If, after such reasonable attempts the position still was that the party is not found, then and then only a service by affixation could suffice under Rule 17. This view has been held by Hon’ble Supreme Court as unexceptionable in the case of CIT Vs. ThayaballiMullaJeevajiKapasi (1967) 66 ITR 147 (SC). 15. In view of the above proposition of law and facts of the case, I noted that the assessee, vide letter dated 07.01.2016, filed before the Assessing Officer during the course of assessment proceedings Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 55 for AY 2013-14, intimated the new address and even the new address of the assessee company was ascertainable from the return of income filed for AY 2015-16 on 29.09.2015, wherein the address mentioned as “346-AS/FL, Lado Sarai, Delhi – 110 030”. It is also clear from the approval granted by Additional CIT for initiating the proceedings under Section 147 of the Act by issuing notice under Section 148 of the Act dated 30.03.2016 that the correct address is “346 AS/FL, Lado Sarai, South West, Delhi” and, even TEP issued vide F.No.ITO(Inv)/Unit-3/Time Barring/2015-16/220 dated 29.03.2016 also noted the address as “346 AS/FL, Lado Sarai, South West, Delhi”. The Revenue never tried to issue the notice under Section 148 of the Act at the correct address because the assessee’s office at 346, Second Floor, Lado Sarai, New Delhi – 110 030 remains open on all working days and this proves from new address communicated by the assessee to the AO even on 21.11.2016, from thence onward, all notices, letters and communications sent to the assessee are regularly being received at the new address, which shows that the assessee’s office at the new address is fully functional and remains open during the office hours. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 56 16. From the above, it is clear that the assessee never received notice issued by the Revenue u/s 148 of the Actand hence, there is no service under Section 282 of the Act, rather, the Department adopted the alternative mode of service i.e., by way of affixture under Rule 17 of Order V of CPC, without fulfilling the terms of this Rule. Hence, the service by way of affixture by the AO either on the old address i.e., 56, Darya Ganj, New Delhi–110 002 or at the new address i.e., 346-AS/FL, Lado Sarai, New Delhi–110 030, is invalid. Hence, in terms of the above, I agree with the findings of learned Judicial Member quashing the reassessment order passed u/s 147 r.w.s.143(3) of the Act on legal ground of non-service of notice under Section 148 of the Act as raised by the assessee in the cross-objection. 17. Now, in view of the above discussion and legal position, I answer the questions as under:- Question framed by the Bench Answer to the Question 1. Whether on the facts and in the circumstances of the case is the reassessment made u/s 143(3) r.w.s. 147 of the Act is valid in the eyes of law in the absence of service of notice u/s 148 by post and in the absence of proper and valid service of notice by affixture as contemplated under section 282 of In the given facts and circumstances of the case as discussed above, the question is answered in the negative. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 57 I.T. Act and Order V Rule 17 and 20 of CPC. 2. Whether on the facts and in the circumstances of the case was there a valid service of notice u/s 148 of the I.T. Act by affixture so as to assume jurisdiction by Assessing Officer for reopening assessment u/s 147 of the I.T. Act. In the given facts and circumstances of the case as discussed above, the question is answered in the negative. 3. Whether on the facts and in the circumstances of the case the decision of the Hon'ble Supreme Court in the case of R.K. Upadhyaya (166 ITR 163) is applicable to the facts of the Assessee herein to validate the service of notice u/s 148 of the Act. In the given facts and circumstances of the case as discussed above, the service of notice under Section 148 of the Act was not valid. Hence, the condition precedent for conferment of jurisdiction for framing of assessment was not validly assumed by the AO. The answer to this question is in the negative. 4. Whether on the facts and in the circumstances of the case is it correct to restore the appeal of the Revenue and other legal grounds other than validity of service of notice u/s 148 of the I.T. Act raised by the Assessee in its appeal to the Ld. CIT(Appeals) without hearing both the parties and without providing any opportunity to both Revenue as well as Assessee to hear on legal grounds and on merits of the addition/disallowance made by the Assessing Officer. In the given facts and circumstances of the case as discussed above, this question has become academic and hence, needs no answer. 18. In terms of the above, I concur with the decision of learned Judicial Member quashing the reassessment framed under Section 147 read with Section 143(3) of the Act in the absence of a valid service of notice issued by the AO under Section 148 of the Act. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 58 19. The matter shall now be placed before the regular Bench for passing appropriate order in accordance with the majority opinion. PER C.N. PRASAD, J.M. The appeal and cross objection are filed by the Revenue and Assessee against the order of the Ld. CIT(Appeals)-32, New Delhi dated 15.12.2017 for the AY 2009-10. The Revenue in its appeal challenged the order of the Ld. CIT(Appeals) in deleting the addition made u/s 68 of the Act and the assessee in its cross objection challenged the validity of reopening of assessment on the ground that notice u/s 148 of the Act was not served and therefore reassessment order passed u/s 143(3) r.w.s. 147 is illegal and void ab initio. Upon hearing the appeal of the Revenue and the cross objection of the assessee, the Judicial Member partly allowed the cross objection filed by the assessee holding that there was no valid service of notice u/s 148 of the Act and the reassessment order passed u/s 143(3) r.w.s. 147 of the Act dated 31.12.2016 was passed without mandatory service of notice u/s 148 and the reassessment is invalid and liable to be set aside and accordingly the same was quashed. Since the cross objection was allowed holding that the assessment was bad in law for non-service of notice u/s 148 the appeal of Revenue was held to be infructuous. The Hon’ble Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 59 Accountant Member opined that there was service of notice u/s 148 and accordingly dismissed ground no.2 of the cross objection and the Revenue appeal was set aside to the Ld. CIT(Appeals). All other grounds in Cross Objection were also restored to CIT(A). In view of difference of opinion between the Members constituting the Bench, a reference was made u/s 255(4) of the I.T. Act to the Hon’ble President, ITAT and the Hon’ble President vide order dated 17.02.2025 nominated Third Member to decide the reference. The Ld. Third Member vide order dated 08.08.2025 concurred with the view of the Judicial Member. Consequent to the opinion of the Third Member, cross objection of the assessee is partly allowed and the appeal of the Revenue is dismissed as infructuous. Order pronounced in the open court on 22/08/2025 Sd/- Sd/- (AVDHESH KUMAR MISHRA) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 22.08.2025 *Kavita Arora, Sr. P.S. Printed from counselvise.com I.T.A. No. 4651/Del/2018 & CO No.74/Del/2023 60 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI Printed from counselvise.com "