2007 (9) TMI 297 - AT - Income Tax

Prayer for Quashing the Assessment Order - Absence of mandatory service of notice u/s 143(2) - Best judgment order passed u/s 144 - Validity of Notice by affixture - HELD THAT - According to the reverse of the notice u/s 143(2) the notice server had the knowledge that the assessee was residing in 55/28 Sector, Faridabad; since this address has been noted therein and despite having such knowledge, the notice was served by affixture on the Kalkaji address. This clearly shows that reasonable diligence was not shown by him i.e. the serving officer. When he knew that the assessee had moved to Faridabad from Kalkaji he ought to have proceeded to Faridabad o serve the notice. Thus, the contention based on r. 17 is also to be upheld. There is no evidence to show that the notice server (Shri Babulal) was required to file an affidavit or that he was examined by the AO on oath. Such procedural irregularities do invalidate the service of the notice as held by the Kerala High Court in M.O. Thomas vs. CIT 1962 (2) TMI 88 - KERALA HIGH COURT . It is also seen that no reasonable attempts were made by the AO or the serving officer to find the assessee before serving the notice by affixture. Thus, we are of the view that the notice served on the assessee on 31st Oct., 2002 in its Kalkaji address was not validly served as required by s. 282(1) of the IT Act. There is no acknowledgment on record. There is no other evidence from which it can be definitely asserted that the notice was served on the assessee at the aforesaid address. The record produced before us does not contain any order-sheet entry on 8th Nov., 2002, the date on which the assessee was required to appear before the AO by the notice issued on 25th Oct., 2002 by registered post. This is one pointer to the fact that the said notice was not served on the assessee. Hence, we hold that there is no valid service of notice on the assessee u/s 143(2) either by affixture or by post. In this situation, we have no option but to quash the assessment on the basis of the judgments of the Hon'ble Delhi High Court in Lunar Diamonds 2005 (3) TMI 33 - DELHI HIGH COURT , Vardhman Estates (P) Ltd. 2006 (9) TMI 128 - DELHI HIGH COURT and Bhan Textiles 2006 (9) TMI 129 - DELHI HIGH COURT . We direct accordingly and allow ground Nos. 2 and 3. In the result, the assessment is cancelled and the appeal is allowed.

Summary

Issues: Validity of assessment based on service of notice under Section 143(2) of the IT Act.

Analysis:
1. The appeal pertains to the assessment year 2001-02 and challenges the best judgment order passed under Section 144 of the IT Act.
2. Grounds 2 and 3 argue that the assessment should be quashed due to improper service of notice under Section 143(2) within the statutory period.
3. The Tribunal examined the service of notice under Order 5, Rule 20 of the CPC, emphasizing the requirement for a court order for service by affixture.
4. The Tribunal noted that in the absence of a court order, service by affixture was invalid, citing precedents emphasizing the necessity of clear satisfaction by the Assessing Officer for such service.
5. Additionally, the Tribunal found that due diligence was lacking in serving the notice at the correct address, indicating a failure to comply with Rule 17 of Order 5 of the CPC.
6. Rule 19 of Order 5 mandates verification of the serving officer's affidavit in case of notice return, which was absent in this case, further invalidating the service.
7. Considering the procedural irregularities and lack of valid service, the Tribunal concluded that the notice served on the assessee was not valid under Section 282(1) of the IT Act.
8. The Tribunal also addressed an alternative contention regarding a notice sent by registered post, highlighting the absence of evidence of service due to the lack of acknowledgment or order-sheet entry.
9. Consequently, the Tribunal quashed the assessment based on the absence of valid notice service, citing judgments of the Hon'ble Delhi High Court.
10. Grounds 4 to 8 challenging additions and disallowances were not decided due to the quashing of the assessment.
11. Ground 9 concerning interest under Section 234B was deemed consequential to the decision on grounds 2 and 3, leading to the cancellation of the assessment and allowing the appeal.

This comprehensive analysis highlights the procedural irregularities in the service of notice under Section 143(2) of the IT Act, leading to the quashing of the assessment by the Tribunal based on legal precedents and statutory provisions.