2010 (2) TMI 155 - HC - Income Tax

Block assessment- Held that- dismissing the appeal, that the notice under section 158BD of the Income Tax Act, 1961 which had been sent as a registered letter was received back unserved and there after service was sought to e effected by affixation which was required to be done in accordance with the procedure laid down in the code of Civil Procedure, 1908. However in the report of inspector notice server, who claimed to have affixed the notice, there was no evidence of any independent local person having been associated with the identification of the place of business of the assessee. In fact such report was not witnessed by any person at all. Evidently it was clear violation of the mandate of rule 17 of Order V of the Code of Civil Procedure, which lays down the procedure to serve notice by affixture. There had been no valid service of notice issued under section 15BD upon the assessee. Consequently, the assessment proceeding were not valid.

Issues:
1. Validity of service of notice under section 158BD for the block period.
2. Tribunal's decision on the service of notice and its compliance with legal procedures.
3. Absence of finding regarding service of notice to confer jurisdiction.
4. Dismissal of appeal based on lack of compliance with legal requirements.

Issue 1: Validity of service of notice under section 158BD for the block period.
The Revenue challenged the order passed by the Tribunal regarding the service of notice under section 158BD of the Income-tax Act, 1961. The Revenue raised substantial questions of law concerning the service of notice, specifically focusing on the method of service and the objections raised by the assessee. The Tribunal emphasized the importance of proper service to confer jurisdiction, citing the provisions of the Code of Civil Procedure. It highlighted the necessity of following the prescribed procedure for serving notices, including proper identification of the location and authentication of the report by independent individuals. The Tribunal found the service of notice by affixture to be invalid due to non-compliance with the procedural requirements, ultimately leading to the conclusion that there was no valid service of notice on the assessee.

Issue 2: Tribunal's decision on the service of notice and its compliance with legal procedures.
The Tribunal's decision revolved around the fundamental controversy of whether the notice under section 158BD was validly served on the assessee through affixture. It analyzed the report of the Inspector/notice server, noting the absence of involvement of any local person in identifying the business premises of the assessee and the lack of witness to the report. The Tribunal deemed this a clear violation of the procedural rules for serving notices by affixture as outlined in the Code of Civil Procedure. By emphasizing the failure to fulfill the requirements of the Code, the Tribunal concluded that the assessment proceedings resulting in the order dated June 27, 2003, were legally flawed and set them aside, allowing for the issuance of a fresh notice if authorized by law.

Issue 3: Absence of finding regarding service of notice to confer jurisdiction.
The judgment highlighted the absence of a finding concerning the service of notice to confer jurisdiction. This omission indicated a significant deficiency in establishing the validity of the notice served under section 158BD, which was crucial for initiating the assessment proceedings. The lack of a clear determination on this matter raised doubts about the legality and jurisdiction of the assessment process.

Issue 4: Dismissal of appeal based on lack of compliance with legal requirements.
The appeal made by the Revenue was dismissed by the Court due to the lack of compliance with legal requirements regarding the service of notice under section 158BD. The Court rejected the Revenue's argument based on the alleged order sheet entry acknowledging the notice, emphasizing that the Tribunal's findings on the non-compliance with procedural rules were factual and legally sound. The Court concluded that no substantial question of law arose for determination, leading to the dismissal of the appeal.

This detailed analysis of the judgment from the Punjab and Haryana High Court underscores the significance of proper service of notices in legal proceedings and the adherence to procedural requirements to ensure the validity and legality of assessment processes.

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