9911796707
TMI Blog1985 (7) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... and 1967-68. In the remaining appeals the Reenue has assailed the order of the AAC dt. 10th June, 1981 whereby he cancelled the penaty ordrs passed by the WTO under s. 18(1)(a) for the aforesaid assessment years. 3. The assessee is an individual. For the assessment years under consideration the original assessment were completed by the WTO on 28th Aug., 1967, 28th Aug., 1968, 29th Aug., 1967, 25th March, 1968 and 25th March, 1968 respectively. Subsequently, it was found by the WTO that the assessee is the owner of the land at Prakash Bazar, Tinsukia under Dag. No. 1739 and Patta No. 349. The value of this land was not disposed in the original returns. As in the opinion of the WTO the value of this land escaped assessment for failure on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for all the five assessment years were served upon one Shri D.C. Sharma who according to the assessee, was not competent to receive the notice on behalf of the assessee. It was further held by the AAC that Shri D.C. Sharma was not one of these persons specified in order 5, r. 15 of C.P.C. on whom a notice could validly be served under certain circumstances. He also found that there is nothing one the record to suggest that Shri D.C. Sharma had been empowered to act as an agent of the assessee. Thus, in the opinion of the AAC requirement of the statute had not been fulfilled and, therefore, reassessment proceedings were invaliated. So the reassessment orders passed by the WTO were cancelled. 6. The WTO also initiated penalty proceedings fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay on the assessee to prove that notice under s. 17 served upon Shri D.C. Sharma did not reach him or were not handed over to him by D.C. Sharma. This onus, in the opinion of the ld. Departmental Representative, could not be discharged by the assessee. It was, thus, urged that the AAC was wholly unjustified in cancelling the reassessment orders as well as the penalty orders passed by the WTO. 8. The ld. authorised representative for the assessee, on the other hand, fully support the orders of the lower appellate authority. The assertion made on behalf of the Revenue that the assessee and Shri D.C. Sharma are partners in the same firm was stoutly refuted on behalf of the assessee. It was further submitted that notice under s. 17 were not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served on Shri D.C. Sharma aforesaid as has been noted by the AAC in his order dt. 9th June, 1981. But this fact itself is not sufficient to warrant a conclusion that Shri D.C. Sharma has been authorised by the assessee to receive notices on his behalf. It is not the case of the Department that the assessee and Shri D.C. Sharma are in any way related to each or that they reside in the same premises. Also, the Revenue has not been substantiated the contention raised before us that the assessee and Shri D.C. Sharma are partners in the same firm. There is no material available on record which could legitimately land us to the conclusion that Shri D.C. Sharma had expressed or implied authority from the assessee to receive notices on his behalf. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.P.C. held that there was no valid or legal service of notice on the assessee. Under Order 5, r. 15, C.P.C. service may be effected on any adult male member of family of the defendant who is residing with him. In the instant case, we are not faced with such a situation. In the instant case, the contention of the Revenue is that the assessee was served through his agent and, therefore, the order 5, r. 12, C.P.C. would apply. 12. In the cross objections filed by the assessee the only objection raised by the assessee is that the AAC should have allowed relief on all other grounds as argued before him. However, at the time of hearing of the appeals and the cross objections, we were not addressed on this ground. No material was placed before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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