9911796707
TMI Blog1982 (11) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Act, 1961. In this ex-parte assessment made by the ITO the total income was determined at Rs. 30,000 by assessment order dt. 28th Jan, 1977. When the matter went up in appeal, the AAC held that there was no material or evidence on the record on the basis of which the estimate of income made by the ITO could be justified. The AAC, therefore, set aside the assessment with the direction to the ITO to reframe the same after bringing on record the relevant material, survey record etc. for estimating the income and after giving the opportunity of being heard to the assessee. Aggrieved by this order of the AAC, the assessee has come up in the present appeal before me. 3. The assessee s ld. counsel, Shri Purohit submitted that neither any ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Proceeding further Shri Purohit submitted that a notice u/s 142(1) can only be issued where either there is a return of income filed by the assessee or there is a valid service of a notice u/s 139(2) or 148 and none of these conditions are met in the case under consideration here. He, therefore, submitted that even the notice u/s 142(1) was ab initio invalid. In any case, according to Shri Purohit, the default of notice u/s 142(1) has been held by the AAC in the appeal against the ITO s action u/s 146 to be properly explained and, therefore, on account of this default, there is no question of making the assessment u/s 144. Summing up, Shri Purohit vehemently argued before me that since the assessment under consideration here was made wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment) Act, 1975, which came into effect from 1st April,1976. The relevant provisions of ss. 139(2) and 142(1) as they then existed are reproduced as follows; "139(2) : In the case of any person who, in the Income-tax Officer s opinion, is assessable under this Act, whether on his own total income or on the total income of any other person during the previous year, the Income-tax Officer may, before the end of the relevant assessment year, serve a notice upon him requiring him to furnish, within thirty days from the date of service of the notice, a return of his income or the income of such other person during the previous year, in the prescribed manner and setting forth such other particulars as may be prescribed," "142(1) : For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmons issued by a Court under the Code of Civil Procedure. For service by post, s. 27 of the General Clauses Act is very clear that the service shall be deemed to be effected only where a notice is sent properly addressed, prepaid and posted by registered post. Viewed in this context not only there is no material to show that the notice u/s 139(2) was sent by registered post, even the order of the AAC mentions that the notice was sent under certificate of posting and even the postal receipt of the notice having been sent under certificate of posting could not be shown to me by the ld. I have, therefore, no hesitation in coming to the conclusion that there was no valid service of the notice u/s 139(2). No return of income was also filed till ..... X X X X Extracts X X X X X X X X Extracts X X X X
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