9911796707
TMI Blog2012 (6) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal, the department has taken a stand that the notice issued u/s 143(2) and 115WE(2) of the Act were validly served. The AO completed the assessment u/s 144 of the Act. The AO also passed an order u/s 115WF of the Act. These are two separate orders passed by the Assessing Officer. The ld. CIT (A) passed two separate appellate orders in two separate appeals arising from assessment order passed u/s 144 of the Act and order passed u/s 115WF of the Act respectively. The department should have filed two separate appeals in respect of two separate orders passed by AO u/s 144 of the Act and u/s 115WF of the Act. In the ground of appeal department has taken both these issues together. In the course of hearing of this appeal, this position was pointed out to the ld. Departmental Representative, and after discussion with him it was decided to treat this present appeal only with reference to the assessment order passed u/s 144 of the Act. The department shall be at liberty to file a separate appeal in respect of order passed u/s 115WF of the Act if so advised. 4. We, therefore, proceed to decide as to whether notice issued u/s 143(2) has been validly served upon the assessee within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was thus, contended that statutory notice u/s 143(2) dated 11.10.2007 issued at 44, Rajendra Bhawan, Rajendra Place, New Delhi was not correct, and service of notice by affixture at that address was not in accordance with the facts of the case and the provisions of law contained in that behalf. 8. Apart from affidavit given by the assessee, the following documents were furnished to support the assessee' s contention before the ld. CIT(A): - (i) "Copy of intimation in Form No. 18 to ROC (Change of Regd. Office address). (ii) Copy of letter from Income Tax Circle 6(1)/2007- 08/139 dated 01.10.2007 received on 9.10.2007, demanded original TDS certificate and copy of covering letter No. MCT/AY/0607/001 submitted on 11.2007. (iii) Copy of Income Tax Return Acknowledgement dated 25.11.2006. (iv) Copy of Audit Report, Balance Sheet and Profit/Loss Account. (v) Copy of Tax Audit Report. (vi) Copy of 56G Report. (vii) Copy of last assessment order for A. Y. 2005-06 processed u/s 143(3) dated 30.03.2007. (viii) Copy of FIRC received at our Registered Office address." 9. In the light of submission of the assessee, documents furnished and facts narrated by the AO in the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hort cut was taken by the Inspector who resorted to affixation, which was carried out in the absence of any independent witness. It appears to us that the entire exercise of sending the Inspector and resorting to affixation was carried out only to ensure that the case does not become time-barred, knowing fully well that the notices have been issued at the very last minute and could not have been served on the assessee without undertaking some out of the ordinary exercise as has been done in the present case." 5.0 In the present case, I am of the opinion that in view of the facts above and the categorical stand of the assessee supported by an affidavit that he did not receive any notice; the burden was on the AO to prove that it was dispatched to the correct address. In this case, it was not even doing something out of the ordinary; a mere glance at the address on the return or last years record or a little presence of mind when the assessee responded to a TDS verification notice could have sorted the issued. A subsequent discussion with the assessee 's counsel by the AO led to a noting dated 13.3.09 by the AO. "Shri Anil Khanna, CA & AR along with Shri Sanjay Thakur auditors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued a notice u/s 143(2) on 11.10.2007 at 44, Rajendra Bhawan, Rajendra Place, New Delhi. This notice issued u/s 143(2) was not served upon the assessee but returned back undelivered with the postal remark that "no such office in 44, Rajendra Bhawan, Rajendra Place, New Delhi". The AO therefore, deputed the Inspector and process server to serve the notice by affixture. Affixture of this notice was done by process server in the presence of an Inspector Shri Amal Pal Singh deputed by the AO. In the light of these facts, we have to see as to whether notice issued u/s 143(2) at 44, Rajendra Bhawan, Rajendra Place, New Delhi and, thereafter, service of this notice by affixture at this address was valid. The AO has stated in the assessment order that address of 44, Rajendra Bhawan, Rajendra Place, New Delhi was furnished by the assessee in the return of income. But, on perusal of return of income and the assessment records, we find that assessee has not given this address of 44, Rajendra Bhawan, Rajendra Place, New Delhi in the return of income filed on 25.11.2006 and in the physical return filed on 7.12.2006. The actual address mentioned by the assessee in the return of income is 1-GF, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly show that the correct address of the assessee lastly known to the department on 11.10.2007 when notice u/s 143(2) was issued was 1-GF, AGCR Enclave, Karkarduma, Delhi. We, therefore, hold that issue of notice u/s 143(2) at 44, Rajendra Bhawan, Rajendra Place, New Delhi was not valid. This notice u/s 143(2) has not been issued at the correct last known address of the assessee. Therefore, issuing the notice at the said address and serving the notice by affixture at that address cannot said to be valid. In this case, the AO should have sent the notice at the last known address of the assessee available as on 11.10.2007 i.e. 1-GF, AGCR Enclave, Karkarduma, New Delhi, and if the notice sent at this address would have returned back, the service of notice by affixture at this address as per law would not have been any irregularity. 13. In the light of the discussions made above, we therefore, hold that the notice u/s 143(2) issued on 11.10.2007 and then served by affixture at 44, Rajendra Bhawan, Rajendra Place, New Delhi was not valid, and on the basis of that notice, no assessment proceedings could have been validly initiated. 14. In the assessment order, the AO has also claimed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport submitted by process server stating that he affixed the notice at 44, Rajendra Bhawan, Rajendra Place, Delhi in the presence of Inspector of Income Tax, Shri Amal Pal Singh. On the basis of this report, DCIT declared the service to be valid vide his note dated 31.10.2007. In the service report it has been mentioned that notice has been served by the affixture on 11.10.2007. Since the affixture of notice has not been made in accordance with the aforesaid provisions of Order V, Rule 17 of the Code of Civil Procedure, 1908, the service of notice by affixation cannot held to be valid. In this connection, reliance may be placed upon the decision of Hon'ble High Court of Punjab & Haryana in the case of Commissioner of Income Tax Vs. Naveen Chander (2010) 323 ITR 49 (P&H), where it has been held that when service was sought to be affected by affixation which was required to be done in accordance with the procedure laid down by the order V Rule 20 of CPC but requirements of order V Rule 20 of CPC were not complied with, block assessment proceedings in pursuance to such notice were not valid. In this case it was held as under (Extracted from head note): - "Held that, the Tribunal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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