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TMI Blog2012 (11) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... anceling the assessment, the Ld. CIT(A) has failed to appreciate that in the absence of any new address of the assessee, service was rightly effected through affixture on the last given address and has further failed to appreciate that the demand notice and challan alongwith copy of assessment order etc. were also served through affixture and the same were duly acknowledged by the assessee. 3. It is prayed that the order of the Ld. CIT(A) be set aside and that of the Assessing Officer be restored." 2. In the C.O. the assessee has raised following grounds of appeal: "1. The Ld. AO erred in making addition of initial capital of the partners of Rs.15,50,000/- without appreciating the fact that business of the firm had just started and the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same, neither the assessee nor his authorized representative attended the proceedings nor filed adjournment and the AO completed the assessment ex-parte under section 144 of the Act. 4. The Ld. CIT(A) has wrongly passed the impugned on the ground that neither the notice server nor the Inspector who has signed affixture order dated 20.10.2006 had mentioned that they had identified the house in which the assessee firm carried on the business. There is no endorsement of any other person having identified the known business/office premises of the assessee where the notice was affixed. He stated that the Ld. CIT(A) has wrongly followed order of this Bench and cancelled the assessment in dispute. 5. The Ld. DR relied upon the order passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by this Bench in the case of ITO vs. Sh. Satnam Singh, in ITA No.436(Asr)/2008 (supra) and C.O. No.58(Asr)/2008 (arising out of ITA No.436(Asr)/2008) dated 7th May, 2010. This Bench has held that the AO has not served proper notice on the assessee as required under order V Rule 9 of the Code of Civil Procedure 1908. We also hold that the affixture in dispute is not complete unless the affixture is made in the presence of two persons by whom the house was identified and under whose presence copy was affixed. We have seen the assessment record especially order passed u/s 143(2) dated 20.10.2006 whereby Sh. Ghansham Sharma, ITO, Nakodar, has ordered for affixture upon M/s. Charan & J.K. Finance Company, Nurmahal Road, Nakodar, advising Sh. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed. As per record, the address of the assessee-firm on the return is "M/s. Charan & J.K. Finance Company, Nurmahal Road, Nakodar. We find that the serving officer did not mention the names and addresses of the persons who identified the place of business of the assessee nor he mentioned that he personally knew the place of the business of the assessee. Thus, the service of notice must be held to be not in accordance with law. We are of the considered opinion that notice u/s 143(2) of the Act, has not been validly served upon the assessee, as discussed above and the ld. first appellate authority has passed the impugned order on the basis of the order of this Bench in the case of ITO vs. Sh. Satnam Singh, in ITA No.436(Asr)/2008 (supra) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, in the case of V.R.A. Cotton Mills (P) Ltd. vs. Union of India and others in CWP No.18193 of 2011 dated 27.09.2011 (supra), we have thoroughly gone through the said decision and we are of the view that the facts of the present case and the case relied upon by the Ld. DR are totally different because the issue before us in the present appeal is to decide whether service made by affixture in absence of two witnesses is as per order V Rule 9 of the CPC. But in the case of V.R.A. Cotton Mills (P) Ltd. vs Union of India (supra), the said issue was not there before the Hon'ble Punjab & Haryana High Court. Therefore, the decision in the case of V.R.A. Cotton Mills (P) Ltd. vs. Union of India and others (supra), cannot be made applicable in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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