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TMI Blog2013 (11) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... 07,303/- u/s. 41(1) of Income Tax Act. 3. On the Facts and circumstances of the case and in Law the Ld. ACIT as well as Commissioner of income Tax (A) erred in holding that the loose paper found from third party as per Annexure All pertaining to the appellant company and failed to appreciate the fact that nowhere in the said loose paper the name of the appellant company is appearing . 4. On the Facts and circumstances of the case and in Law the Ld. ACIT as well Commissioner of Income Tax (A) erred in relying on the loose papers found from the third party and without recording any reasons, the Ld. ACIT erred in holding that the transactions appearing in the said loose papers is pertaining to the appellant. 5. On the Facts and circumstances of the case and in Law the Ld. ACIT erred in making an assessment u/s. 153(C) whereas the original notice have been allegedly issued u/s. 153A. ITA No. 6837/Mum/2010 (by the revenue) 2.1. The revenue has raised the following grounds in this appeal: 1) "On the facts and in circumstances and in Law, the Ld. CIT(A) erred in holding that the statutory notices were not served on the assesses when the said notices were duly served following the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Income Tax(Appeals) upon which the Commissioner of Income Tax(Appeals) issued a remand order inviting comments of the Assessing Officer on the additional evidence filed by the assessee. Since the assessee raised the issue of validity of the notice issues u/s 153A and u/s 142(1) of the IT Act by affixture only, the Commissioner of Income Tax(Appeals) held that the Assessing Officer has not followed the procedure as provided u/s 282 of the I T Act r.w. Rule 17 of Order V (Rule 20)of the Code of Civil Procedure, 1908 and accordingly, decided the issue of validity of notice in favour of the assessee. The revenue has challenged the order of the Commissioner of Income Tax(Appeals) inter alia with respect to the finding that holding the notice not properly served in ground no.1. 4. Since the issue of validity of notice u/s 153A and u/s 142(1) goes to the root of the matter; therefore, we first take up this legal issue for consideration and adjudication. 5. The ld DR has submitted that the Commissioner of Income Tax(Appeals) has decided the issue without considering the relevant facts about the steps taken by the Assessing Officer for service of notice u/s 153A and 142(1) through r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) for the Assessment Year 2001-02, then the order of the Commissioner of Income Tax(Appeals) for the Assessment Year 2006-07 cannot be challenged. It is settled proposition of law that principle of res-judicata cannot be applied in the matter of income tax. Every assessment year is a separate unit. Even if the revenue has not challenged the finding of the ld Commissioner of Income Tax(Appeals) for the Assessment Year 2001-02, the same would not operate as a binding precedent for the Assessment Year 2006-07. There may be various reasons including tax effect for not challenging the order of the Commissioner of Income Tax(Appeals) for the Assessment Year 2001-02. Therefore, we do not find any merit in the objection of the ld AR when both the assessee as well as the revenue are in appeal against the order of the Commissioner of Income Tax(Appeals)on the other isuse for the Assessment Year 2006-07. Further, the facts as brought before us were not considered by the Commissioner of Income Tax(Appeals); therefore, the issue is required to be adjudicated after considering the relevant fact did exist on record. 6.1. The Commissioner of Income Tax(Appeals) has observed in the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verse inference against the Assessing Officer when these facts are not mentioned in the remand report. 7. In view of the above facts and circumstances of the case, we are of the considered opinion that the issue of validity of notice requires a proper examination and consideration of the relevant facts and records. Accordingly, we set aside this issue to the record of the Commissioner of Income Tax(Appeals) to decide the same afresh after considering the relevant facts on record. 8. Both the assessee as well as the revenue have challenged the order of the Commissioner of Income Tax(Appeals) on merits. 9. It is to be noticed that the assessment has been framed exparte as the assessee did not appear. On appeal, the Commissioner of Income Tax(Appeals) though issued remand order when the assessee filed additional evidence; however, the Assessing Officer, in the remand report has objected against the admission of the additional evidence without examination/verification or giving any comments on the same. 9.1. Since the additional evidence has not been examined by the Assessing Officer; therefore, in the interest of justice and in view of the fact that the issue of validity of the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice on the appellant company or on the official liquidator by post or as if it were summons issued by a Court under the Code of Civil Procedure, 1908 (V of 1908). Such notice should have been addressed by him to the official liquidator or to the person who manages or controls company's affairs. The Assessing Officer has not done his job in accordance with the Section 282 of the Act. In fact, he not sent any of the notices by post or through a process server. He has adopted only the mode of substituted service by way of affixture. Assessing Officer has also not followed order V, Rule 17 of the Code of Civil Procedure, 1908, which mandates that the substituted service by affixture to be adopted only if the person refuses to sign the acknowledgement, or the serving officer after using all due and reasonable diligence, cannot find the defendant who is absent from his residence etc. In this case there is nothing on record to prove that the service of notice u/s.153A or u/s.142(1) was made by post or through process server or after following the due procedure as explained in Section 282 read with Rule 17 of order V of the Code of Civil Procedure, 1908. Therefore, the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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