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TMI Blog2014 (12) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... issued and served on the assessee before completion of assessment. Due to non-compliance of statutory notice u/s.143(2), the assessee has filed objection against the jurisdiction, vide letter dated 10-10-2012 submitted at the office of AO on 2-11-2012 in accordance with the provisions of Section 292BB of the Act. As per learned AR the objection raised by the assessee has not been disposed by the AO and he proceeded with the assessment. The basic thrust of learned AR to substantiate the prima facie case in assessee's favour for grant of stay was non-service of notice u/s.143(2), which goes to the root of validity of the assessment so framed. 3. As the issue of notice u/s.143(2) goes to the root of validity of the assessment so framed, the bench considered it appropriate to hear this issue and decide the appeals on merits. Accordingly, learned DR was directed to produce the assessment records. The case was adjourned to 9-9-2014 for allowing DR to produce the necessary assessment records. Assessment records were produced by learned DR on 9-9-2014 which were examined by the Bench and matter is now decided on legality of the assessment so framed u/s.143(3) r.w.s.147 without service of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s report dated 27-7-2012, there was no valid service by affixtures insofar as neither there is mention of any name and address of the witnesses who have identified the house of the assessee and in whose presence the notice was affixed. He contended that in case of service of notice by affixtures, the serving officer should state in his report the name and address of the person by whom house or premises were identified and in whose premises copy of summon was affixed and these facts should also be verified by an affidavit of serving officer, otherwise such service should not be accepted to be legally valid service of notice u/s.143(2). For this purpose, reliance was placed on the decision of Hon'ble Supreme Court in the case of CIT Vs. Ramendra Nath Ghosh, 82 ITR 888. 8. In view of the above factual position, we have to decide whether there was service of notice u/s.143(2) much less a proper service as per Rule 17 of Order V of CPC, which requires that before service of notice by affixture, notice server/service officer must make diligent search for person to be served and, he, therefore must take pain to find him and also to make mention of his efforts in report. The serving offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Assistant Commissioner of Income-tax vs. Hotel Blue Moon reported in [2010] 321 ITR 362 has considered the very issue. The Apex Court held that the Assessing Officer has to necessarily follow the provisions of section 142 and sub-sections (2) and (3) of section 143. It did not accept the submission of the Revenue that the requirement of the notice under section 143(2) can be dispensed with and the same is mere procedural irregularity. In the words of the Apex Court, it is held as under: "16. The case of the revenue is that the expression 'so far as may be apply' indicates that it is not expected to follow the provisions of section 142, sub- sections(2) and (3) of section 143 strictly for the purpose of block assessments. We do not agree with the submissions of the learned counsel for the revenue, since we do not see any reason to restrict the scope and meaning of the expression ' so far as may be apply' . In our view, where the Assessing Officer in repudiation of the return filed under section 158BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of section 142, sub-sections (2) and (3) of section 143." 11. During the course of hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her service of notice by affixture was proper in terms of provisions of Order V, Rule 17 to 20 of CPC. As per provisions of Section 282 of the I.T. Act, 1961, notice under the Act is to be served either by post or as if it is summoned under the Code of Civil Procedure. Notice dated 17-7-2012 has been claimed to have been served through affixture on 27-7-2012 as provided in Code of Civil Procedure. Here provisions of Order V Rules 17 to 20 of CPC are relevant. After taking notice of above statutory provisions. their Lordships of Supreme Court in the case of CIT v. Ramendra Nath Ghosh [1971] 82 ITR 888, held (pages 890 & 891) as under : - " Admittedly, the assessees have not been personally served in these cases. Therefore, we have to see whether the alleged service by affixation was in accordance with law. It is necessary to mention that, according to the assessees, they had no place of business at all. They claim that they have closed their business long before the notices were issued. Hence, according to them, Mr. Neogi must have gone to a wrong place. This contention of the assessees has been accepted by the Appellate Bench of the High Court. Bearing these facts in mind, let us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in rules 17, 19 and 20 of Order V of CPC. Rules 17, 19 and 20 of Order Vof CPC lay down the procedure for service of summons/notice and, therefore, the procedure laid down therein cannot be surpassed because the intention of the legislature behind these provisions is that strict compliance of the procedure laid down therein has to be made. The expression after using all due and reasonable diligence' appearing in rule 17 has been considered in many cases and it has been held that unless a real and substantial effort has been made to find the defendant after proper enquiries, the Serving Officer cannot be deemed to have exercised 'due and reasonable diligence'. Before taking advantage of rule 17, he must make diligent search for the person to be served. He therefore, must take pain to find him and also to make mention of his efforts in the report. Another requirement of rule 17 is that the Serving Officer should state that he has affixed the copy of summons as per this rule. The circumstances under which he did so and the name and address of the person by whom the house or premises were identified and in whose premises the copy of the summon was affixed. These f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied. It is also clear from the Inspector's report that there is no mention of name and address of the person who had identified the house of the assessee and in whose presence the notice u/s.143(2) was affixed. There is no evidence or indication in the report of Inspector that he had personal knowledge of the place of the business of the assessee and was, thus, in a position to identify the same. Therefore, neither the procedure laid down under order V. rule 17 had been followed nor that laid down under order V rules 19 and 20 had been adhered to. Neither before taking recourse to service by affixture, the Assessing Officer or the concerned officer had recorded the findings to justify the service by this mode nor afterwards called for the affidavit or certificate of service by affixture from the Serving Officer. He had not certified that the service had been effected by adopting this course. 15. In view of the above, it is clear that there was no valid service of notice u/s.143(2) by way of affixation. Since in the instant case, the department has not been able to demonstrate that notice u/s.143(2) was served within the statutory time limit, the assessment made on the basis of su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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