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TMI Blog2018 (6) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... (Ld. DR) ORDER PER N.K.CHOUDHRY, JM: The instant appeal has been preferred by the Assessee/Appellant, on feeling aggrieved against the order dated 17.10.2016, impugned herein, passed by the Ld. CIT(A)-2, Jalandhar, u/s 250(6) of the I.T. Act, 1961 (hereinafter called as the Act ). 2. The assessee has raised the following grounds of appeal. 1. ( a) That under the fact and circumstances of the case, the proceedings initiated by the Ld. AO are bad in law and without and/or in excess jurisdiction consequently reassessment order passed by him u/s 147 should be quashed and annulled. ( b) That the Worthy CIT(A)-2, Jalandhar has failed to appreciate that the reassessment order is void abinitio, as the information as to land sold by assessee having emanated in the search of SI Parminder Singh Others of Kapurthala, assumption of jurisdiction u/s 148 was bad in law. This proposition of law is settled by jurisdictional ITAT in case of ITO v/s Arun Kumar Kapoc (2011)140TTJ249(ASR). ( c ) That the first appellate authority has failed to appreciate that notice u/s 148 was not served a per law. ( d) That without prejudice to the above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sonil Bedi (daughter of deceased assessee) while issuing notice u/s 142(1) dated 18.02.2013, which also claimed to be served through affixture only . Even in response to this notice dated 18.02.2013 as well, neither any return of income was filed nor any body attended the proceedings. In view of the aforesaid facts, the Assessing Officer finding no alternative framed the assessment u/s 144 of the Act and added the amount of ₹ 45,93,750/- in the income of the assessee as long term capital gain on the sale of property by the assessee . 4. The assessee preferred the first appeal before the Ld. CIT(A), who vide order dated 17.10.2016 dismissed the appeal of the assessee and thereafter, the assessee preferred the instant appeal which is under consideration. 5. At the outset, the assessee emphasized on the grounds No.1(c), 2 and 3, which relates to the non-service of notice u/s 148 and 142(1) of the Act as per law. The Ld. AR argued that in the instant case, the assessee had already expired on 16.05.2010, however, the AO had issued notice dated 29.03.2012 u/s 148 of the Act in the name of the deceased assessee, which claimed to be served through affixture on 31- 03-2012 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2007 : Return of Income filed at ₹ 3,89,311/- 25.08.2007 : Assessment u/s 143(3) framed. 12.10.2009 : Notice u/s 133(6) issued by ACIT, CC-1, Jalandhar (Copy at page 15-16 of PB) 21.10.2009 : Summon u/s 131 for personal attendance (Copy at page 17 of PB) 16.05.2010 : Date of death of Shridhar Bedi (Copy at page 13 of PB) 29.03.2012 : Alleged Notice u/s 148 issued in the name of deceased Assessee. 31.03.2012 : Alleged Affixture of Notice u/s 148 29.05.2012 : Alleged Notice u/s 142(1) served through affixture on deceased Assessee. 18.02.2013 : Alleged Notice u/s 142(1) served through affixture on L/H Sonil Bedi. 18.03.2013 : Alleged Assessment u/s 144 r.w.s.147 of the IT Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept the service of the summons on his behalf, nor any other persons on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. 7.4 Further Rule 20 of order-V speaks about the substituted services, according to this rule, when the Court is satisfied that there is a reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. 7.5 The mandate of Rule-1, 17 20 of the Order -V is that attempt should be made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice dated 18.02.2013 u/s 142(1) has also been claimed as served upon the legal heir, through affixture only. While serving the notice through substituted service to the sole legal heir of the assessee, the Assessing Officer never tried to serve the legal heir in the ordinary way, however made an attempt only through substituted service which also create lots of doubts about service and validity of the notices which according to our mind is not mere procedural requirement but mandatory. 7.7 The judgments relied upon by the Ld. AR, in support of assessee's case speaks about one thing only that proper notice u/s 148 of the Act for initiating reassessment proceeding is not a mere procedural requirement but the service of the prescribed notice on the assessee is a condition precedent to the validity of any of the reassessment made u/s 147. It is settled law that if no notice is issued or if the notice issued is shown to be invalid then proceedings initiated and carried by the Income Tax Officer without a notice or in pursuance of invalid notice would be illegal and void and shall vitiate the entire proceedings. In the aforesaid analyzation, we do not have any hesitation to ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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