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TMI Blog2016 (11) TMI 1619X X X X Extracts X X X X X X X X Extracts X X X X ..... n heard with respect to the aforesaid Ground and the relevant material perused. 3. In brief, the relevant facts are that the appellant it a company incorporated under the provisions of the Companies Act, 1956 and is engaged in the business of blending and bottling of Indian Made Foreign liquor. For the assessment year under consideration, it field a return of income on 30/11/2000, declaring an income of Rs. 52,380/-, which have been subject to scrutiny assessment under section 143(3) of the Act, wherein the total income has been assessed at Rs. 47,53,290/-, after making various additions/ disallowances. The assessee company had carried the matter in appeal before the CIT(A), who has allowed certain relief to the assessee with respect to the additions/disallowances, but so far as the legal point raised by the assessee pertaining to the issue of wrong assumption of jurisdiction of the Assessing Officer under section 143(2) of the Act is concerned, the same has been held against the assessee. The said decision of the CIT(A) is being agitated before us on the basis of Ground of appeal No.2, which we have referred above. 4. The factual matrix in relation to the stand of the assessee o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act cannot be said to have been validly served and consequently, the assessment order is void ab-inito. 6. On the other hand, the Ld. Departmental Representative has relied upon the order of the CIT(A) in this regard and pointed out that the Assessing Officer had chosen to serve the notice by affixture in order to avoid a time lag as the issuance of notice was getting time barred and that in any case, adopting the method of service by affixture was wholly within the power of the Assessing Officer. Apart there from, the Ld. Departmental Representative also pointed out that it is not the case of the assessee that the notice under section 143(2) was never served because assessee had appeared before the Assessing Officer on 6/12/2001 and sought adjournment. It has also been argued that the assessee has not objected to such service of notice during the course of assessment proceedings and, therefore, the notice is deemed to be valid in terms of section 292BB of the Act. 7. We have carefully considered the rival submissions. The grievance of the assessee is essentially arising from the provisions of section 282 of the Act dealing with provisions relating to the service of notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axman 106(Mag.) has observed that the service of notice by affixture can be resorted to only when Revenue has discharged initial onus by showing that there was reason to believe that the assessee was intentionally avoiding the authorities for the purpose of avoiding service of notice or that there were other good reasons to come to the conclusion that summons could not be served in the ordinary way. Before us, the Ld. Representative for the assessee has also relied upon the judgment of the Hon'ble High Court of Andhra Pradesh in the case of CIT v. Godavari Electrical Conductors, ITA No.249 of 2003 dated 29/10/2014, wherein the decision of the Tribunal, inter-alia, holding that the issuance of notice straightway through affixture was not proper, has been approved. 7.2 In the background of the aforesated legal position, we may now examine the fact position in the instant case. In the present case, it is undeniable that the notice under section 143(2) dated 29/11/2001 has been directly served through affixture. The CIT(A) has observed that there was good reason for the Assessing Officer to take this step because of the need to avoid time lag as otherwise the service of notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding service or there was any other good reason to conclude that the notice could not be served in an ordinary way. The inaction or delay on the part of the Assessing Officer in issuing notice under section 143(2) of the Act cannot be a ground to straightway effect service by affixture. Thus, in the instant case, the ordinary process not having been exhausted or carried out by the Assessing Officer, he was not justified in directly resorting to service of notice by an affixture merely because he had issued the notice at the last minute i.e. on 29//11/2011 so as to avoid the limitation expiring on 30/11/2001. Under these circumstances, we find ample force in the plea of the assessee on the issue of wrong assumption of jurisdiction by the Assessing Officer by issuing the instant notice under section 143(2) of the Act. 7.4 Before us, another plea raised by the Revenue is that the assessee had appeared before the Assessing Officer on 10/12/2001 and that on that basis it is sought to be canvassed that, in any case, assessee was aware of the notice under section 143(2) of the Act having been served on 29/11/2001. On this aspect, the Ld. Representative for the assessee pointed out that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act was served on the employee of the firm at official address. In the appellate proceedings, assessee raised an objection that in the absence of proper service of notice under section 143(2) of the Act, assessment order deserves to be set-aside. The aforesaid stand of the assessee did not prevail with the Hon'ble Delhi High Court. The Hon'ble High Court noted that notice has been served at the assessee's premises and since at the relevant point of time the partners were out of station, notice was served on employee of the firm. The Hon'ble High Court specifically noted that assessee has participated in assessment proceedings pursuance to the notice being disputed by the assessee. In this background, the Hon'ble High Court noted that even if one was to proceed on the assumption that notice was served neither on the two partners of the assessee firm and that it was served on some person, who was not specifically authorized to receive the notice, yet service of notice could not be invalidated because the very same notice had been complied with by the assessee. Notably, the Hon'ble High Court noticed that the notice issued on 30/12/2004 had fixed the he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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