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TMI Blog2019 (12) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... on the advancing of arguments of having been framed by some person named Ishu Sharma, the ld. CIT(A) would have the power to waive the fine imposed . The assessee appearing in person admittedly did not comprehend the nature of relief being sought and failed to comprehend that there was no such power vested by the Statute in the Authority of the First Appellate Authority and further that no fine had been imposed - the Right to Appeal cannot be said to have been exercised by the assessee in all fairness as the assessee failed to comprehend the nature of the order and the magnitude of the evidences required. It is deemed appropriate to restore the issue back to the file of the Ld. CIT(A), directing the assessee to address the relevant facts on the basis of which the Ld. CIT(A) can grant relief if maintainable in law. The appeal of the assessee is allowed for statistical purposes. - ITA No.234/Chd/2019 - - - Dated:- 23-8-2019 - Smt. Diva Singh, Judicial Member Assessee by : None Revenue by : Shri Manjit Singh Order Diva Singh, The present appeal has been filed by the assessee assailing the correctness of the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee and was thus, in a position to identify the same. In the absence of above material evidence notice cannot be accepted as served on the assessee in accordance with law. Constructive knowledge of the above notice cannot be attributed to the assessee. In these circumstances, we hold that assessment made under Section 144 was bad in law. The same is required to be set aside. Further it is submitted that the perusal of the impugned assessment order shows that the Ld. AO Sh. Dara Singh only once attempted to send the notice through post which was never received to the appellant/assessee, thereafter the notices was served through affixtures which were not in the knowledge of the appellant. Further the Ld. AO had never mentioned the address where the notices were affixed. The Hon'ble Delhi High Court in the case of Commissioner of Income Tax Vs. Hotline International Pvt. Limited decided on 03.04.2007 had specifically held that if there is no proper service of notice, then the notice under section 148 is bad in law. The relevant extract is reproduced here as under for the kind perusal of this Hon'ble Tribunal: Under Order V Rule 17 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is very poor person doing the job of scooter mechanic and entire family of the appellant is under distress. (emphasis supplied) 2. At the time of hearing no one was present on behalf of the assessee. However considering the material available on record it was deemed appropriate to proceed with the present appeal ex-parte qua the assessee appellant on merit after hearing the ld. CIT-DR. 3. A perusal of the aforesaid argumentative grounds brings out the fact that the assessee is apparently not aware either of the statutory rules or the provisions. A perusal of the impugned order also brings out the fact that admittedly the statutory Appellate Forum provided to the assessee namely First Appellate Authority in the facts of the present case has not been availed of by the assessee effectively. The reasons for making the said observation is evident not only from the manner in which the prayer in the grounds has been couched. It is further fortified on a reading of the extract of the written submissions extracted in the impugned order. These are reproduced hereunder for the sake of completeness: I, Jiwan Lal son of Shri Sham Lai, r/o 151, Industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to comprehend that there was no such power vested by the Statute in the Authority of the First Appellate Authority and further that no fine had been imposed. In the interests of substantial justice, the prayer made in the above extracted Ground No. 3 is being considered in the present proceedings. Admittedly the aforesaid circumstances lead to the indelible conclusion that the Right to Appeal cannot be said to have been exercised by the assessee in all fairness as the assessee failed to comprehend the nature of the order and the magnitude of the evidences required. It also emanates on a reading of the submissions as set out in para 4 of the impugned order that either the written submission of the assessee were incomplete or that the facts of some other case appear to have crept in. For ready reference the relevant findings of the Ld. CIT(A) is extracted hereunder: The aforesaid written submissions of the appellant as well as his oral averments do not throw any light on the allegation of lack of jurisdiction of the AO in framing the impugned assessment. Refusal to receive the notice sent through Postal Authorities cannot be considered to be non-service of the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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