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TMI Blog2019 (12) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... e revenue department itself has acknowledged its mistake by abruptly rushing to substitute service of notice by way of affixation by mentioning the correct address which cannot be taken into account as there was no effort whatsoever on the part of revenue department to get the service effected through ordinary course. Question framed is answered in affirmative and consequently assessment framed in this case u/s 143(3) is void ab initio for want of issuance of statutory notice u/s 143(2) consequently, assessment is hereby quashed without going into merit of this case. - Decided in favour of assessee - ITA No.1209/Del./2019 - - - Dated:- 4-12-2019 - Shri R.K. Panda, Accountant Member And Shri Kuldip Singh, Judicial Member For the Assessee : Dr. Rakesh Gupta, Somil Agarwal, Adv. For the Revenue : Shri N.K.Bansal, Sr. DR ORDER PER KULDIP SINGH, JUDICIAL MEMBER : The appellant M/s. Tourism India Management Enterprises (P) Ltd., New Delhi (hereinafter referred to as 'the assessee ) by filing the aforesaid appeal, sought to set aside the impugned order dated 09/11/2018 passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not reversing the action of Ld. AO in charging interest u/s 234A, 234B and 234C of Income Tax Act, 1961. 6. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other. 2. Briefly stated that facts necessary for adjudication of the controversy at hand are : Assessee is into the business of providing tourism and travel related services, exclusively to inbound tourist traffic from outside India. During the year under assessment, assessee filed return of income declaring income of ₹ 77,37,010/- on 29.09.2012. During scrutiny proceedings, AO stated to have issued statutory notice u/s 143(2) of the Act on 04.09.2014 fixing the next date for hearing on 15.09.2014. Since notice was not returned back nor someone on behalf of the assessee company come forward on 15.09.2014, AO proceeded to serve the notice by way of affixture at the last known address. Questionnaire issued on 26.06.2015 to be complied on 03.07.2015 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rprises Pvt. Ltd, AN 53 B, Shalimar Bagh, New DelhiDelhi-110052 as is evident from the copy of notice available at page 26 of the paper book. It is also not in dispute that in the copy of acknowledgement of return available at page 1 of the paper book the address of assessee company is mentioned as M/s. Tourism India Management Enterprises (P) Ltd., K-1/24, C.R.Park, Delhi. 8. Likewise, in the computation of total income available at page 2 again address of the assessee is CR Park. It is also not in dispute that when we examine copy of intimation issued u/s 143(1) dated 13.03.2014 available at page 30 of PB and the notice u/s. 142(1) dated 03.08.2008, 21.09.2011, 16.11.2011 and again 16.11.2011 available at pages 40 to 44 the correct address of the assessee is of CR Park is given. Then again in the copy of acknowledgement of return for AY 2011-12 and 2012-13 dated 29.09.2011 and 29.09.2012 correct address was brought to the notice of the revenue. 9. When we examine the issue in controversy as to whether statutory notice u/s 143(2) was served on the assessee within the time, in the backdrop of aforesaid facts and circumstances of the case the reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was valid, the service of notice by way of affixation was just issued as abundant precaution to safeguard the interest of the revenue it goes to prove that mandatory notice u/s 143(2) has never been served upon the assessee within prescribed period. When notice u/s 143(2) dated 04.09.2014 was never served upon the assessee having been sent on wrong address, there is no question of resorting to service of notice by way of affixation on correct address. 13. When we examine para 3 of the order dated 03.02.2016 passed by the AO vide which objection raised by the assessee were disposed off, it is categorically mentioned that : Moreover, when no confirmation was received from the assessee, the AO issued another notice on 29/09/2014 on the address mentioned at return filed by it i.e. K-124, CHITRANJAN PARK, NEW DELHI-110019. Since, the AO was bound to serve the above notice on or before 30.09.2014 and due to shortage of time the AO was left with no option but to serve the same by way of affixture. The notice was duly affixed through inspector on 29.09.2014. 14. We are of the considered view that aforesaid para 3 of the order makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CPC by effecting the service by affixation in the presence of some independent witness. More particularly when there is no material on record that assessee has evaded the service of summons or has left the place of his last address to some unknown place only then service by way of substitute service can be resorted to. In the instant case, when there is no such material on the record because the first notice was issued on 04.09.2014 on non-existant address of the assessee and then Revenue Officer rushed to serve the notice by way of affixation without recording any satisfaction, the entire assessment proceedings are null and void. Moreover in the instant case when the revenue knew correct address of the assessee since 2008, there is no question of issuing the notice dated 04.09.2014 at the wrong address and suddenly resorted to served the notice by way of affixation at the correct address. It appears that the entire exercise has been completed in haste to meet with the statutory requirement of limitation to serve the notice up till 03.09.2014, which cannot be treated as a valid service by any stretch of imagination even. 18. The contention of Ld. DR for the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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