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TMI Blog2021 (7) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... essee personally or by post nor served by affixing the copy thereof in terms of order V Rule 20 of CPC. On the other hand, there is no merit in the contention of the department that the AO had passed the reassessment order after serving notice to the assessee u/s. 148 of the Act. Hence, in our considered view, since the AO had passed the assessment order u/s. 147 of the Act, in violation of the mandatory provision under section 148 of the Act, the Ld. CIT(A) has wrongly affirmed the order passed by the AO, therefore the impugned order is not sustainable in law. - Decided in favour of assessee. - ITA No. 858/Chd/2019 - - - Dated:- 29-6-2021 - N. K. Saini , Vice President And R. L. Negi , Member ( J ) For the Appellant : Nikhil Goyal and Ashok Goyal, CAs For the Respondents : Ashok Khanna, Addl. CIT ORDER Per R. L. Negi , Judicial Member The present appeal has been filed by the Appellant/assessee against the order dated 22/03/2019, passed by the Ld. CIT(A)-4, Ludhiana for the assessment year 2012-13, whereby the Ld. CIT(A) has partly allowed the appeal filed by the assessee against the assessment order passed by the AO u/s. 144 of the Income Tax Act, 1961 (F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the same was not found to be credited in the books of accounts of the assessee. 6. That the appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed off. 4. At the outset Ld. Counsel for the assessee submitted that the Ld. CIT(A) has wrongly confirmed the order passed by the AO without taking into consideration the fact that the AO had passed the assessment order in violation of the mandatory provision u/s. 148 of the Act, i.e., without serving notice to the assessee before initiating proceedings u/s. 147 of the Act. The Ld. Counsel invited our attention to the copy of notice dated 31/03/2016 issued under section 148, available in the paper book and pointed out that the A.O. had not mentioned the name of the father of the assessee due to which the notice could not be served upon the assessee. The Ld. counsel further invited our attention to the remarks on the copy of notice that the notice could not be served upon the assessee as father's name of the assessee was not written in the same. The Ld. Counsel accordingly submitted that since the notice was not served upon the assessee, the Ld. CIT(A) ought to have set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough Notice Server. Notice was not sent for service by way of registered post. The notice server has noted on 31.03.2016 on a copy of notice placed on record that Thereafter the AO on the same date recorded satisfaction that service of notice cannot be done in ordinary course and ordered service in the manner as provided under rules or order of CPC and directed the notice server to effect service of notice u/s. 148 by affixture in the presence of Inspector of the office and copy of order was also to be affixed on notice board of the office of AO. The notice server and Inspector have noted on the copy of this order under Rule 5 of the CPC dated 31.03.2016 that notice was affixtured but have not stated about premises where it was affixtured. Later statutory notice u/s. 142(1) and questionnaire dated 01.07.2016 are found to have been addressed to Sh. Ravinder Singh S/o Sh. Karnail Singh (Pyara Singh), Village Ram Nagar, P.O. Nanakpur. Final opportunity notice was also found to be issued at the same address on 29.09.2016 which was dispatched on 14.10.2016 for hearing fixed on 20.10.2016. The appellant claims in affidavit filed by him that no notice u/s. 148 was received by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st as well as by way of substituted service was allegedly served on the same date. There was no reason for the satisfaction of the AO that the alleged notice cannot be served in an ordinary way. AO issued the affixture order on the same day without waiting for the outcome of the service of notice sent through ordinary way i.e. by way of registered post. Service could not be effected at the village address of the assessee, the AO thereafter served the notice u/s. 142(1) at his office address which means that the Assessing officer had come to know the office address of the assessee at which service can be effected but admittedly no notice u/s. 148 of the Act was served on the assessee at his office address also. Under the circumstances, it is clear that there was no valid service of notice u/s. 148 on the assessee. Thus the facts and circumstances in appellant's case being similar to the case of Sh. Balbir Singh (supra) discussed above, it is held that there was no valid service of the notice u/s. 148 on the assessee or an agent duly empowered by the assess se and therefore, the consequent assessment proceedings framed u/s. 147 are invalid and not sustainable as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit in the contention of the department that the AO had passed the reassessment order after serving notice to the assessee u/s. 148 of the Act. Hence, in our considered view, since the AO had passed the assessment order u/s. 147 of the Act, in violation of the mandatory provision under section 148 of the Act, the Ld. CIT(A) has wrongly affirmed the order passed by the AO, therefore the impugned order is not sustainable in law. 10. In view of the discussion in the foregoing paras, we hold that the action of the AO was contrary to the expressed provisions of law and also contrary to the ratio laid down by the Hon'ble Supreme Court in the case of R.K. Upadhyay vs. Shanabhai P. Patel (supra). Hence, we find merit in the contention of the Ld. counsel that since the order passed by the AO was void ab initio, the Ld. CIT(A) has wrongly upheld the action of the AO. We therefore, allow the legal ground raised by the assessee and set aside the order passed by the Ld. CIT(A). 11. Since we have set aside the impugned order on legal ground raised by the assessee, remaining grounds have become academic. Hence, we do not deem it necessary to adjudicate the same. In the result appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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