9911796707
TMI Blog2023 (8) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... 2104 for compliance of the same on 24/01/2014 and on the very same day i.e. on 24/01/2014 the A.O. passed the assessment order u/s 144/147. Apart from the same, there is no mentioning of reasons by the A.O. in the assessment order as to why the Notice has to be served through affixture and the A.O. has not mentioned anything regarding efforts of due and reasonable diligence to serve the notice on the assessee as required under rule 17 of order V of the CPC, thus the Service of Notice by way of affixture on the Assessee cannot be construed as sufficient Service of Notice. Therefore, in our considered opinion, the A.O. has committed an error in initiating penalty proceedings - Grounds of Appeal of the assessee are allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... aring of the appeal. 6. That all the grounds are without prejudice to each other." 3. There is a delay of 44 days in filing the present Appeal, the assessee filed an affidavit stating that the Appeal could not be filed on time as the Counsel appeared before the CIT(A) has not provided the requisite documents to the assessee in time which caused the delay of 44 days in filing the present Appeal and prayed for condoning the same. Considering the days of delay involved in the present Appeal and also the reasons assigned in the affidavit of the Assessee, the delay of 44 days in filing the present Appeal is hereby condoned. 4. Brief facts of the case are that, the assessment order u/s 144/147 of the Income Tax Act, 1961 ('Act' for short) cam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the A.O. u/s 148/142(1) of the Act. We have gone through the assessment order dated 24/01/2014 and found that the A.O. issued a first notices on 16/08/2013 to the assessee by fixing the hearing on 29/08/2013. Admittedly, the said notice has been returned unserved with the remark 'No such person is residing in this address'. The A.O. has not made any effort to find out the proper address of the assessee and nothing is mentioned in the Assessment Order as to whether the address mentioned in the notice dated 16/08/2013 was the last known address of the assessee or the registered address of the assessee. Further, it is found from the assessment order that since the case was time barring on 31st January 2014, the A.O. opted for substitute s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by post or in such manner as provided under the Code of Civil Procedure 1908 for the purpose of service of summons. The Hon'ble Supreme Court after taking into consideration of the above statutory provisions in the case of CIT vs. Ramender Nath Ghose (1971) 82 ITR 888, held (Page No. 890 & 891) as under:- "Admittedly, the assessees have not been personally served in these cases. Therefore, we have to see whether the alleged service by affixation was in accordance with law. It is necessary to mention that, according to the assessees, they had no place of business at all. They claim that they have closed their business long before the notices were issued. Hence, according to them, Mr. Neogi must have gone to a wrong place. This conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng officer does not mention the names and addresses of the person who identified the place of business of the assessees. That officer does not mention in his report nor in the affidavit filed by him that he personally knew the place of business of the assessees. Hence, the service of notice must be held to be not in accordance with the law. The possibility of his having gone to a wrong place cannot be ruled out. The High Court after going into the facts of the case very elaborately, after examining several witnesses, has come to the conclusion that the service made was not a proper service. Hence, it is not possible to hold that the assessees had been given a proper opportunity to put forward their case as required by Section 33B." 7. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect or personal service upon the assessee to bind him by such mode of service, the mere formality of affixture is not sufficient. Since the service, has to be done after making the necessary efforts, in order to establish the genuineness of such service, the Serving Officer is required to state his full action in the report and reliance can be placed on such report only when it sets out all the circumstances which are also duly verified by the witnesses in whose presence the affixture was done and thus the affidavit of the Serving Officer deposing such procedure adopted by him would also be essential. 9. In the instance case, the first notice dated 16/08/2013 has been admittedly 'not served' and the notice was returned with remark 'No su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
