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TMI Blog2024 (8) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... on to hold that in the instant case, in fact no service of notice 143(2) of the Act has been made and/or attributed. We also observe that Hon ble Apex Court in the case of CIT Vs Laxman Das Khandelwal [ 2019 (8) TMI 660 - SUPREME COURT] has clearly held that absence of service of notice, cannot be cured by invoking the provisions of section 292BB of the Act. We are also of the considered view, that the service of the prescribed notice such u/s 143(2) of the Act on the Assessee is a sine qua non or condition precedent for the validity of the assessment proceedings. If no notice is issued or if the notice issued is shown to be invalid, then proceedings initiated and carried out by the Assessing officer without a notice or in pursuance of invalid notice, would be void-ab-intio and shall vitiate the entire proceedings and invalidates the Assessment Order as well, hence the Assessment order being passed sans serving notice u/s 143(2) of the Act, is liable to be quashed - Decided in favour of assessee. - SHRI.NARENDER KUMAR CHOUDHRY (JUDICIAL MEMBER) AND MISS. PADMAVATHY S. (ACCOUNTANT MEMBER) For the Appellant : Shri. Dharan Gandhi, Ld. Adv For the Respondent : Shri. P.D. Choughule (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kadwani Securities Ltd and Lifeline Drugs and Pharma Ltd. The Assessing Officer further on the basis of report of the Kolkata Investigation Wing, treated the said shares as penny stock as ingenuine and manipulated and ultimately, treated the sale price of the said share amounting to Rs. 1,01,69,601/- as un-explained cash credit and added the same in the income of the Assessee. 4. The Ld. Commissioner on appeal, affirmed the said addition against which the Assessee is in appeal before us. 5. We heard the parties and perused the material available on record. The Assessee before us mainly challenged the assessment order on the legal aspect. The Assessee claimed that though the Assessing Officer in first para of the assessment order has duly recorded that the case was selected for scrutiny through CASS, accordingly, the statutory notice under section 143(2) of the Act was issued and duly served on the Assessee; however, no such notice was ever served upon the Assessee. The Assessee further claimed that she sought certain documents from the Revenue Department and thereafter only came to know that the notice issued under section 143(2) of the Act dated 18/09/2015 by the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of the Act as alleged by the Assessee. It is admitted fact that though the Revenue Department filed its response to the contention raised by the Assessee; however, failed to file the details of sending 143(2) notice through registered post (RPAD) or any other mode/ or details of the authorization issued by the ITO / AO to the Inspector for serving notice through affixture. 5.4 It is trite to say that notice under section 143(2) of the Act is a statutory notice and service of the same upon the Assessee is required to be done before finalization of the assessment by any of following modes: Personal service; By registered post {RPAD}; By speed post; By courier service; By fax message; By electronic mail service. 5.5 When the service of notice in any of aforesaid modes, can not be served through ordinary process, owing to the reasons as specified in Order V Rule 17 of the Civil Procedure Code (in short CPC ) which reads a under: Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as photos etc.. The report is to be filed as an endorsement to the original notice after being docketed in the order sheet. The report should be verified by an affidavit. In the absence of such an affidavit, it is imperative that the Assessing Officer must examine the Inspector on oath. 5.7 Admittedly, in the instant case, the Revenue department failed to produce any material on record that at the initial stage the notice u/s 143(2) of the Act was ever tried to be served through ordinary course/mode, whereas the Assessee by filing its duly sworn affidavit has claimed that the Assessee along with her family members are residing for the past 26 years at the address where the affixture of notice has allegedly been affixed/served. The Assessee in para: 4 of the affidavit specifically stated that the Assessee and her family members were residing at the last address for the entire months of September, 2015 and October, 2015. Further, in para 5 it is stated that physical communications such as society maintenance receipts, past electricity bills, MTNL telephone bills during the period of September, 2015 and October, 2015 were served either by post or courier at the aforementioned address ..... X X X X Extracts X X X X X X X X Extracts X X X X
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