Tribunal Rules Assessment Null Due to Invalid Notice Service; Assessee's Appeal Succeeds Over Section 143(2) Compliance.

The Tribunal set aside the CIT(A)'s findings, determining that the notice under section 143(2) was not validly served within the prescribed 12-month period, as the service by affixture did not comply with the procedural requirements of the CPC. Consequently, the assessment based on the invalid notice was deemed null and void, and the assessee's appeal was allowed.

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Issues Involved:

1. Time-barred notice u/s 143(2)
2. Validity of service by affixture
3. Compliance with Civil Procedure Code (CPC) for service of notice

Summary:

1. Time-barred notice u/s 143(2):

The assessee contended that the notice u/s 143(2) served on 20-11-1995 was time-barred as it exceeded the 12-month period from the date of filing the return (28-10-1994). The learned CIT(A) rejected this claim, stating that the notice was served by affixture on 30-10-1995, within the permissible period.

2. Validity of service by affixture:

The Assessing Officer claimed that the notice was served by affixture at the last known address on 30-10-1995. The assessee argued that there was no evidence of evasion of service and that the process server did not make sufficient efforts to locate the assessee. The CIT(A) upheld the service by affixture, noting that the assessee failed to inform the department of the change of address.

3. Compliance with Civil Procedure Code (CPC) for service of notice:

The assessee argued that the procedure for service by affixture as laid down in Order 5 Rule 17 of CPC was not followed. The Tribunal found that the process server's report lacked details of efforts made to locate the assessee and the names of witnesses present during affixture. The Tribunal emphasized the need for strict compliance with the CPC provisions, including verification by affidavit and proper recording of circumstances.

The Tribunal concluded that the service by affixture was not valid as the necessary procedures under Order 5 Rules 17, 19, and 20 of CPC were not followed. Additionally, there was no evidence of service by registered post within the required period. Consequently, the notice u/s 143(2) was not served within 12 months of filing the return, rendering the assessment null and void.

Conclusion:

The Tribunal set aside the CIT(A)'s findings, holding that the notice u/s 143(2) was not validly served within the prescribed period, and thus, the assessment based on such invalid notice was null and void. The appeal of the assessee was allowed.

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