2007 (9) TMI 297

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....ct that the assessment is to be quashed since it has been framed without serving the mandatory notice under Section 143(2) within the statutory period of 12 months from the end of the month in which the return was filed. The return was filed on 31st Oct., 2001. Notice under Section 143(2), therefore, ought to have been served on the assessee on or before 31st Oct., 2002. A notice was issued on 25th Oct., 2002 and it was served by affixture on 31st Oct., 2002. The assessee challenges the notice on the ground that it has not been properly served and since no other notice was served on him before the aforesaid date, the assessment should be quashed on the basis of the judgments of the Hon'ble Delhi High Court in the cases of CIT vs. Lunar ....

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.... (1970) 77 1TR 934 (Assam) , the Assam High Court held that there should first be an order by the Court and then service by affixture and the mere fact that after service by affixture the Court was satisfied that service should be effected by affixture would not be proper compliance with Rule 20. In the present case, the last known address of the assessee was 55/28 sector, Faridabad (behind Tile India), as per the reverse of the notice issued on 25th Oct., 2002 (p. 1A of the paper book) but the notice has been served by affixture on tha Kalkaji address of the assessee. This is clear from p. 2 of the paper book which is a copy of the service report where the Inspector who effected the service has stated that the notice server affixed the not....

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....sed on r. 17 is also to be upheld. 6. In addition thereto, Rule 19 of Order 5 requires that where notice is returned under Rule 17, the Court shall, if the return under the rule has not been verified by an affidavit of the serving officer, examine the serving officer on oath touching his proceedings and may make such further enquiry as he deems fit and shall either declare that the notice has been duly served or pass such order as he thinks fit. In the present case, there is no evidence to show that the notice server (Shri Babulal) was required to file an affidavit or that he was examined by the AO on oath. Such procedural irregularities do invalidate the service of the notice as held by the Kerala High Court in M.O. Thomas v. CIT (1963) 4....