TaxTMI 
TaxTMI 
2004 (6) TMI 287
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....ed on the 30-10-1995 was served on the assessee's AR by Regd. AD post on 20-11-1995, against a matter of record." 3. Shri R.V. Sinha, appeared for the assessee whereas Shri Lav Saxena, the Departmental Representative represented the Department. 4. The facts relevant for deciding the controversy in the ground of appeal taken by the assessee are that the return was filed by the assessee on 28-10-1994 for the assessment year 1994-95. This return was processed under section 143(1)(a) on 30-12-1994. Thereafter, a notice under section 143(2) was issued. The contention of the assessee before the learned CIT(A) was that notice under section 143(2) was served only on 20-11-1995 and that the same was time barred. Before him the assessee took additional ground to this effect which is as under: "The Learned ITO has erred in serving the 1st notice under section 143(2) after 31-10-1995 as it was done after the lapse of 12 months and thus time barred." 5. It was submitted before the learned CIT(A) that since the period of 12 months expired on 31-10-1995 and as the notice under section 143(2) could not be served by that date, the proceedings of assessment were invalid. 6. ....
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....(2) was served on 30-10-1995 by affixture. In fact, there was a failure on the part of the assessee to intimate the Assessing Officer regarding the change of address. In these circumstances it cannot be said that the Assessing Officer was ill advised to serve the notice by affixture. The said notice has been validly served within the time allowed under the Act. Accordingly, the additional ground is decided against the appellant." 8. The learned counsel for the assessee Shri Sinha vehemently contended that the Assessing Officer has not followed the procedure laid down in Civil Procedure Code for effecting service by affixture. In this regard he invited our attention to Order 5 of Civil Procedure Code and made specific mention to Order 5 Rule 17 and submitted that since service by affixture has not been done in the manner laid down in the provisions contained under Order 5 Rule 17, such service cannot be treated to be valid and sufficient service. The learned counsel also placed reliance on several decisions including the following: 1. Smt. Yallawwa v. Smt. Shantantavva AIR 1997 SC 35 (Para 5 at Pg. 39) 2. Sushil Kumar Sabharwal v. Gurpreet Singh [2002] 5 SCC 377....
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.... Defence Colony. Notice therefore is affixed at the last known addresses." It may be pointed out here that the Assessing Officer has signed this report on 30-10-1995 by making the endorsement 'seen'. He has not recorded any finding regarding sufficiency of service by affixture or otherwise. 11. On going through the report of process server also, it is found that he has effected the notice on the last known address, the details of last known address have been given in the report. It is not clear as to who gave information about the last known address to the process server. The process server or the Serving Officer has not given the name and address of the person who identified the place, where affixture of notice was done nor the name and address of the witness, before whom affixture was made. The contention of the learned counsel for the assessee in this regard was that the address of their office is still at 408, Defence Colony, New Delhi and there is no change in the address. On this basis, the correctness of the report of the process server has been challenged. It has been pointed out that the registered notice issued on 30-10-1995 and sent at this address was rece....
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....y works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed." Rule 19 relates to Serving Officer which reads as under: Rule 19: Examination of Serving Officer: "Where a summons is returned under rule 17, the court shall, if the return under that rule has not been verified by the affidavit of the Serving Officer and may, if it has been so verified, examine the Serving Officer on oath or cause him to be so examined by another court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit." R. 20. Substituted Service- "(1) Where the Court is satisfied that there is a reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordina....
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....e present case, the whole thing has been done in one stroke. The first entry which is dated 30-10-1995 and which has been reproduced above, is silent about the mode adopted for service. It is not known as to why and under which circumstances, another entry is made on the same date. The reason for making such subsequent entry has not been noted by the Assessing Officer. He has also not issued any direction for issuing notice simultaneously for service by affixture and has only recorded the fact that the notice is served by the affixture. Thus, on 30-10-1995, the first entry is made and without recording its compliance and without recording any apprehension about delay by such mode, second entry is made without showing justification for the same. It appears that the report of the process server/Serving Officer is obtained without issuing any prior direction for such process or mode and after obtaining the report dated 30-10-1995, another order sheet entry is made. Besides these facts, the manner and style of writing in which the subsequent entry on 30-10-1995 is made also, created much doubt although we are not investigating into this aspect of the matter. However, the fact remains t....
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....t did not mention the names and addresses of the persons who identified the place of business of the assessee, nor did he mention in his report or in the affidavit filed by him that he personally knew the place of business of the assessee. The assessee, however, claimed that they had closed their business long before the notice were issued. On writ petitions filed by the assessee, the High Court held that there was no proper service on the assessee and the order of the Commissioner pursuant thereto could not be sustained. 21. It is also a settled legal position that before service by affixture is accepted, the Court should satisfy itself of the conditions set out in Rule 17 of Order V of CPC. In the case of Gurana v. Kshetre AIR 1944 P. 247 (SC), it was held that where there is no evidence to show that there was any enquiry as to whether there was any local agent or relative competent to accept the service, service by affixture cannot be accepted. In the case of Sambhunath Das v. Sirish Ch. Mohapatra AIR 1985 Ori. 215, it was observed that where the defendant denies the service of notice made through process server, onus of proof shifts to the plaintiff who should prove the esse....
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....ative is not tenable. 24. It was pointed out by the learned Departmental Representative that the fault was with the assessee as it has not intimated the change of its address. The learned CIT(A) has also observed that the assessee conceded that he did not intimate the change of address. This observation does not appear to be correct, firstly because, the assessee has taken this stand that the registered notice which was sent on old address was received at that very address and secondly even if the assessee did not intimate the change of address, then also the obligation regarding the service of notice under section 143(2) was very much thereupon the revenue. 25. The issue relating to limitation for service of notice under section 143(2) was also considered by the Hon'ble Kerala High Court in the case of P. Abdulkadar Hamza v. CIT [2000] 246 ITR 14. In that case, the assessee filed the return and intimation under section 143(1)(a) was issued on 26-2-1993. Later on, the case was selected for scrutiny under section 143(2) and notice proposing to complete the assessment under section 143(3) was sent. Notice under section 143(2) was issued on 2-6-1994. The contention of the as....