TaxTMI 
TaxTMI 
2008 (7) TMI 520
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....ng substantial questions of law have been raised in the present appeal: "(A) Whether, on the facts and in the circumstances of the case, the Tribunal has erred in law in holding that there was no valid ser vice of notice under section 143(2) before the due date, though not only notice under section 143(2) was sent by registered post on October 30, 2002, i.e., before the expiry of limitation on October 31, 2002, and another notice under section 143(2) was served by affixture on October 31, 2002? (B) Whether, on the facts and in the circumstances of the case, the Tribunal has erred in law in holding that non-mentioning of time of affixture by the Inspector on the notice issued under section 143(2) of the Income-tax Act served through af....
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....ued and sent by registered post on October 30, 2002, at 4.05 p. m. The notice was served on the assessee on November 1, 2002. The assessee has taken a plea that the proviso to sub-section (2) of section 143, requires the notice to be served before the expiry of 12 months from the end of the month in which the return was furnished, since the service of the notice is not within the limitation provided, there is no valid service on him. It is further pleaded that any action taken pursuant to such invalid notice was liable to be set aside and the assessment framed to be annulled. The facts are not in dispute in this case. The Tribunal, vide its order dated August 24, 2007, has after going through the details of the pleadings, the records and....
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....e assessee is deliberately avoiding service of notice particularly when notice was never effected to have been served. If the Revenue authorities try to serve the notice at the last hour after the close of office hours, the fault lies with the Assessing Officer and not with the assessee. There is not a single instance demonstrated that the assessee has avoided service of notice. This leaves us to believe that the service by affixture is a make belief story and not real sequence of events. In the said affixture some glaring points which can be observed are as under: (a) No time is mentioned by the notice server in his report when he approached the premises of the assessee to serve the notice. Similarly, no time is mentioned by the Assessi....
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....agent shall be sufficient. 6. It is not in dispute that personal service on the assessee was not effected in the present case. Further, it is not disputed that notice dated October 31, 2002, sent by registered post was served on the assessee on November 1, 2002, which is beyond the limitation prescribed. The only claim, therefore, of the Department is that service of notice was effected on the assessee by affixture. Rule 17 deals with the service by affixture and the same is reproduced herein under: "17. 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 resid....
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....ions clearly spell out the circumstances under which affixture or substituted service can be ordered. For taking resort to this pro cedure, the court/competent authority must be satisfied that the defendant is purposely keeping out of the way for avoiding service and or that for any reason, the summons cannot be served in the ordinary way. Before affixture, the serving officer of the summons, must use his due and reasonable diligence to find out the defendant/respondent and if the circumstances as mentioned in rule 17 exist, then and only then, the notice may be served by affixture and that too in the presence of witnesses by whom the house was identified and in whose presence the copy was affixed. Merely because the noticee in this case ha....
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....rom the end of the month in which the return was furnished. In the present case, as held above, no valid notice was served upon the assessee within the prescribed period and was served beyond the period of 12 months, the same is not valid service in the eyes of law. That being so, any action taken pursuant to the said invalid notice is liable to be set aside and the assessment framed is to be annulled. 12. It has been argued by counsel for the Revenue that even if notice under section 143(2) was not properly served on the noticee it should have been treated as a defect and such irregularity is curable under section 292B of the Act. We are afraid that resort cannot be had to this provision to validate the mandatory requirement of service ....