2015 (11) TMI 919

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....the assessment to be null and void on account of non-service of notice under section 143(2) of the Income-tax Act, 1961 (hereinafter called in short "the Act"). 3. The appeal in I. T. A. No. 894/LKW/2014 is filed by the Revenue against the deletion of penalty levied under section 271(1)(c) of the Act on account of non-sustenance of the assessment order. 4. During the course of hearing of the appeals, learned counsel for the assessee has invited our attention that no notice under section 143(2) of the Act was served upon the assessee within the period of limitation. In support of his contention, learned counsel for the assessee has invited our attention to the order of the learned Commissioner of Income-tax (Appeals) in which it has been r....

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....d to establish that the conditions contemplated by Order V, rules 17 and 20 existed in the case of the assessee, the notice served by affixture is not a valid service. He accordingly held that notice under section 143(2) of the Act was not served upon the assessee within the prescribed period, therefore, the assessment order was annulled. 5. Aggrieved, the Revenue has preferred an appeal before the Tribunal and the learned Departmental representative has placed reliance upon the order of the Assessing Officer whereas learned counsel for the assessee has contended that onus is upon the Revenue to establish that notice under section 143(2) of the Act was served upon the assessee within the prescribed period. Order V, rule 20 of the Code of C....

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....when notice was issued by ordinary means, i.e., by post or process server and service is not being affected. But in the instant case, according to the Assessing Officer, notice by affixture was issued at the threshold along with ordinary notice by post. It appears that notice by affixture was issued only with an intention to create evidence with regard to the service of notice under section 143(2) of the Act upon the assessee. This is a case of clear negligence of the Assessing Officer. He should have initiated action within the prescribed period and should not have waited till last day of limitation. This type of practice by the Assessing Officer should be curtailed by the senior officers of the Department by issuing warning or taking acti....