TaxTMI 
TaxTMI 
TaxTMI 
2015 (11) TMI 1381
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...., the registry has submitted a note stating that the Committee is not in a position to issue competency certificate to the legal power of attorney holder - Mr. Manubhai Hargovandas Patel. 4. Since the legal power of attorney holder - Mr. Manubhai Hargovandas Patel has insisted upon appearing and arguing before this court by referring to certain provisions of the Code of Civil Procedure, 1908 stating that in view thereof, it was legally permissible to appear on behalf of the petitioner, with a view to ensure that precious judicial time is not wasted in deciding whether or not to allow the power of attorney holder to appear on behalf of the petitioner without the requisite certification from the registry, this court has permitted him to appear and argue on behalf of the petitioner. 5. It is the case of the petitioner that his income being below the taxable limit, he was never liable to file an income tax return under the provisions of the Act. That a notice dated 27th March, 2015 came to be issued by the Income Tax Officer, Ward No.1, Mehsana, who is not the jurisdictional officer. Subsequently, the petitioner received a notice dated 09.07.2015 under section 142(1) read with sectio....
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....ursuant to the notice issued under section 148 of the Act stating that the first notice had been issued by the Income Tax Officer, Ward No.1, Mehsana, who had no jurisdiction to issue such a notice and that the subsequent notice was issued by the first respondent. Various other grounds were also raised in the said letter. 8. The petitioner has, in the aforesaid backdrop, challenged the impugned notice dated 27.03.2015 issued under section 148 of the Act on various grounds raised in the present petition. 9. Mr. Manubhai Hargovanbhai Patel, appearing as legal power of attorney of the petitioner submitted that the impugned notice under section 148 of the Act has been issued by the Income Tax Officer, Ward No.1, Mehsana, who does not have the jurisdiction over the petitioner and hence, the notice is bad on the ground of lack of jurisdiction on the part of the Income Tax Officer to issue such notice. Reference was made to the provisions of section 151 of the Act, to submit that the Income Tax Officer being below the rank of Assistant Commissioner of Income Tax, was required to obtain the permission of the Chief Commissioner or the Commissioner prior to issuance of notice under section....
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.... reassessment made under that section, and that if no notice is issued or if the notice issued is shown to be invalid, then the proceedings taken by the Income Tax Officer without a notice or in pursuance of an invalid notice would be illegal and void. In the facts of the said case, the notice had been served on the manager of the firm. The court held that none of the partners of the firm had been personally served with the notice and the service of the notice was only on the manager of the firm. The manager, on whom the notice had been served, had no specific or written authority to receive the notice. The court held that when the statute provides that a notice should be served in a particular mode, it is not possible to hold that there had been a proper service of notice merely from the fact that the person to whom the notice had been addressed had received the notice through some other source or that he had become aware of the contents of the notice. It was submitted that in the facts of the present case, the notice had been served upon Sitaben Patel and that merely because the petitioner was aware of the contents of the notice subsequently, would not render the service of the n....
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.... not have the jurisdiction to issue notice to the petitioner. It was, accordingly, urged that the impugned notice stands vitiated on the ground of lack of jurisdiction, being vague, as well as on the ground that the notice has not been duly served upon the petitioner. 11. This court has considered the submissions advanced by the legal power of attorney of the petitioner and has perused the record and proceedings of the case. 12. The record reveals that the notice under section 148 of the Act came to be issued to the petitioner on 27.03.2015 in relation to the assessment year 2008-09 by the Income Tax Officer, Ward No.1, Mehsana. Such notice had been issued to Shri Rakesh Vitthalbhai Patel, 3, Vishwakarma Society, Unjha, District Mehsana. Subsequently, it appears that there was a change in the territorial jurisdiction and hence, the case was transferred to the Income Tax Officer, Ward No.4, Patan, who was conferred jurisdiction in view of the change in territorial jurisdiction. Accordingly, the Income Tax Officer, Ward No.4, Patan issued notice under section 142(1) read with section 129 of the Act calling upon the petitioner to file return of income within 30 days of receipt of th....
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....s barred by limitation. Various other grounds, which have already been urged before this court, were also raised in the said communication. The petitioner has also made application under the Right to Information Act calling for certain information on 09.09.2015. The petitioner, through his power of attorney holder, addressed a letter dated 10.09.2015 to the first respondent asking him to take advice/instructions under section 144A of the Act from the Joint Commissioner of his range with reference to the submissions made by him. A communication dated 16.09.2015 addressed by the petitioner to the first respondent has been annexed to the petition (Annexure "J"), wherein it is stated that he had remained present on the said date, however, the officer had informed him that he would be called subsequently. By a communication dated 18.09.2015, the first respondent informed the petitioner to file his application in respect of the directions under section 144A of the Act directly with the Joint CIT, Patan Range, Patan regarding the difficulties being faced by him with the assessment proceedings and to present his case directly before the Joint CIT. By another communication dated 18.09.2015 ....
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....e notice issued under section 148 of the Act clearly shows that the same is issued to the petitioner at the very same address. However, it appears that it is the mother of the petitioner, Sitaben Patel, who accepted the service of the notice. In this regard, reference may be made to the provisions of rule 15 of Order V of the Code of Civil Procedure, 1908, which bears the heading "Where service may be on an adult member of defendant's family" and provides that where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. The Explanation thereto provides that a servant is not a member of the family within the meaning of the said rule. From the facts of the present case, as noted hereinabove, it is manifest that notice has been served upon the mother of the petitioner who is residing with him at the very same address, which is due ....