TaxTMI 
TaxTMI 
2016 (8) TMI 1180
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....As the assessee has raised jurisdictional issues, therefore, the assessee was directed to proceed with his arguments on jurisdictional issue. 5. At the outset, the learned AR invited our attention to learned CIT(A)'s order at page-4 and submitted that learned CIT(A) himself has admitted that the notice u/s 148 was issued on 30.03.2010 and on the same date the notice was affixed at the residence of assessee. The learned AR submitted that the learned CIT(A) has also noted that the said affixture was witnessed by Sh. Wazir Singh, Waterman-cum-Mali of the Office. In view of the above facts, the learned AR submitted that notice served through an affixture without following the procedure as laid down in CPC was bad in law and, therefore, assessment itself needs to be quashed. Reliance in this respect was placed on the following decisions. (i) Sumanglam Sewa Awam Education Samiti V/s ACIT 43ITR (Trib) 635, ITAT- Del. (ii) CIT vs. Kishan Chand 328 ITR 173 (P&H HC) (iii) CIT vs. Ramendra Nath Ghos 82 ITR 888(SC) It was further submitted that the case laws relied upon by Assessing Officer were not applicable to the facts and circumstances of the present case,....
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....ntire reassessment proceedings, resulting in the order dated 30.12.2008 are bad in law and the order passed u/s 148/143(3) dated 30.12.2008 is quashed. The other grounds of appeal become in fructuous and are not being adjudicated upon. (Para 9) Conlcusion: Reassessment u/s 148 shall be invalid when no notice is tendered either to Assessee or his agent nor service of notice if refused either by assessee or his agent." Similarly, the Hon'ble Punjab & Haryana High Court in the case of CIT vs. Kishan Chand (supra) has held that where no other mode was adopted and steps for service of notice through affixture were taken about a week before the time was expiring, the notice cannot be said to have been properly served. The findings of the Hon'ble Court as contained in paras 2 to 4, are reproduced below. "2. The assessee is individual and as a sequel to the search and seizure operation was conducted on his premises, he filed revised return. The AO framed assessment under s. 144 of the Act on the basis of best judgment. The CIT(A) accepted the appeal mainly on the ground that the assessee had not been served. Evidence with regard to service by affixtur....
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....any effort on the part of Assessing Officer to serve the notice by post or by other ordinary means of service as required by section 282. Section 282 requires the service of notice by post or courier or in such manner as provided under CPC, 1908 in order V, Rule 12 to 20. Various decisions of the Tribunal and Courts as relied upon by the learned AR has held that before resorting to the manner of service by the affixture the Assessing Officer has to take reasonable and sufficient steps to service the notice through post. The Hon'ble ITAT, Delhi in the case of Dr. K.C. Verma vs. ACIT, 84 ITD 33 (Del.) reproducing the provisions as contained in Order V, Rules 12 to 20 has held as under: "8. Section 282 provides the manner in which a valid service can be affected. Accordingly to this section, a notice under the Act is to be served either by post or as if it was summon under the Code of Civil Procedure, 1908. In the present case, admittedly, notice was never sent by post. So the question arises whether the service was effected in accordance with the provisions of Civil Procedure Code. The relevant provisions of the service of summons under the Code of Civil Procedure are contai....
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....hat there is 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 ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. The perusal of the above provisions shows that before ordering for substituted service, the Court must be satisfied that the defendant is keeping out of the way for the purposes of avoiding service or that for any other reason the summons cannot be served in the ordinary way. Further, before affixture the serving officer must use its due and reasonable diligence to find out the defendant and if the circumstances as mentioned in Rule 17 exist then only the notice may be served by affixture that too in the presence of witnesses by whom the house was identified and in whose presence the copy was affixed. This view finds support from the judgment of the Apex Court in the....