TaxTMI 
TaxTMI 
2017 (1) TMI 1383
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....ide impression that earlier counsel has filed the appeal against the order of the Commissioner of Income Tax (Appeals)-I, Nagpur within a specific time limit, therefore, the deponent (assessee) has not filed any appeal against the order. When the Tax Recovery Officer approached for recovery of demand the deponent (assessee) contacted in the office of Adv. M. Mani and received the file in the last week of June, 2015. Thereafter, deponent (assessee) approached to new counsel office Adv. Manoj Moryani and after going through the record it is found that the appeal has not been filed against the Ex-party order passed by the Commissioner of Income tax (Appeals)-I, Nagpur. The deponent (assessee) has filed application before the Hon'ble Income Tax Appellate Tribunal, Nagpur Bench, Nagpur on 26/10/2015 and request that delay in filing of appeal by 555 days may kindly be condoned due o aforesaid reason." In this regard notice of the Tax Recovery Officer dated 29/07/2015 has also been submitted. 3. The learned counsel of the assessee has also placed reliance on the following case laws in support of the plea for condonation of the delay. 1. 1981 AIR 1400 Rafiq & Anr. V....
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.... the assessee and without going into to the merits of case confirming the addition, therefore order passed is illegal, invalid and bad in law. 6. The learned counsel of the assessee has also filed additional grounds as under : "1. The notice issued u/s 148 of I.T. Act, 1961 is illegal, invalid and bad in law and consequent assessment framed u/s 144 r.w.s. 147 of I.T. Act, 1961 is liable to be cancelled. 2. The notice issued u/s 148 of I.T. Act, 1k961 in the case of assessee has not been served on assessee in accordance with law and the consequent assessment framed thereupon is illegal, invalid and bad in law and liable to be cancelled. 3. Reasons recorded for issue of notice u/s 148 of I.T. Act, 1961 having not been provided to assessee the assessment framed is liable to be cancelled. 4. The learned Assessing Officer ought to have telescoped the income and unexplained investment while determining total income at the hands of assessee. Since the additional ground sought to be raised by the assessee do not involve investigation of new facts and the same relate to interconnected grounds of appeal and have impact on the same subject matte....
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....ice U/s 148 and if not to show cause as to why prosecution proceedings U/s 276 CC should not be initiated for willful failure to file the return of income. The assessee vide this Office dated 21.7.2009 submitted that assesse has not received the notices issued U/s 148 of the Income Tax Act, 1961. Then on 22.7.2009, the assessee was informed that the notices UIs 148 of the Income Tax Act were duly served in your cases for the below mentioned Assessment Years on 26.03.09, by way of affixture, in the presence of two witnesses. This office has all the necessary evidence to prove that the notices u/s 148 has been properly served: The assessee vide his reply dated 29.7.2009 still maintained that the notices have not been received by the assessee. Then on 5.8.2009, a notice U/s 142(1) was again sent to the assessee mentioning all the details that: "A survey action u/s 133A was conducted in your? Case on 24.11.2008. During the course of survey proceedings/some documents pertaining to you were found and impounded. A copy of all such documents has already been given to you. Considering your reply dated 29.7.2009/your returns tiled u/s 139 and the documents found and seized during th....
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....2009. Again on 20.8"-2009, adjournment was requested and the case was adjourned for 27.8.2009. A,9;ain on 27.8.:2009. adjournment was sought for and the case was adjourned to 2.91.200J. None attended on 2.9.2009 and no submission "pas furnished. Again a notice U/s 142(1)) and notice U/s 274 r. w. s. 271 (1) (b) was issued on 20.10.2009, fixing the case for hearing on 30, 10.2009 and also a summons U/s 131 was issued on 27.10.2009 to produce all the documents called for vide notices issued U/s 142(1). As expected, no documents, as called for. vide notices issued U/s 142(1) were filed. On 3.11.2009, the assessee attended without any of the documents called for by the Department. Still, a statement U/s 131 was recorded and the assessee was specifically asked to produce all the documents latest by 6.11.2009. The assessee assured to explain all the impounded documents on 6.11.2009 but neither the assessee nor the Counsel for the assessee attended nor any explanation/documents were filed, except for adjournment letter. 8 From the above narrated facts, it can be inferred that the assessee has scant regard for the Income Tax proceedings and has no explanation to file before the De....
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....king additions as bad in law. The assessee has placed reliance on the judgement of Hon'ble Apex Court in the case of CIT vs. Tayab Ali Mulla Jivaji Kapasi reported in 66 ITR 147 (SC). The A.R. of the appellant has also referred to the provisions of Sec. 282 of the IT Act, 1961. The contention of the AR is that notice u/s 148 has not been served by post. Further, the AR states "provision for service of summon issued by Court under the Code of Civil Procedure are provided in order V of Civil Procedure Code. The aforesaid provision provides the procedure required to be followed for valid service of summons under various rules contained in Order V. On the basis of facts and evidence on record, the procedure prescribed under Order V of Civil Procedure for service of notice by affixture has not been complied with in the case of the assessee. In view of the above, there is no valid service of notice issued u/s 148 of the I.T. Act, 1961." 5.2 The appellant has also placed reliance on the decision of ITAT, Amritsar Bench in the case of DCIT Vs. K.G. Singhania in ITA No. 281/282/ASR/2008 reported in 126 TTJ 373 and decision of ITAT, A gra Bench reported in 126 TTJ (AGR) 346.Thus, ba....
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.... course of survey are considered as the material available on record and it is proposed that assessment would be completed by affording you of an opportunity of being heard to state your case and to explain the documents found and impounded during the course of survey U/s133A of the IT. Act, by way of issue of this notice u/s 142(1).)." 6.1 Finally, the AO vide letter dated 17.08.2009 informed the assessee that the assessment would be completed on the basis of the return of income and other material impounded during the survey action for want of any compliance on the part of the assessee, However, the assessee did not file any explanation on the impounded material and reiterated that the service of notice u/s 148 by affixture is not valid. Thereafter, adjournment was sought by the appellant on 17.08.2009 and subsequently which were allowed by the AO. The details of adjournment sought by the assessee, which were allowed by the AO, are elaborately discussed in Para 7 of the assessment order and the relevant finding in this regard is as below : 7. An adjournment was S011g1u for on 17.8,2009 and the date was fixed for 20'.8.2009. Again on 20.8"-2009, adjournment w....
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....han by way of affixture. The reports of the Inspector and the Notice Server are duly found placed on record, which clearly reveal that the appellant and the staff present at the business premises had shown their total reluctance to accept the statutory notice from the authorities. The AR of the appellant has not brought out any evidence contrary to the facts available on record. The facts available on records including the relevant reports clearly demonstrates the non-cooperative attitude of the appellant. The fact that the AO for want of compliance from the appellant was constructed to pass the assessment order ex-parte u/s 144 of the Act, also shows the non-co-operative approach of the appellant towards official proceedings. It is perused from the record that ample opportunities were conferred upon the appellant to explain the contents of the impounded material found during the survey action, but the appellant chose not to avail such opportunities. The ratio of the decisions relied upon by the appellant is not applicable to the facts of the case of the appellant. The facts of the case make it abundantly clear that there was no procedural lapse in service of notice u/s 148 of the ....
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.... On 21/07/2009 A.O. Page-2, Para-4 On 29/07/2009 A.O. Page-2, Para-4 On 17/08/2009 A.O. Page-3, Para-5 On 23/11/2009 A.O. Page-4, Para-8. C) Before Hon'ble CIT(A) it was submitted that notice is not served on assessee and he has never refused to receive service of notice from his side. CIT(A) Order Page-2. D) Notice u/s 148 were never refused by assessee or his agent for service. Assessment years under consideration are 2003-04 to 2005-06. Survey u/s 133A was made on 24/11/2008. Notice u/s 148 are issued on 26/-03/2009. Affixture is made on 26/03/2009. Enough limitation to serve the notice u/s 148 of I.T. Act 1961 was available with A.O. of more than one years for Asstt. Year 2003-04 and for other years much more than that A.O. has hurriedly resorted to process of affixture for no valid justification. E) Reasons recorded not provided to assessee by learned A.O. and even by Hon'ble CIT(A). Request made before A.O. on 25/01/2010 A.O. Page-4, Para-8. Request made before Hon'ble CIT(A) &....
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....s taken place. M) A.O. has not made reasonable attempts to service notice in regular manner and was not justified to resort to make substituted service of notice. Even alleged substituted service of notice is not in accordance with law and is no valid service of notice u/s 148 of I.T. Act 1961. Reliance on: i) ITAT order in ITA No. 289(Asr)/2013 in the case of Sh. Parshotam Singh vide order dated 04/08/2016. ii) ITAT order in ITA No. 1111/PN/2013 in the case of Anil Khatri vide order dated 31/03/2016. iii) ITAT order in ITA No. 5221/Mum/2014 in the case of Shri Sanjay Badani vide order dated 09/09/2014. iv) (2015) 43 ITR (Trib) 0635 (Delhi) Sumanglam Sewa Awam Educational Samiti vs. CIT. v) (2010) 328 ITR 0173 (P&H) CIT vs. Kishan Chand. vi) (2010) 1 ITR 0001 (Agra) Arun Lal vs. ACIT. vii) (2008) 296 ITR 0333 (Delhi) CIT vs. Hotline International (P) Ltd. viii) (1973) 89 ITR 0136 (All.) CIT vs. Satya Narain Poddar. ix) (1977) 110 ITR 0027 (All.) Jagannath Prasad & Ors. Vs. CIT & Ors. x) (1971) 82 ITR 0888 (SC) CIT & Ors. Vs. Ramendra Nath Ghosh. xi) (1973) 88 ITR 037....
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....lf. In this regard before proceeding further I may gainfully refer to the relevant laws relating to service of notice in this regard as under : "[Service of notice generally, 282.(1) The service of notice or summon or requisition or order or any other communication under this Act (hereinafter in this section referred to as "communication") may be made by delivering or transmitting a copy thereof, to the person therein named - (a) by post or by such courier services as may be approved by the Board; or (b) in such manner as provided under the Code of Civil Procedure, 1908 (5 of 1908) for the purposes of service of summons; or (c) in the form of any electronic record as provided in Chapter IV of the Information Technology Act, 2000 (21 of 2000); or (d) by any other means of transmission of documents as provided by rules made by the Board in this behalf. (2) The Board may make rules providing for the address (including the address for electronic mail or electronic mail message) to which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named. Explanation - For th....
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....ate) less than two hundred miles distance from the court-house. 5. Summons to be either to settle issues or for final disposal The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly: Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. 6. Fixing day for appearance of defendant The day for the appearance of the defendant shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the serves of the summons; and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day. 7. Summons to order defendant to produce documents relied on by him The summons to appeal and answer shall order the defendant to produce all documents in his possession or power upon which he intends to rely in support of his case. 8. On issue of summons for final disposal, defendant to be directed ....
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....nt has no agent empowered to accent the service, it may be made on any agent of the defendant in charge of the property. 23[15. Where service may be on an adult member of defendant's family Where in any suit the defendant is absent Prom his residence at the time when the service of summons is sought to be effected on his 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. Explanation.- A servant is not a member of the family within the meaning of this rule.] 16. Person served to sign acknowledgement Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons. 17. Procedure when defendant refuses to accept service, or cannot he found Where the defendan....
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....t, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain: Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary. (2) When an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for other reason, has been received by the C....
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....ice. Hence, it is not possible to hold that the assessees had been given a proper opportunity to put forward their case as required by s. 33B. Ramendra Nath Ghosh vs. CIT (1967) 66 ITR 414 (Cal) : TC57R affirmed. Notice -Service by affixture-Validity-Name of person who identified assessee's business premises not mentioned in the report of Inspector- Inspector also did not claim personal knowledge of assessee's premises - Service of Notice by affixture is invalid." (2) CIT vs. Kishan Chand. 328 ITR 173 (P&H): "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 judgement assessment. The CIT(A) accepted the appeal mainly on the ground that the assessee had not been served. Evidence with regard to service of affixture was rejected on the ground that resort to affixture could not be straightaway taken without first taking other modes of service. The Tribunal affirmed the said finding. It was observed : "From the facts of the case, I find that the search and seizure operations had been taken at the bu....
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....er 5, r. 19A of the CPC, the notice sent by registered post ought to have been sent along with acknowledgement due, but admittedly, it was not sent with acknowledgement due. So, from the entire material available on record there is no hesitation in holding that there has been no valid service of notice under s. 148 upon the assessee as the same was neither tendered to the assessee or his agent, nor the same was refused by either of them. Since there has been no proper service of notice on the assessee, the reassessment proceedings, resulting in the order dt. 30th Jan. 2003, are bad in law. Conclusion: There was no valid service of notice under s. 148 where it was not tendered to assessee or his agent nor refused by them, no effort was made by serving officer to locate the assessee before affixation and notice sent by registered post was not accompanied by acknowledgement due, hence reassessment was bad in law." 17. Now I examine the present case on the anvil of the aforesaid case laws. In this case it is the claim of the Revenue that notice u/s 148 was issued on 26-03-2009. Upon refusal of the assessee to receive the notice, affixture was also made on the same date i....