TaxTMI 
TaxTMI 
2016 (1) TMI 1268
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.... Trikuta Nagar, Jammu is invalid as the said address does not belong to the assessee. (3) That having regard to the facts and circumstances of the case, the Ld. CIT(A), Jammu has erred in law and on facts of the case as the notice u/s 148 was claimed to have been issued by the ITO, Ward 1(3), Jammu on 23.03.2012 who had no jurisdiction over the assessee on the said date. (4) That the appellant craves to leave to add, amend, modify, delete any of the ground of appeal before or at the time of hearing and all the above grounds are without prejudice to each other." 3. At the time of hearing of the case, it was observed that the appeal was time barred by 293 days. The assessee had filed a duly sworn affidavit stating therein that he was not aware of the order of learned CIT(A) passed u/s 250(6) and it was only because of recovery proceedings initiated against him, that he became aware of the order of learned CIT(A) and therefore, he applied for a certified copy of such order on 13.02.2015 and learned CIT(A) provided the same on 20.2.2015. The learned AR, in view of the said affidavit of the assessee submitted that the appeal was not time barred. From the records, it came to our not....
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.... service the notice on the assessee which fact itself is proved from entries in the order sheet where on the date of approval itself the order for affixture was passed. The learned AR in this respect placed his reliance on the following case laws for the proposition that before affixture of notice the serving officer must use with and all 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 on the assessee by affixture. (1) Dr. K.C. Verma vs. ACIT, 84 ITD 33 (Del.) (2) CIT vs. Ramendra Nath Ghosh 82 ITR 888 (SC) (3) Gopal Kumar Dharar vs. DIT in ITA No. 1287 (Kolkata) (4) CIT Vs. Hotline International (P) Ltd. ITR 0333 (Del.) The learned AR further placed his reliance on a number of case laws as mentioned in the paper book page 27 to 44. 4. The learned AR further submitted that second irregularity is regarding affixture at a wrong address at 34 P, Ext. Sec. 1, Trikuta Nagar, Jammu, whereas address of the assessee was 43 P Ext. Sec. 1, Trikuta Nagar, Jammu. In this respect, he took us to a copy of order of affixture placed at paper book page 10 and invited our attention to address m....
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....he rival parties and have gone through the material placed on record. We find that it is an undisputed fact that as per order sheet entries the Assessing Officer, Ward 1(3) received approval for reopening of the case u/s 147 on 23.3.2012 and on the same date notice u/s 148 was issued and the same was affixed on 30.3.2012 at 34 P, Trikuta Nagar, Ext. Jammu. The affixture notice dated 30.3.2012 is placed at paper book page 14. The order sheet entries do not reflect 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 i....
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....matter as it thinks fit; and shall either declare that the summon has been duly served or order such service as it thinks fit. At this stage, the attention is also drawn to Rule 20 which provides the circumstances under which the substituted service can be effected. For the benefit of this order, the provisions of Rule 20 are being reproduced as under : 20. Substituted service - Where the Court is satisfied that 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 ....