TaxTMI 
TaxTMI 
2017 (7) TMI 1046
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.... assessment was completed under section 144 of the Income Tax Act, 1961 (hereinafter called "the Act") at an income of Rs. 59,65,340/-. The AO has noted in the assessment order that notice under section 143 (2) of the Act was issued and served upon the assessee within the stipulated period. He has also mentioned that various notices were issued from time to time along with the questionnaire but all of them remained un-complied with. The AO further mentions that finally a notice under section 143 (2) of the Act was issued along with the detailed letter dated 25th of November 2010 which was served by affixture on the last known address of the assessee on 29/11/2010 providing the assessee a final opportunity to file the details by 06/12/2010. ....
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....Ld. AR submitted that the return of income was filed on 12/11/2008 and as such the notice under section 143 (2) of the act was to be served on or before 30 of September 2009 whereas the 1st notice was issued on 14/09/2009 and served by affixture on 24/09/2009 at "123 Hargobind Enclave, Delhi - 110092. The Ld. AR submitted that this property had already been sold on 04/02/2008 and the capital gain had been declared in the return for assessment year 2008-2009 and as such the said property was not in the ownership of the assessee on 24/09/2009 when the affixture was made. It was further submitted that the income tax return for assessment year 2009- 10 was filed on 04/09/2009 in which the address was given as "H - 234, Naraina Vihar, Naraina Ne....
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.... getting it affixed at the address mentioned in the return of income for assessment year 2008-2009. The Ld. Departmental Representative also submitted that the AO has mentioned in pages 1 and 2 of the assessment order that the impugned notices were duly served. The Ld. Departmental Representative relied on the findings of the AO and submitted that the service of notice was a valid one and the dispute was being created by the assessee to avoid confirmation on merits of the case. 5. The rival submissions have been heard and the relevant material on record has been perused. The Ld. CIT (A) has mentioned in Para 6 of the impugned order that the assessee had not offered any comments on the AO's remand report as to why the address mentioned in t....
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....t all by the assessee. It is an admitted case of the revenue that when the officials of the IT department went to serve the notice under S.148 for the assessment year 1995 - 96, the security guard informed them that the company was closed for Holi festival holidays. The security guard by no stretch of imagination can be said to be the agent of the assessee and admittedly no notice was tendered either to the assessee or his agent nor the same was refused either by the assessee or his agent. 23. Under order V, r.17 of the CPC, the fixation can be done only when the assessee or his agent refuses to sign the acknowledgement or could not be found. Here, in the present case, no effort was made by the IT department to serve the notice upon the ....
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.... wherever it is practicable, service has to be effected on the defendant in person or on his agent. Order V, rule 17 of CPC further provides that the affixture can be done only when the assessee or his agent refuses to sign the acknowledgement or cannot be found. Thus, for resorting to affixture, efforts have to be made to serve the notice upon the assessee and only after reaching a finding that the notice cannot be served upon the assessee, the mode of affixture can be resorted to. Further rule 17 of order V of CPC mandates that an independent local person be the witness of service through affixture and for the purpose of having been associated with the identification of the place. However a perusal of the affixture report shows that there....