TaxTMI 
TaxTMI 
2018 (4) TMI 1277
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....he Ld. CIT(A) ought to have seen that no notice u/s 148 was received by the appellant or by anyone on behalf of the appellant. The Ld. CIT(A) also ought to have seen that GPA holder (Ex-IAS Officer) of the appellant has been living in the house for more than 40 years along with his family and has been receiving all communications addressed to the appellant. (b) The Ld. CIT(A) ought to have seen that the property of the appellant sold was 50 years old brick and lime construction with ACC roof and having Samadhi in the site which brought down the marker value of the property. The Ld. CIT(A) is not justified in upholding the computation of capital gains arrived at by the Assessing Officer who took into account the SRO registration value of the property. 3. For all the above and such other grounds as may be urged at the time of hearing it is most respectfully prayed that the Hon'ble Tribunal be pleased to direct the Assessing Officer to cancel the order passed u/s 143(3) r.w.s. 147 in the interest of justice." 3. Brief facts of the case, relevant for disposal of the appeal, are stated herein. Assessee sold a property situated at Basheer Bagh, Hyderabad for a consid....
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.... notice by affixture since Sri K. Umapathy has been living in the same house for more than 40 years along with his family where watchman was always present and he has been receiving all the communications addressed to the assessee and has been taking due action on all of them. On merits also it was submitted that the property sold was about 50 years old at the time of sale and it was built with brick and lime. Since the property was sold to the tenant's family who were staying in the said property since many years before the sale and was refusing to vacate, it had to be sold at a price agreeable to them and there were other reasons as to why the property could not have been sold at a high price and thus A.O. was not justified in taking the SRO value as the sale criteria. 7. Ld. CIT(A) observed that a notice was initially sent by speed post on 07.06.2013 but in the absence of any proof of service of such notice, ITI was sent to serve the notice on assessee and as per the ITI's report dated 24.06.2013, notice was served by affixture since the enquiries with the bystanders showed that none of them were aware of the name of the assessee. The door was not open and no one responded fr....
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....heet entry does not speak of service of notice in 2013 which indicates that there is no such service of notice u/s 148 in the year 2013 and only when the assessee raised objection to the notice issues u/s 142(1) of the act, the Revenue claims that the notice was served earlier but the same is not backed by any proof. He also relied upon a decision of the ITAT Mumbai "E" Bench in the case of Shri Sanjay Badani vs. DCIT (ITA No.5221/Mum/2014) dated 09.09.2014 to contend in case of service of notice by affixture the serving Officer should state in his report the name and address of the person by whom the house / premises was identified and in whose presence copies of the summons were affixed and these facts should also be verified by an affidavit of serving Officer, as otherwise, such service should not be accepted as legally valid service of notice. Learned Counsel for the Assessee submitted that in the appeal on hand ITI has not mentioned name and address of the witness, who has identified the house or the person in whose presence the notice was affixed and thus the service of notice is invalid. 11. Learned Counsel for the Assessee has also taken us to the decision of the ITAT "B....
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....in the case of Capital Gem Overseas (P.) Ltd., vs. Income Tax Officer (101 ITD 117) wherein the Bench observed that a notice sent through speed post is a proper procedure and it can be inferred that the notice has been served upon the assessee at the address at least within 3-4 days since sending notice by speed post is a recognised mode. Learned Departmental Representative thus submitted that the acknowledgement of Department of Posts indicating that in the name of Smt. T. Shobha Reddy a cover has been sent by speed post on 09.07.2013 is a sufficient proof of service of notice unless the assessee proves that there is some other case pending in the name of the assessee for which a notice / letter was issued on the same date. In the instant case, there was no communication between the assessee and the Revenue except for the notice issued u/s 148 of the Act on the said date and therefore a notice issued is deemed to be valid and it has to be assumed that it was served within a reasonable time. On merits, Learned Departmental Representative relied upon the orders passed by the Tax Authorities. 13. I have carefully considered the rival submissions and perused the record. The main pl....
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....nnot be assumed that the notice was sent by speed post before deputing the ITI. Therefore, we confine ourselves to the claim of the Assessing Officer with regard to service of notice by affixture by the ITI. The report of the ITI clearly shows that the ITI has not made any enquiry with the neighbours or with some responsible person in the locality but claims to have made enquiry with "bystanders" but their names are also not mentioned. Section 282 of the Income Tax Act, 1961 prescribes the mode of service. Though the Income Tax Act is a self-contained Code by itself, with regard to mode of service of notice by affixture it refers to the provisions of CPC whereby a duty is cast upon the Assessing Officer to make a real and substantial effort to find out the person on whom notice has to be served and after using due diligence, if the notice could not be served on the person concerned he has to opt for the alternative mode i.e., service by affixture and in such an event serving officer has to specify the name and address of the person by whom the house or premises was identified and in whose presence the copy of the summon was affixed. These facts should also be verified by an affidav....