TaxTMI 
TaxTMI 
2018 (6) TMI 892
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....d by assessee having emanated in the search of SI Parminder Singh & Others of Kapurthala, assumption of jurisdiction u/s 148 was bad in law. This proposition of law is settled by jurisdictional ITAT in case of ITO v/s Arun Kumar Kapoc (2011)140TTJ249(ASR). (c ) That the first appellate authority has failed to appreciate that notice u/s 148 was not served a per law. (d) That without prejudice to the above, even otherwise initiation of proceedings u/s 147/148 was not warranted in the facts and circumstances of the case. 2. That on facts and circumstances of the case, the reassessment order u/s 147 is bad for non pleading of Legal Heir of the assessee. Non service of statutory notices or assessment order also vitiates the assessment. 3. That the First Appellate Authority failed to appreciate that non issue/service of statutory notice invalidates reassessment order u/s 144. 4. That the authorities below failed to appreciate that the land in question in not a capital asset much less to be brought to tax under the head Income from Capital Gain. 5. That the reassessment order has been passed in violation of principle of natural justice....
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....essee emphasized on the grounds No.1(c), 2 and 3, which relates to the non-service of notice u/s 148 and 142(1) of the Act as per law. The Ld. AR argued that in the instant case, the assessee had already expired on 16.05.2010, however, the AO had issued notice dated 29.03.2012 u/s 148 of the Act in the name of the deceased assessee, which claimed to be served through affixture on 31- 03-2012 and thereafter, notice u/s 142(1) dated 29.05.2012 was issued which also claimed to be served through affixture on 29.05.2012. It is clearly reflects from para No.2 of the assessment order that notice u/s 148 of the Act was issued on 29.03.2012 and was served through affixture on 31.03.2012. It is further reflects from the assessment order that the subsequent notice u/s 142(1) was served through affixture upon the legal heir of the assessee. It is admitted fact that no notice u/s 148 and 143(2) of the Act in the name of the legal heir Smt. Sonil Bedi was ever issued, therefore, the assessment framed by the AO on the basis of notice issued u/s 148 of the Act in the name of (deceased assessee) is not only invalid but also vitiate the entire proceedings and hence, the addition is liable to be dele....
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....hronological dates and events, it is clear that the assessee had expired on 16th May, 2010 which although was not in the knowledge of the Revenue Department, however, the notice u/s 148 was issued on 29th March, 2012 in the name of the deceased assessee which claimed to be served by affixture on 31st March, 2012 and again the notice u/s 142(1) claimed to be served through affixture on 29-05-2012 upon the deceased assessee and thereafter, getting knowledge about the factum of the death of the assessee, the Assessing Officer initiated the proceedings against the legal heir of the assessee i.e. Smt. Sonil Bedi and issued a notice u/s 142(1), which also claimed to be served on 18.02.2013 through affixture only and thereafter finding no response from the legal heir, the Assessing Officer framed the assessment u/s 144 of the Act. It is admitted fact of the case that the initial notice u/s 148 was issued in the name of the deceased assessee and was served through affixture only and thereafter notice u/s 142(1) was also served to the deceased assessee on 29.05.2012 through affixture only and thereafter notice u/s 142(1) dated 18.02.2013 was also served to the sole legal heir of the decease....
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....rving the notice in the ordinary way and if the notice cannot be served in the ordinary way on the reason that the Assessee cannot be found, after using all due and reasonable diligence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, and the Assessing Officer is satisfied that there is a reason to believe that the Assessee 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, then only the Assessing Officer can order for service of summons by way of affixing a copy thereof in some conspicuous place as defined under Rule 20 of order-5 of the CPC but not otherwise . 7.6 From the assessment order, it does not reflect that the Assessing Officer had ever tried to issue and serve the alleged notice(s) in ordinary way and after exhausting ordinary attempt, while recording the reasons, adopted the substituted service by way of affixture upon the deceased assessee. As it is clearly reflects from the chronological dates and events that....