2018 (10) TMI 588

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....9.2010 was sent to the assessee at the address i.e. 2-D.C. Nagar, Cannt Road, Mithapur, Jalandhar through speed post, however, the same was returned un-served in the office of the Revenue Department with remarks of the postal authorities "baar baar jaan the prapatkarta is patay te nahi mileya, is lyee RC bina takseem vapis keeti jandi hai ... dated 29.09.2010". However, from the record, it appears that on dated 28.09.2010, the Assessing Officer passed the affixture order with remarks that: "Where as I am satisfied that service of Notice ii/s 143(2) of the Income-tax Act, 1961 for the Asstt. Year 2009-10 is not possible by ordinary means on Sh. Om Parkash Sharma, 2, DC Nagar, Cantt Road, Mithapur, Jalandhar. I hereby direct....

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....ted 29.09.2010." 5. However, the Assessing Officer on satisfying about the non possibility of service of notice through ordinary means, decided to serve through affixture at the last known address of the assessee. It is really surprising that the notice sent through speed post remained undelivered upto 29th Sep., 2010 and thereafter the same must have been received by the Assessing Officer after 2 and 3 days, may be on 1st October, however, the A.O. passed the affixture order on 28.09.2010. We have failed to understand as to how the A.O. has perceived on 28.09.2010 about the non-service of the notice on the assessee that apparently seems to be mere formality without any basis ,which creates many doubts and shrouds in the genuineness of t....

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.... Income Tax Officer Ward -3, Phagwara (ITA No.02(Asr)/2017) . Relevant part of the order is reproduced herin below: 7.2 Rule-1 of Order V of CPC, enumerates the procedure for issuing the summons and according to the rule-10 of Order-V of CPC, service of summon(s) shall be made by delivering or tendering a copy thereof signed by the judge or such officer as he appoints in this behalf, and seal of the Court. 7.3 Rule 17 of order V further enumerates the procedure when defendant refuses to accept the service, or cannot be found. Rule 17 further mandates that where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving Officer, after using all due and reasonable d....

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.... 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 t....

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.....02.2013 u/s 142(1) has also been claimed as served upon the legal heir, through affixture only. While serving the notice through substituted service to the sole legal heir of the assessee, the Assessing Officer never tried to serve the legal heir in the ordinary way, however made an attempt only through substituted service which also create lots of doubts about service and validity of the notices which according to our mind is not mere procedural requirement but mandatory. 7.7 The judgments relied upon by the Ld. AR, in support of assessee's case speaks about one thing only that proper notice u/s 148 of the Act for initiating reassessment proceeding is not a mere procedural requirement but the service of the prescribed notice ....