TaxTMI 
TaxTMI 
2020 (1) TMI 1526
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....of the Act was served on the assessee after filing of return of income. 3. Shri R.C. Jain & Shri Ajay Daga appearing on behalf of the assessee submitted at the outset that the impugned order is an ex parte order, however, it is amply clear from the assessment order that reopening has been done after a period of 4 years in a manner contrary to the well established principles of natural justice. The learned AR submitted that notice under Section 148 of the Act was not served on the assessee as per the provisions of the Act. Service of notice under Section 148 of the Act was made by way of affixture. The learned AR referred to the report of Inspector at page 26 of the Paper Book. The learned AR further pointed that even the affixture was not ....
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.... was issued to the assessee on 17.06.2016. 5. I have heard the submissions made by rival sides and have perused the orders of authorities below. I have also examined the documents furnished by the assessee in the form of Paper Book. The primary objection raised by the assessee challenging validity of reopening is that notice under Section 148 of the Act was not validly served on the assessee. Undisputedly, notice under Section 148 of the Act was served on the assessee by way of affixture. 6. The provision of Section 282 of the Act deals with service of notice. For the sake of ready reference, the provisions of Section 282(1) of the Act are reproduced hereinbelow :- "282. (1) The service of a notice or summon or requisition or order o....
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....R17 & R20 of CPC are reproduced hereinbelow :- "17. Procedure when defendant refuses to accept service, or cannot be found 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 diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence 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, the serving officer shall affix a copy of the summons on the outer door or some other con....
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....ited the address available with the Department at a time when the assessee is expected to be present at the available address. Before proceeding with substituted mode of service, the Assessing Officer is also required to show that if the assessee was available, he has refused to accept the notice or was deliberately avoiding to accept the notice. Rule 20 mandates that before proceeding with substituted mode of service of notice/summons, the Presiding Officer has to record satisfaction that the notice/summons could not be served in ordinary course. In the instant case, it is not emanating from the records that due and reasonable diligence was exercised by the Assessing Officer for serving notice in the normal course before proceeding with ....
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....e notice under Section 143(2) of the Act to be valid has to be served after filing of return of income by the assessee. The Revenue has not brought on record any evidence to show that notice under Section 143(2) of the Act was served on the assessee after 16.08.2016. The Hon'ble Supreme Court of India in the case of ACIT vs Hotel Blue Moon reported as 321 ITR 362 (SC) has held that issuance of valid notice under Section 143(2) of the Act is a mandatory pre-requisite for assessment/reassessment. The Hon'ble Bombay High Court in the case of ACIT vs Geno Pharmaceutical, 214 taxmann 83 and in the case of CIT vs Abacus Distribution Systems (India) (P.) Ltd., 78 taxmann.com 321 has held that omission to issue notice under Section 143(2) of th....