TaxTMI 
TaxTMI 
2021 (10) TMI 1148
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.... S Deo, the wife of the assessee, it was found that she had invested a sum of Rs. 37 lakhs in an immovable property, whereas, she had not filed any return of income. As alleged by the assessing officer, in the re-assessment proceedings assessee's wife stated that investments were made by her husband Shri Sanjeev Chandrakant Deo, the assessee before us. As observed by the assessing officer, on verifying records he found that the assessee had not filed his return of income for the impugned assessment year. Further, as per information available on record, he found that besides investing in house property, the assessee had incurred credit card expenditure of Rs. 7,75,827/- and has also received interest income of Rs. 17,862/-. Being of the view that income aggregating to Rs. 44,83,689/- has escaped assessment, the assessing officer reopened the assessment u/s 147 of the Act by issuing notice under section 148 of the Act. Ultimately, the assessing officer completed the assessment under section 143(3) r.w.s. 147 of the Act vide order dated 27-03-2015 making the following additions:- 1. Unexplained cash credit u/s 68 of the Act Rs. 10,06,503/- 2. Investment from undisclosed....
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....383 ITR 455 (Del) - Section 292BB would have no application & cannot cure jurisdictional defect. 6. Without prejudice to the aforesaid submission, learned counsel submitted, though, the AO had alleged that the assessee had not filed any return of income for the impugned assessment year, however, the assessee, in fact, had filed his return of income for the impugned assessment year in terms of section 139 of the Act and the return of income so filed was also processed under section 143(1) of the Act. Thus, he submitted, the very basis for reopening the assessment is erroneous. Therefore, the assessment order passed in pursuance to such wrong initiation of proceeding would be invalid. In support of such contention, he relied upon the following decisions:- 1. Sagar Enterprises vs ACIT (2002) 257 ITR 335 (Guj) 2. Mumtaz Haji Mohmad Memon vs ITO (2018) 408 ITR 268 (Guj) 3. Baba Kartar Singh Dukki Educational Trust vs ITO (2016) 158 ITD 965 (Chandigarh Trib.) 7. Strongly relying upon the observations of the assessing officer and learned Commissioner (Appeals) the learned departmental representative submitted, the issues regarding valid service of notice i....
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....resent in the said address. Hence, the notice u/s 148 was served by way of affixture on the door of the said flat as it is the last known address of the assessee in the presence of Shri.Himanshu Sayana, Inspector Jt. CIT 23(3), Mumbai. Submitted. Priya Vinerkar Sd/- Inspector-23(3)(3), Mumbai. Sd/- Himanshu Sjiayana Inspector Jt. CIT- 23(3), Mumbai" 10. Thus, a reading of the report reproduced above would make it clear that as per the directions of the assessing officer, the concerned authority went to the address of the assessee and since the assessee was not present at the said address, he served the notice by way of affixture on the door of the said premise. At this stage, it is necessary to refer to section 282 of the Act which lays down the mode and manner of service of notice, which is as under:- "[Service of notice generally. "282. (1) The service of a notice or summon or requisition or order or any other communication under this Act (heiinafter in this section referred to as "communication") may be made by delivering or transmitting a copy thereof, to the person therein named,- (a) by post or by such courier ....
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....residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf. In such circumstances, the serving officer can affix a copy of the notice / summons on the outer door or some other conspicuous part of the house where the addressee / person stays and shall return the original to the Court with a report stating that he has affixed the copy of the notice / summons, the circumstances under which he did so and the name and address of the person, if any, by whom the house was identified and in whose presence the copy was affixed. Rule 20 of Order V, CPC also provides for substituted service in a situation when Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service and that for any other reason, the summons cannot be served in the ordinary way, then such summons / notice can be served by way of affixture in the last known address. 13. Thus, a conjoint reading of section 282 of the Act and Order V Rules 17 and 20 of CPC would make it clear that the mode of service by affixation can be resorted to only if none of the other modes are practicable and cannot be reso....
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.... initiation of proceedings under section 147 of the Act stands unsatisfied / unfulfilled. This being a jurisdictional error, the consequence which follows would result in invalidation of the assessment order. Therefore, we hold that the assessment order passed under section 143(3) r.w.s. 147 of the Act without valid service of notice under section 148 of the Act is void ab initio. 15. Having held so, we will examine the other aspect of the issue. 16. The reasons recorded by the assessing officer for reopening the assessment, a copy of which is at page 1 of the paper book reads as under:- "Date:- 10/03/2014 A.Y. 2010-11 ShrL Sanjecv C. Deo REASON FOR REOPENING The undersigned is in 'possession of information wherein it is informed that the assessee has purchased an immovable property for Rs. 37,00,000/- incurred credit card expenses of Rs. 7,75827/- & has received interest on bank deposits to the extent of Rs. 1 7,862/- during the previous year ending 31/03/2010 relevant to the A-Y 2010-11. Since the assessee has not filed any Return of Income for the relevant A.Y. 2010-11, I have reason to believe that income to the extent of Rs. 44,83,689....