TaxTMI 
TaxTMI 
2023 (8) TMI 1258
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....ated 31 January, 2019 passed by the Commissioner of Income Tax (Appeals) -19 ["Ld. CIT(A)"] is erroneous and bad in law. 2. That in law and under the facts and circumstances of the case, the impugned order passed by the Income Tax Officer, Ward - 57(5), New Delhi ("Ld. AO") under section 144/147 of the Act is without jurisdiction and thus void ab initio. 3. That the Ld. CIT(A) has erred in confirming the penalty u/s 271(1)(b) of the Act of Rs. 10,000/- levied on the assessee without considering and appreciating the facts and circumstances of the case and without appreciating that the Appellant had not received the notice of hearing. 4. That the Ld. CIT (A) has grossly erred in confirming the levy of penalty under ....
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....alty, the assessee preferred an appeal before the CIT(A) and the CIT(A) vide order dated 31/01/2019, dismissed the Appeal filed by the Assessee. As against the order of the CIT(A) dated 31/01/2019, the Assessee preferred the present appeal on the grounds mentioned above. The Ld. Counsel for the assessee submitted that, the assessee has not received the notice of hearing during the assessment proceedings and the A.O. has not followed the proper procedure to serve the notices. Therefore, the penalty proceedings initiated thereupon is against natural justice and erroneous. 5. Per contra, the Ld. Departmental Representative relied on the orders of the Lower Authorities, justified the action of the A.O. and the Ld. CIT(A) and contended that t....
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.... by the A.O. and held that the assessee has not complied with the notices. The observation of the A.O. are reproduced as under:- "Since, neither the PAN nor bank account no. of the assessee with DELHI NAGRIK SEHAKARI BANK LTD is available on record, necessary confirmation could not be obtained from bank. The notice u/s 142(1)) issued to the assessee on 16/08/2013 for hearing on 29/08/2013 but notice was not served upon the assessee the same has return back unserved with remarks "NO SUCH PERSON IS RESIDING ON THIS ADDRESS". For the sake of justice last & final opportunity was granted to the assessee by way of Issuance of notice u/s 142(1) was issued on 14/01/2014 for compliance of 24/01/2014 by way of affixture through Inspector /No....
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....e Civil Procedure Code reads: "Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, 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 conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy....
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.... reasonable diligence' appearing in Rule 17 of CPC has been considered in numerous cases and it has been held that unless a real and substantial effort has been made to find the party/defendant after proper enquiries, the Serving Officer cannot be deemed to have exercised 'due and reasonable diligence'. Before taking advantage of Rule 17 of the CPC, the Serving Officer shall make diligent search for the person to be served with the notice, therefore, he must take pain to find him and also to make mention of his efforts in the report. Another requirement of Rule 17 of CPC is that the Serving Officer should state that he has affixed the copy of Notice as per this Rule. The circumstances under which he did so and the name and addre....