TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 302
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....come for the year under consideration. According to the AO, as the assessee did not appear during the assessment proceedings, he issued notice u/s 274 r.w.s. 271 of the Act along with show cause letter sent through speed-post on 12.02.2016 fixing the case for 18.02.2016. The AO noted in the assessment order that the assessee neither attended in response to the said notice nor filed any reply and therefore he completed the assessment u/s 144 r.w.s. 147 of the Act on 21.03.2016 by treating the cash deposit as undisclosed income of the assessee and an addition of Rs. 1,99,13,900/- was made by the AO. During the appellate proceedings the assessee contested that no notice u/s 148 of the Act was served on him and no reasons were given for reopening of assessment proceedings and therefore the proceedings were not as per law and without jurisdiction. On merits also the addition was challenged in view of the cash flow statement and source of deposit explained by the assessee. Additional evidences given by the assessee was under Rule 46A of the I.T. Rules were sent to the AO for his comments. Vide remand report's dated 03.01.2018 and 20.09.2018 the AO stated that proceedings u/s 148 of t....
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....erefore no alternate address was available. The Ld. CIT A then noted that the AO issued affixture notice and noted in the appeal order certain irregularities with the affixture notice. On this basis the Ld. Ld. CIT A has treated reassessment u/s 144/147 of the Income Tax Act, 1961 in this case invalid and void as there was no proof of service of notice u/s 148 of the Act by affixture. (Para 5.2.9 of the Appeal Order, page 12) and Department is in appeal against this. Having held so, the Ld. CIT A didn't decide the assessee's appeal on merits (Para 5.2.11 of the Appeal Order, page 14). The Ld. CIT A relied upon various judgements in support to hold that service of notice u/s 148 was mandatory. It is contended that issue of notice on 31.03.2015 and sending it by registered post on the address given by the assessee on his letter which was received in the AO's Office on 10.10.2012 was proper service and the Ld. AO, apparently in good faith, attempted service of the notice through affixture on 07.04.2015 after the same came back undelivered on 06.04.2015. And therefore any alleged irregularity in the service of notice through affixture is irrelevant. As sending of the ....
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....jeet Seeds Limited vs Gopal Krishnaiah [2014] 12 Hon'ble Supreme Court 685(SC). The Ld. DR further submitted that the Hon'ble Supreme Court in the case of Priyanka Kumari vs Shailendra Kumar in Transfer Petition (Civil) Nos.2090/2019 IA No.126261/2019 vide order dated 13.10.2023 has held that 'refusal' is synonymous with 'unclaimed'. The Ld. DR further submitted that the Hon'ble Apex Court further held that when notice is returned as unclaimed it shall be deemed to be served and it is proper service. 5. The Ld. AR supported the order of the Ld. CIT(A) and filed a written submission as under:- * Ld. AO had issued notice under section 148 on 31.03.2015, which was received back unserved on 06.04.2015. * Thereafter, Ld. AO made no efforts to serve the notice again, except for the alleged affixture. Ld. AO on page 2 para 3 of Assessment Order mentioned that 'the above notice was served through affixture only'. * Respondent challenged the service of notice through Affixture before the Ld. CIT(A). The Respondent in his submission dated 15.02.2018, filed as page 19 of Paper Book, had cited several judgments of Hon'ble Supreme Court and jurisdictional Hon'ble Hi....
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....en effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh (1992) 1 SCC 647; State of M.P. Vs. Hiralal & Ors. (1996) 7 SCC 523 and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. (2004) 8 SCC 74] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved." 6.1. In this case also as discussed above, the postal remark in respect of the notice u/s 148 dated 31.03.2015 sent by registered post (the fact of sending the notice u/s 148 of the Act dated 31.03.2015 by registered post is mentioned at Sr. No.-5 of the 'statement of facts filed by the ITO, Ward- 2, Rohtak') was that 'on enquiry it was gathered that the assessee is....
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....s been service'. However, in the present case from the remarks of the Postal Department to the notice u/s 148 of the Act dated 31.03.2015 shows that the Postal Department had reached the home of the assessee but the notice was not received on the ground that the assessee was not at home and it was not known when the assessee will be back at home. Similarly, the notice u/s 142(1) of the Act fixing the case for hearing on 18.11.2015 also came back undelivered with the postal remarks 'bar bar jane per nahi milta wapis jaye' which shows that despite repeated attempts by the Postal Department, the assessee was not found and the Postal Department was asked to go back. The above conduct of the assessee and the remarks of the Postal Department raises a reasonable presumption that the assessee deliberately avoided to receive the notice u/s 148 of the Act dated 31.03.2015 in this case. The law will protect the rights of a citizen if he was ready to perform his corresponding duty. In this case, the assessee was not ready to receive the said notice and therefore the notice u/s 148 of the Act dated 31.03.2015 could not be served upon him. Therefore, as held in earlier para i.e. 6.1 that due ser....