AUGUSTINE GEORGE MASIH, J. - (1.) THE abovementioned appeal has been preferred by the Revenue under s. 260A of the IT Act, 1961, against the order dt.
(2.) THE following substantial questions of law have been raised in the present appeal : "(A) Whether, on the facts and in the circumstances of the case, the Tribunal has erred in law in holding that there was no valid service of notice under s. 143(2) before the due date, though not only notice under s. 143(2) was sent by (B) Whether, on the facts and in the circumstances of the case, the Tribunal has erred in law in holding that non - mentioning of time of affixture by the Inspector on the notice issued under s. 143(2) of the IT Act served through affixture made assessment invalid ? (C) Whether there is any failure on the part of the AO in trying to serve a notice, firstly, through the notice server, secondly, by the registered post and, thirdly, by affixture when all these methods are in accordance with law laid down in sub -s. (1) of s. 282 of the IT Act, 1961 ? (D) Without prejudice to the above whether the Tribunal has erred in not treating the defect, if any, in service of notice under s. 143(2) as a irregularity curable under s. 292B - assessee, the office is stated to have been closed. He approached the AO, who directed the notice to be served by course as the assessee had deliberately avoided the service of notice, he directed the notice server to serve the notice by affixture at the premises of the assessee. Accordingly, the notice is stated to have been served by affixture. Apart (2) of s. 143, requires the notice to be served before the expiry of 12 months from the end of the month in which the return was furnished, since the service of the notice is not within the limitation provided, there is no valid service on him. It is further pleaded that any action taken pursuant to such invalid notice was liable to be set aside and the assessment framed to be annulled. details of the pleadings, the records and the statements on record given the following findings : "7. We have considered the relevant facts, arguments advanced and the decisions cited. As regards service of notice dt. limitation prescribed in the proviso to s. 143(2). Thus, it can be held that there was no valid service of notice dt. 30th 2002. It is also noted that no entry of notice server or even Inspector is recorded in the visitor's register kept at the gate of premises of the assessee. The AO has ordered the service by affixture for the reason that the assessee is deliberately avoiding service of notice. We are unable to accept such contention. When the notice was tried to be served only after the office hours on the last day of the limitation period and in the absence of any earlier attempt having been made by the Revenue authorities to serve the notice, it cannot be said that the assessee is deliberately avoiding service of notice particularly when notice was never effected to have been served. If the Revenue authorities try to serve the notice at the last hour after the close of office hours, the fault lies with the AO and not with the assessee. There is not a single instance demonstrated that the assessee has avoided service of notice. This leaves us to believe that the service by affixture is a make belief story and not real sequence of events. In the said affixture some glaring points which can be observed are as under : (a) No time is mentioned by the notice server in his report when he approached the premises of the assessee to serve the notice. Similarly, no time is mentioned by the AO when the notice server went back to him with the report that the notice could not be served. (b) No time is mentioned by the Inspector in his report where he states that the notice was served by affixture. (c) There is no mention as to who identified the premises where the notice was affixed and the name and address of the person witnessing such affixture. (d) There is no entry either of the notice server or Inspector in the visitor's register maintained by the assessee. (e) There is no material on the basis of which it can be said that the AO has reason to believe that the assessee was Sec. 282 of the IT Act provides the manner in which a valid service can be effected. This section states that a notice under the Act is to be served either by post or as if it was summons under the Code of Civil Procedure, 1908.
(3.) Order V, rr. 12 to 20 of the Code of Civil Procedure, 1908, provides for the service of summons on the defendant. Rule 12 provides that the service shall be made on the defendant in person whenever it is practicable unless he has an empowered agent to accept the service in which case the service on such agent shall be sufficient.;