K.S.JHAVERI,J. - (1.) By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the department and also partly allowed the cross objection of the assessee for statistical purposes.
(2.) This court while admitting the matter framed the following question of law:- "i) Whether the ld. ITAT was right in holding that the notice under section 148 dated 22.03.2010 having been sent through speed post and not having been received back, there was a presumption as to the service of the same ignoring fact that the address on which such notice was sent, was altogether a completely different location and hence no such presumption could have been considered?"
(3.) Counsel for the appellant Mr. Gargeiya has taken us to the order of the AO wherein it has been observed as under:- "3.4. On 2.12.2010, the A/R of the assessee has filed two letters. One is of challenging the service of notice. The another is challenging the validity of reasons recorded for initiating proceedings under section 148 of the Act. i) First letter challenging the service of notice under section 148 is dealt with as under:- For the sake of convenience and ready reference, the assessee"s letter is reproduced as under: On 22.3.2010 a notice under section 148 appears to have been sent through Speed Post vide No. ER017540747 at the following address: M/s. Shubshri Pankcer E-5, Kailas Marg, Bani Park. However, no receipt or any other evidence of service is available. The above notice was a valid notice to the assessee and as such bad in law since incorrect address is posted on envelope. The correct address as appears in the PAN of the assessee is F-58(B) Kalidas Marg Bani Park Jaipur. A letter dated 10.11.2010 appears to have been sent on 18.11.2010 at 14.57. by speed post...at the same address as above. However, the same came back on 24.11.2010 as per noting of postmen on the returned envelop for the reason that no such house exist in the Kailash Marg and endorsement of receipt by the receiving clerk of your ward. No evidence or other material found available showing personal service of the notice under section 148 on the assessee or any of its relative or any other person authorized on that behalf nor is there any material material showing the dispatch of such notice through registered A.D. It is well settled that through various decisions that a valid service of a notice under section 148 is condition precedent for a valid assumption of jurisdiction. Moreover, the onus lay upon the revenue to establish such service. Thus it is clearly established that there is no service at all of the notice under section 148 much less a valid service and therefore, your good self was wrongly assumed jurisdiction. The further proceedings are void ab initio." The above application of the assessee has duly been disposed of vide this office letter No.1667 dated 8.12.2010 and sent to the assessee through registered post A/D vide No. 4801 dated 10.12.2010. The letter is reproduced hereunder for ready reference: "The notice under section 148 was issued in the name of Ms. Shubashri Panikar, F-58, Kailash Marg, Bani Park, Jaipur on 22.3.2010 and sent for service through Speed Post on 22.3.2010. Inspection of the assessment records were made by your A/R on 30.11.2010 and this fact has also been verified by your A/R. The said notice was received back un-served. From the assessment record it has also been noticed that a notice under section 142(1) dated 4.10.2010, issued on the same address, fixing the hearing on 19.10.2010, which was sent for service through Speed Post, has duly been served on you and in response to which your A/R attended the hearing on 19.10.2010 and the case was adjourned to 29.10.2010. It shows that although in the notices the road name was mentioned as Kailash Marg, Bani Park, Jaipur, instead of Kalidas Marg, Bani Park, Jaipur the speed posts were served on the addressee as there is no road in the name of Kailash Marg at Bani Parek. In view of the above facts your application is acceptable, and hence, the same is therefore rejected." The notice under section 148 was issued in the name of Ms. Shubashri Paniker, F-58, Kailash Marg, Bani Park, Jaipur on 22.3.2010 and sent for service through Speed Post on 22.3.2010. The Speed Post was received back from the Postal Authorities. Again, the notice under section 142(1) dated 4.10.2010 fixing hearing on 19.10.2010 was sent on the same address. In response to which Shri N.K. Shrimal, CA/AR attended this office on 19.10.2010. It is pertinent to note that there is no Road in the name of "Kailash Marg" in Bani Park, Jaipur and the Plot No. F=58 is situated at "Kalidas Marg", Bani Park, Jaipur. From these facts, it is evident that the notice under section 148 sent through Speed Post has duly been served on the assessee. ii) Second letter " challenging the reasons recorded for issue of notice under section 148 is dealt with as under: In the impugned reasons, your good self has reached to a reason to belief that an entry of Rs. 5,01,000 dated 18.12.2002 was received by the assessee, was a bogus entry and therefore, you had a reason to believe that there was an escapment of income of Rs. 5,01,000/- The reasons is erroneous and invalid for the following reasons: 2.1. There are no details or material extracted in the impugned reasons showing further the nature or type of the information 2.2. How your good self had a reason to belief of escapement based on such information is known" 2.3" 2.4. There appears only suspicious on your part" In any case, we shall appear nor shall cooperate in any of the proceedings in hands.";