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From: CABHUPENDRASHAH <ca.bhupendrashah@yahoo.co.in>
Subject: [GlobalIndianCAs] When notice is served through Courier extra caution is required; caution has to
To: GlobalIndianCAs@yahoogroups.com
Date: Saturday, 6 March, 2010, 7:25 PM

 

[2010] 3 taxmann.com 12 (Pat. - ITAT)

When notice is served through Courier extra caution is required; caution has to be necessarily in the form of proper identification of the person upon whom the notice is service

If notice is not sent through registered post but service through Courier is preferred, then a proper acknowledgment of service with identification that it is being served on the person named in the notice should be on record; when service of notice is challenged by the assessee, then evidence in the form of acknowledgment, certificate from the Courier and proper authorization to the Courier should be shown to the assessee so that no link in between is apparently missed.

ITAT, PATNA BENCH, PATNA

ACIT

v.

Ashiana Automobiles Pvt. Ltd.

ITA Nos. 176 & 177 (Pat.)/2008

February 5, 2009

RELEVANT EXTRACTS:

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6. We have considered the rival submissions and perused the material on record. In our considered view, the claim of the revenue that notices were sent through Courier and the Courier had served it within a week on the assessee is not sustainable because the revenue has to produce the copy of the acknowledgement in token of service of the notice. In absence of evidence of the service of notice, no presumption can be raised even on the basis of alleged letter by the Courier that notices were actually served. Section 282 of I. T. Act has laid down the mode of service of notices. A notice has to be served on the person named therein either by post or as if it were a summon issued by a court under Code of Civil Procedure, 1908 and Order V of Rule 19 thereof. The notice sent by registered post should be sent alongwith acknowledgment due. Therefore, if notice is not sent through registered post but service through Courier is preferred, then a proper acknowledgment of service with identification that it is being served on the person named in the notice should be on record, the Courier in neither a Notice Server of the Department nor a person holding any other post in the Department. He has to be properly authorized by the department to serve the notice and acknowledgement in token of service should be returned alongwith a certificate that notice has been served on the person named in the notice. When service of notice is challenged by the assessee, then evidence in the form of acknowledgment, certificate from the Courier and proper authorization to the Courier should be shown to the assessee so that no link in between is apparently missed. In addition to the acknowledgment, there must be something on record to show that the person on whom notice was served was, in fact, the person named in the notice, when service through Courier is preferred. In fact, Courier is not any recognized mode of service under section 282. Therefore, extra caution is required to be taken when this mode of service is preferred. This caution has to be necessarily in the form of proper identification of the person upon whom the notice is service. A copy of PAN Card or other identification card should be necessarily enclosed alongwith the certificate of service by Courier. If there is no proof of service or proper service, then it cannot be held that proceedings under section 148(1) are validly initiated. The law in relation to service of notice had been laid down by the Hon'ble Delhi High Court in CIT v. Hotline (2008) 296 ITR 333 (Del.) The head notes from the decision are as under:

" Section 282 of the Income-tax Act, 1961, lays down the mode of service of notices. According to it, any notice under the Income-tax Act has to be served on the person named therein either by the post or as if it were a summons issued by the Court under the Code of Civil Procedure, 1908. Order V of Rule 19A of the Code of the Civil Procedure, provides; for simultaneous service by post in addition to personal service. Under Order V, Rule 17 of the Code, the affixation can be done only when the assessee or his agent refuses to sing the acknowledgment or cannot be found. The notice sent by the registered post should be sent along with the acknowledgment due.

Held, that no effort was made by the Income-tax Department to serve the notice upon the assessee, since the company of the assessee was closed due to festival holidays, and admittedly no effort was made by the serving officer to locate the assessee. The notice sent by registered post ought to have been sent along with the acknowledgement due but admittedly this was not done. Since there had been no proper service of notice, the reassessment proceeding resulting in the order dated January 30, 2003, was not valid."

7. Since in the present case, there is no evidence of service of notice on the assessee, the Assessing Officer did not get jurisdiction to continue with the proceedings under section 148(1)/147 and therefore, the assessment framed in pursuance thereof is also invalid. The Id. Commissioner (Appeals) was justified in canceling the assessment.

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