Case Law Details
CASE LAWS DETAILS
DECIDED BY: ITAT, PATNA BENCH, PATNA,
IN THE CASE OF: ACIT Vs Ashiana Automobiles Pvt. Ltd., APPEAL NO: ITA Nos. 176 & 177 (Pat.)/2008, DECIDED ON: February 5, 2009
RELEVANT PARAGRAPH
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 along with acknowledgement due. Therefore, if notice is not sent through registered post but service through Courier is preferred, then a proper acknowledgement 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 authorised by the department to serve the notice and acknowledgement in token of service should be returned along with 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 acknowledgement, certificate from the Courier and proper authorisation to the Courier should be shown to the assessee so that no link in between is apparently missed. In addition to the acknowledgement, 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 recognised 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 along with 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 Honourable Delhi High Court in CIT Vs Hotline (2008) 296 ITR 333 (Del.) The head notes from the decision are as under:
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