Case Law Details
In the present case too, there is nothing to suggest that the assessee was intentionally hiding from the authorities for the purpose of avoiding service or there was any other good reason to conclude that the notice could not be served in an ordinary way. The inaction or delay on the part of the assessing officer in issuing notice under section 143(2) of the Act cannot be a ground to straightway effect service by affixture. Thus, in the instant case, the ordinary process not having been exhausted or carried out by the assessing officer, he was not justified in directly resorting to service of notice by an affixture merely because he had issued the notice at the last minute i.e. on 29-11-2011 so as to avoid the limitation expiring on 30-11-2001. Under these circumstances, we find ample force in the plea of the assessee on the issue of wrong assumption of jurisdiction by the assessing officer by issuing the instant notice under section 143(2) of the Act.
It has to be held that the notice under section 143(2) of the Act has not been served within the time and the mode prescribed under the Act and as a consequence, the impugned assessment framed under section 143(3) of the Act is void ab initio. Accordingly, the assessment order dated 10-11-2003 is liable to be quashed. We hold so.
Full Text of the ITAT Order is as follows:-
The captioned appeal filed by the assessee pertaining to assessment year 2000-01 is directed against an order passed by Commissioner (Appeals)-V, Mumbai dated 4-10-2004, which in turn, arises out of an order passed by the assessing officer under section 143(3) of the IT Act, 1961 (in short ‘the Act’) dated 10-11-2003.
2. In this appeal, although assessee has raised multiple grounds of appeal, but at the time of hearing, the solitary grievance raised was in terms of ground of appeal No. 2, contained in the memo of appeal, which is to the effect that the assessment order was void ab initio as no notice under section 143(2) of the Act was issued and served upon the assessee within the stipulated period prescribed in the proviso thereof. Both the counsel have been heard with respect to the aforesaid ground and the relevant material perused.
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