Case Law Details
RELEVANT PARAGRAPHS
21. The nothings of the notice-server has been reproduced in the above part of this order which also, as mentioned above, found place in the order of CIT(A) as well as in the order passed by the Id. JM. The notice-server in his report has submitted that the service of affixture has been made as per the directions of the AO dated 11th November, 2003 in the presence of Shri S.C. Agarwal, ITI. The date of notice issued by the A.O. is dated 10th November, 2003. Thus, on the very next day of the issue of notice, the AO has directed the notice-server to serve the notice by affixture. The impugned assessment is of A.Y. 2001-02. It is not the case of Revenue that on 10th November, 2003, if notice is not served within a short span, the initiation of reassessment proceedings will be barred by time, as it has been the contention of the Id. A.R. that there was ample time available with the department to initiate reassessment proceedings. Thus, it is clear that the A.O. had no exigency to issue and serve the notice u/s. 148 on 11.10.2003 itself so as to bring the same within the period of limitation. When a notice is issued on 10th November, 2003, and it was ordered to be served by affixture on 11th November, 2003, the Revenue will be under legal obligation to show that between the period of 10th November, 2003 and 11th November, 2003 what efforts were made by the Revenue to effect the service of notice in a normal manner. The record is silent about it. There is no material on record to show or to suggest that any effort was made by the A.O. to serve the notice in normal course before issuing the directions to serve the same by way of alternative mode, i.e., by way of affixture. The jurisdictional High Court in the case of Jagannath Prasad & Ors. Vs. CIT (supra) has held that before action under Order-V Rule 20 can be taken, two conditions must exist, one; that the Court has reason to believe that the defendant is keeping out of the way for the purpose of avoiding service and, two; that for any other reason the summons cannot be served in the ordinary way. Nevertheless, there must be material on record on the basis of which a reasonable person might come to the conclusion that either of these conditions are satisfied. It was observed that the satisfaction of the Court contemplated by Order-V Rule 20 is an objective satisfaction and it is not a subjective one. Therefore, relevant material must exist on record to justify that conclusion. In that case the report was given by process-server to the effect that he made enquiries at number of places but he could not find out the assessee. After such report, the A.O. passed an order for affixture. It was observed by the Hon’ble High Court that the mere fact that the processor-server could not find out the assessee would not lead to the conclusion that the assessee was keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served. It was observed that the report of the process-server itself does not indicate that more than one attempt was made by the process-server and on the contrary it was indicating that one single attempt of enquiry was made at number of places but notice-server could not find out the assessee. That factor, according to the Hon’ble High Court, could not constitute sufficient material for the satisfaction of the A.O. that the conditions required for application of Order-V Rule 20 were existing. Therefore, it was held that the order of the A.O. directing the service by affixture was based on no relevant material on record and, therefore, was to be struck down. This case of Hon’ble Allahabad High Court was later on considered by the same High Court in the decision in the case of M/s Ganeshi Lai & Sons (supra) and it was found distinguishable on the ground that there was material on record to hold that the assessee was evading service or was keeping itself out of the way for avoiding service as when the notice-processor went to the place of the business of that assessee no one was prepared to accept the notice. In this manner the said case was distinguished. Therefore, it cannot be said that the ratio of the decision in the case of M/s Ganeshi Lai & Sons (supra) is in any way different from the decision in the case of Jagannath Prasad & Ors. Vs. CIT (supra). Here it will be important to mention that in the cases of M/s Ganeshi Lai & Sons (supra), it has been observed by the Hon’ble High Court that in the said case the process-server, despite due diligence, was not able to find the petitioners or any other person who was willing to accept the notice on behalf of the assessee and in that circumstances the service by affixture was made. Therefore, in that case there was material on record to show that attempts were made by the department to effect service in normal mode and those attempts were not successful, resultantly, service was made though affixture. However, in the impugned case there is no material on record to suggest or to hold that any sincere attempt was made by the Revenue to make the service through normal mode. For the reasons discussed above, the decision in the case of Jagannath Prasad & Ors. Vs. CIT (supra) will have square application to the present case and relying on the decision in the case of M/s Ganeshi Lai & Sons (supra), it cannot be held that service of notice by affixture in the present case was a valid service.
