Itta/134/2013 Of The Commissioner Of Income Tax-Iv, Hyderabad v. C.mohan Rao

HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDHON’BLE Ms. JUSTICE G.ROHINI I.T.T.A.No.134 of 2013 Date: 28.06.2013 Between: Commissioner of Income Tax-IV,Hyderabad. .....Appellant AND Ch.Mohan Rao ...Respondent HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDHON’BLE Ms. JUSTICE G.ROHINI I.T.T.A.No.134 of 2013 JUDGMENT: (per Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) Certified copy of the order though has not been annexed to thisappeal papers, however, we have seen the true copy of the judgmentand order and we propose to dispose of the matter at this stage. We donot require the certified copy any more. This appeal is sought to be admitted on the following suggestedquestions of law: i.Whether, on the facts and in the circumstancesof the case, the Tribunal is correct in law inallowing the additional ground of appeal raised inthe cross objections?of the case, the Tribunal is correct in law inallowing the additional ground of appeal raised inthe cross objections? ii.Whether on the facts and in the circumstancesof the case, the Tribunal is correct in law inannulling the proceedings of the Assessing Officerpassed under Section 144 of the Act on theground that service of notice under Section 148 byaffixture is not a proper service of notice andprinciples of natural justice have been violated?of the case, the Tribunal is correct in law inannulling the proceedings of the Assessing Officerpassed under Section 144 of the Act on theground that service of notice under Section 148 byaffixture is not a proper service of notice andprinciples of natural justice have been violated? The appeal is preferred against the judgment and order of thelearned Tribunal dated 22.08.2008 in relation to the assessment year1996-97. We have heard the learned Counsel for the appellant and gonethrough the impugned judgment and order. It appears from the impugned order, the following short fact: The Revenue wanted to reopen the assessment and sought forservice of notice under Section 148 of the Income Tax Act. The notice was purported to have been served on the assessee by affixture. Thelearned Tribunal held that service of notice under Section 148 of theAct by way of affixture is not a proper service of notice, and withoutthere being any service by ordinary mode, the substituted serviceshould not be allowed. Learned Counsel for the appellant submits that the service ofnotice is a valid one by virtue of Section 292BB of the Income TaxAct. The learned Tribunal has considered the aforesaid provision ofSection 292BB of the Act and held, in our view, correctly that the saidprovision is applicable in relation to the original assessment. Whenthe assessee appeared, on receipt of notice, it is not applicable in thecase of service of initial notice. We are in agreement with the learnedTribunal that the mode of service by way of affixture in this case, at thefirst instance, was not justified. As such the proceedings drawn upunder Section 148 of the Act is without serving any notice or anopportunity of being heard to the assessee. Therefore, we are notinclined to interfere with the judgment and order of the learnedTribunal. Accordingly, the appeal is dismissed. Miscellaneous petitions,if any, pending shall also stand closed. No order as to costs. ___________________ K.J. SENGUPTA, CJ _______________ G.ROHINI, J 28.6.2013 Gsn.