COMMISSIONER OF INCOME TAX 1 Vs. NAVEEN CHANDER

JUDGEMENT

(1.) The Revenue has approached this Court by invoking the provisions of Section 260A of the Income Tax Act, 1961 (for brevity 'the Act') challenging order dated 24.2.2009 passed by the Income Tax Appellate Tribunal, Chandigarh (for brevity 'the Tribunal') in IT(SS)A No. 28/CHANDI/ 2004 for the block period 1.4.1989 to 24.6.1999. The Revenue has claimed that following substantive questions of law would arise for determination of this Court:

(2.) The basic controversy raised is as to whether the assessee respondent was served under Section 158BD of the Act at his last known address on 23.7.2001 by way of affixture. The Tribunal considered the aforesaid issue as a 'fundamental' controversy because it was necessary to establish that such a notice was served to confer jurisdiction. The Tribunal placed reliance on the provisions of Order V Rule 17 of the Code of Civil Procedure, 1908 (for brevity 'the Code') and has concluded on principle that where notice of service is claimed to have been served by affixation under Order V Rules 17, 18 and 19 of the Code then it becomes necessary to examine whether such service has been made in accordance with the procedure, as it is mandatory. The first requirement is to ensure that the place is properly identified and secondly the report is authenticated by independent persons to avoid any attempt by the Process Server to prepare the report sitting in his office. The Tribunal has referred to the report dated 23.7.2001 issued by the Process Server. According to the report of the Inspector/ Notice Server dated 23.7.2001 the notice was affixed on the main door of Shop No. 33, Anajmandi, Mullanpur. There was no evidence of any local person having been associated with in identifying the place of business of the assessee-respondent and the report is not witnessed by any person at all. It has been found to be flagrant violation of Rule 17 of Order V of the Code which lays down a procedure to serve notice by affixture. The conclusion is recorded in paras 13 and 14 of the order which reads thus:

(3.) It is thus obvious that finding with regard to service of notice to confer jurisdiction is absent.