In this appeal, assessee has objected to order of CIT(A) dated 14- 3-2002 by way of following grounds:- '1. Because Learned Commissioner of Income-tax (Appeals)-I has erred on facts and in law in confirming assessment made under section 144 of Act. 2. (a) Because Learned Commissioner of Income-tax (Appeals)-I has erred in holding that service of notice under section 148 on Chartered Accountant, who had not filed any authority for assessment year under consideration, in Individual case of assessee as valid service. (b) Because authorized representative has no contractual authority to receive notices prior to commencement of assessment proceedings, as he comes into picture only when assessee is entitled or required to attend before any Income-tax Authority as per provisions of section 288 of Act. 3. (a) Because Commissioner of Income-tax (Appeals)-I has also erred in holding that, under section 147, it is sufficient to confer jurisdiction notice if it is issued within period of limitation. (b) Because Commissioner of Income-tax (Appeals)-I has erred in considering section 147 in isolation with section 148(1) which provides that before making assessment or re-assessment that shall serve on assessee notice. (c) Because notice under section 148 confers jurisdiction and has to validly served on assessee or on his authorized agent. 4. (a) Because Learned Commissioner of Income-tax Appeals-I has also erred in interpreting provision of section 282 only on basis of head note which uses word 'Generally'. (b) Because sub-section (1) of section 282 statutorily provide manner in which notices may be served and in assessee's case notice under section 148 had not been served in manner provided. 5. (a) Because Learned Commissioner of Income-tax Appeals-I has also erred in holding ex parte assessment valid, as notice under section 142(1) had been served. (b) Because service of notice under section 142(1) does not confer jurisdiction or cure defect in foundational notice under section 148. (c) Because unless assessment proceedings have been validly initiated, procedural notice under section 142(1) has no statutory force. 6. (a) Because Learned Commissioner of Income-tax (Appeals)-I has also erred in holding that interest under sections 139(8) and 216/217 has been correctly charged. (b) Because Learned Commissioner of Income-tax (Appeals)-I has also erred in upholding Assessing Officer's view that no appeal is against charging of interest. 7. Because order dated 14-3-2002 is bad in eyes of law.' 2. We have heard parties. 3. At time of hearing, counsel for assessee preferred not to press ground No. 6 and therefore, same is rejected as such. 4.1 brief facts, relevant for decision of issue involved in this appeal, which admittedly relates to validity of service of notice under section 148 for assessment year 1988-89 on one Shri M.K. Tyagi, Chartered Accountant, are that assessee was partner of partnership firm styled as M/s. Doneria Cold Storage and Ice Factory, F-19, Kamla Nagar, Agra. In consequence upon assessment of partnership firm M/s. Doneria Cold Storage and Ice Factory, Fatehabad for assessment year 1988-89, assessee's share, which was 25% of profit and loss of firm, came to be at Rs. 76,788. Since Assessing Officer having jurisdiction over assessee's case, did not know as to whether assessee had furnished its return of income for assessment year 1988-89 or not, he wrote letter to assessee on 3-3-1998 (copy placed at page 1 of Department's paper book), whereby assessee was called upon to let Assessing Officer know as to whether return for assessment year 1988-89 had been furnished or not and if furnished. assessee was required to appear on 7-9-1998 along with copy of original return and of receipt for having furnished return for assessment year 1988-89. 4.2 This letter was served on assessee personally on 3-9-1998 itself, but, admittedly, there was no compliance to this letter by assessee, i.e., neither assessee filed written reply nor assessee appeared himself nor assessee made someone else, i.e., as his representative (Advocate or Chartered Accountant), to appear or to reply to this letter. In nutshell, this letter remained completely uncomplied with and revenue has admitted this fact. 4.3 Thereupon Assessing Officer issued notice under section 148 of Act on 15-9-1998 for assessment year 1988-89, which, admittedly, was served on one Shri M.K. Tyagi, Chartered Accountant, who put his signatures in capacity of 'AR' (Authorized Representative). service effect was on Shri M.K. Tyagi on 9-11-1998. As per this notice, assessee was required to file its return of income for assessment year 1988-89 within period of 30 days from date of service. But, admittedly, this notice also remained uncomplied with. Thereafter, Assessing Officer issued notice under section 142(1) of Act on 8-3-2001 and was sent to assessee by registered post. Another notice under section 142(1) of Act dated 12-3-2001 was also issued at assessee's local address, whereby date of hearing was fixed for 16-3-2001, but both these notices under section 142(1) also remained uncomplied with. However, application dated 22-3-2001, alongwith Vakalatnama in favour of Shri Anupam Sinha, was received in Assessing Officer's office asking for Xerox copies of documents available on record, which were made available to assessee's Authorized Representative Shri Anurag Sinha. Finally, date of assessee's Authorized Representative Shri Anurag Sinha. Finally, date of hearing was fixed for 26-3-2001 and since, nobody attended on this date and no adjournment was sought, Assessing Officer completed assessment under section 144/148 of Act as per order dated 26-3-2001 on assessed share. assessee appealed against ex parte assessment order before CIT(A) by way of various grounds. 4.3(a) Before CIT(A), assessee, at outset, objected to validity of ex parte assessment on ground that service of notice issued under section 148 of Act for assessment year 1988-89 in assessee's own case on 15-9-1998 having been not made upon assessee, was invalid in eyes of law, i.e., service of notice under section 148 was not valid service in eyes of law and consequently, all subsequent proceedings including ex parte assessment were illegal and bad in law. 4.3(b) This submission of counsel for assessee before CIT(A) was on ground that Shri M.K. Tyagi, Chartered Accountant, on whom notice under section 148 had, admittedly, been served, was not assesses's authorized Representative or authorized agent so as to appear or act for and on behalf of assessee in income-tax proceedings for assessment year 1988-89. 4.3(c) ld. CIT(A) referred assessee's written arguments to Officer, called for assessee's comments. It was only thereafter that ld. CIT(A) held service of notice under section 148 of Act upon Shri M.K. Tyagi, as valid service in eyes of law and consequently upheld assessment order passed under section 144/147 of Act. 4.4 CIT(A) referred assessee's aforesaid written arguments to Assessing Officer for his comments and Assessing Officer while sending remand report dated 20-2-2002 intimated CIT(A) that he (Assessing Officer) had seen Power of Attorney executed by assessee in favour of Mr. M.K. Tyagi, Chartered Accountant, but it seems that after receipt of this remand report and assessee's relevant income-tax records, from Assessing Officer, CIT(A) had perused same in presence of assessee's counsel Mr. Sinha on 6-3-2002 and had noticed that there was no such Power of Attorney on record. 4.4(a) This fact was reiterated by assessee before CIT(A) as per Mr. Sinha's letter dated 7-3-2002 duly referred to by CIT(A) in para 3.8 of appellate order. However, ld. CIT(A) again considered issue in presence of Assessing Officer and accepted Assessing Officer's stand that he had seen power of attorney executed by assessee in favour of Mr. M.K. Tyagi, Chartered Accountant. relevant observations of ld. CIT(A) as contained in para 3.13 are again reproduced below:- 'The Assessing Officer pointed out that there was power of attorney in favour of Shri M.K. Tyagi, CA signed by assessee, particularly for year under consideration. Even though it was not challenged by learned representative of appellant in written rejoinder filed, same was vehemently denied to be present on case records during course of hearing in presence of present Assessing Officer. Assessing Officer before me, in presence of counsel of appellant, stated that he had seen letter of authority with his own eyes before sending his report dated 20-2- 2002. I am inclined to agree with Assessing Officer. He had no reason to mention any fact, which was not correct. Assessing Officer had taken over charge of this case quite recently. Assessing Officer is expected to send submissions after going through case records. Thus, even though authority letter was not found available on record. I believe version of Assessing Officer that he had seen letter of authority. same is however, immaterial so far as decision in this case is concerned.' 4.4(b) assessee's submissions made before CIT(A), comments of Assessing Officer, counter comments of assessee on comments of Assessing Officer and findings of CIT(A) as contained in para Nos. 3.1 to 3.18 of order of CIT(A) are in following terms:- '3.1 learned representative of appellant has given facts of case as under: '(1) That assessee, during year under consideration was partner i n firm M/s. Doneria Cold Storage & Ice Factory, Fatehabad, Agra deriving 25% share of profits and losses of firm. (2) That case of firm in which assessee was partner was completed under section 143(3) of Act and learned Assessing Officer separately passed order under section 158 of Act determining assessee share to tune of Rs. 36,390. (3) That grounds of appeal No. 2 is in relation to action of learned Assessing Officer in making assessment under section 144/148 without serving notice under section 148 of Act. (4) That after passage of nearly 9 Years from date of order passed under section 143(3)/158 of Act learned Assessing Officer is said to have issued notice dated 15-9-1998 under section 148 of Act. (5) That said notice issued against assessee was in fact not at all served on assessee, and order of assessment reveals that notice/letter prior and post to issuance of this notice under section 148, addressed to assessee was served on assessee at one instance personally and at another by registered post.' 3.2 learned representative of appellant argued that notice under section 148 was foundational notice and its service in person was mandatory requirement. This requirement could be relaxed only when person to whom notice was addressed was not found at given address or refused to accept notice or evaded service of notice. notice under section 148 for purpose of initiating proceedings for reassessment was not mere procedural requirement. It was condition precedent to initiation of proceeding for assessment under section 147. appellant has relied on following decisions: (i ) CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147 (SC) (ii ) CIT v. Ishwar Singh & Sons [1981] 131 ITR 256 (Cal.) (iii ) Madan Lal Agarwal v. CIT [1983] 144 ITR 745 (All.) (iv ) CIT v. Har Prasad [1989] 178 ITR 591 (Punjab) (v ) P.N. Sasikumar v. CIT [1988] 170 ITR 80 (Ker.) (vi ) Kunj Bihari v. ITO [1983] 139 ITR 73, 76 (Punjab) (vii ) Addl. CIT v. Prem Kumar Rastogi [1986] 124 ITR 381 (All.) (viii ) CIT v. Girdhari Lal [1984] 147 ITR 379 (Raj.) 3.3 Assessing Officer in his comments has submitted as under: '...It is not correct that determined share of assessee in firm for assessment year 1988-89 was Rs. 36,390. In this respect it is submitted that assessee has not disclosed before your honour factual position correctly. Originally assessment of firm was completed under section 143(3) in which share of assessee was determined at Rs. 36,390 but later on assessment of firm was revised under section 251 and thereafter finally under section 143(3)/154/251 on 31-3-1997 at Rs. 3,90,970. After deducting firm's tax share of assessee was determined at Rs. 76,787 and this order was duly served on assessee firm.' 3.4 Regarding proper service of notice Assessing Officer has mentioned as under: '...Prior to initiating proceedings under section 147 show-cause notice was served on assessee on 3-9-1998 but no compliance was made by assessee. Thereafter notice under section 148 was issued and it was received by his authorized representative Shri M.K. Tyagi, CA, Shri M.K. Tyagi, CA was authorized representative in all case of assessee's group and proceedings before Income-tax authorities during relevant period were attended by him in all group cases of assessee. power of attorney in favour of Shri M.K. Tyagi was also signed by assessee particularly for year under consideration. Thus contention of assessee that notice under section 148 was not served is not correct.' 3.5 Assessing Officer has brought my attention to case of Chandra Bhan Bansal v. Dy. CIT wherein Hon'ble ITAT, Agra Bench, Agra held that notice served on assessee was validly served. case is reported at 79 ITD 639. While deciding issue in favour of department Hon'ble ITAT also discussed decision of various courts including decision of Supreme Court in case of CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147 (SC) and decision of Allahabad High Court in case of Madan Lal Agarwal v. CIT [1983] 144 ITR 748. Assessing Officer has pointed out that notice under section 148 was served on authorized representative of assessee. assessment order made under section 144 for non-compliance with notice under section 142(1) duly served on assessee was perfectly valid. appellant had enjoyed taxable income but did not file return of his income voluntarily under section 139(1) and in spite of valid service of show-cause notice before initiating proceedings under section 148. He also intentionally avoided to extend his co-operation in assessment proceedings in spite of valid service of notice under section 142(1). counsel of assessee Shri Anupam Sinha, Advocate had attended on 16-3-2001 before Assessing Officer and filed application seeking adjournment without any authority. However, case was adjourned to 20-3-2001 with direction to file Income- tax return on 20-3-2001. Nobody attended on 20-3-2001. However, on 22-3- 2001 Shri Anupam Sinha, advocate attended with authority and requested for inspection of file. Inspection was allowed and case was adjourned to 23-3- 2001. On 23-3-2001 also no body attended hearing nor any application seeking adjournment was received. It was under these circumstances that assessment was completed under section 144 as assessment was getting barred by limitation. Assessing Officer has pointed out that assessee and his firm were being assessed to tax since long and his share in firm was determined above taxable limits and therefore he must have been expecting action under section 148 but he intentionally avoided filing of return both before receipt of show-cause notice and after receipts of show-cause notice as well notice under section 148. 3.6 learned representative of appellant in his rejoinder has made n o comments on facts of case as given by Assessing Officer. appellant has again challenged service of notice and quoted following case laws in his support: (i ) Fatehchand Agarwal v. CWT [1974] 97 ITR 701 (Ori.). (ii ) Dina Nath v. CIT [1993] 204 ITR 667, 673 (J & K). (iii ) Singhal Electric Works v. CST [1972] 30 STC 112 (All.). (iv ) Gopi Ram Bhagwan Das v. CIT [1956] 30 FIR 8 (Pat.). (v ) Thangam Textiles v. First ITO [1973] 90 ITR 412 (Mad.). (vi ) C.I. Raj Gopal v. State of Mysore [1972] 86 ITR 814 (Mys.). (vii ) P.N. Sasi Kumar v. CIT [1988] 69 CTR (Ker.) 78. (viii ) ITO v. N. Janardhan Reddy [1955] 521 TTJ (Hyd.) 11. (ix ) B. Johar Forest Works v. CIT [1977] 107 ITR 409 (J & K). (x ) CIT v. Mintu Kalita [2001] 117 TAXMAN 388 (Gauhati). (xi ) Jayanthi Talkies Distributors v. CIT [1979] 120 ITR 576 (Mad.). (xii ) Uma Shanker Mishra v. CIT [1982] 136 ITR 330 (MP). 3.7 learned representative of appellant has also emphasized that defect in not properly serving notice under section 148 cannot be cured by section 292B. He has also argued that case of Chandra Bhan Bansal v. Dy. Commissioner of Income-tax,A g r was different so far as facts are concerned. In this connection he had submitted as under: 'That with due respect to Hon'ble ITAT, it is submitted that word 'generally' used in title of this section cannot be equated with casualness and carelessness. word is used for special reasons to cover scope of section to cases where mode of service of notice has not been defaulted, since following section 283 covers case of service of notice when family is disrupted or firm is dissolved, section 284 deal with service of notice in case of discontinued business, so to widen scope of this section so as to enlarge it to cases not specifically covered under provision of sections 283, 284 terms 'generally' is used by Legislature.' 3.8 learned representative of appellant in letter dated 7-3-2002 has also pointed out fact that: 'That during course of hearing on 6-3-2002 question of validity of service of notice was argued at length, your honour have also perused records and file of assessment proceedings under section 148 of Act and in records no such authorization/power of attorney was seen/found by your honour or by Assessing Officer. However, if claim of assessee as mentioned in this letter is contrary in relation to facts, same shall be intimated immediately on receipt of this letter.' 3.9 I have considered arguments of learned representative of appellant and facts as pointed out by Assessing Officer and not disputed by learned representative of appellant. facts of case are that appellant is partner in firm M/s. Doneria Cold Storage & Ice Factory, Agra. assessment in case of firm was completed under section 143(3) in which share of assessee was determined at Rs. 36,390. assessment of firm was however, later on revised and finally determined share of appellant came to Rs. 76,787. Thus, claim of appellant that determined share was Rs. 36,390 is only giving facts partly and thus misleading. Assessing Officer has clarified this matter and appellant has not challenged this. It is also argued by appellant that period of 9 years had elapsed before notice under section 148 was issued. In fact order under section 143(3)/154/251 was passed on 31-3-1997 in case of firm determining income at Rs. 3,90,970. Thus, appellant was very much aware about its determined share. matter was not as old as learned representative of appellant would like me to believe. Assessing Officer issued letter dated 3-9-1998 to appellant. In this letter Assessing Officer has clearly mentioned that perusal of case records showed that return of income for assessment year 1988-89 was not filed. Assessing Officer, therefore requested assessee to file duplicate of Income-tax return if same had been filed, along with receipt for original return having been filed. Time was given to appellant up to 7-9-1998. This letter has been served on appellant on 3-9-1998. Thus, appellant had become aware of its liability to file return of income on 3-9-1998. Since no reply was received by Assessing Officer he submitted proposal to Addl. Commissioner of Income-tax. After obtaining approval which was granted on 14-9-1998 notice under section 148 was issued by Assessing Officer dated 15-9-1998. I have seen office copy of this notice. It is duly received on 6-10-1998 by 'A/R'. After this notice notice under section 142(i ) was issued dated 8-2-2001 fixing date on 18-3-2001. On back of this notice Assessing Officer has mentioned as under: 16-3-2001 under section 143(2). There is notice dated 12-3-2001 under section 142(1) fixing case for hearing on 16-3-2001. Shri Anupam Sinha counsel of appellant filed letter dated 16-3-2001 requesting as under: 'In this connection, it is requested that since assessment records pertains for more than 12 years back, so reasonable time may be allowed to collect and go through assessment records and accordingly correct and proper recourse may be taken.' Assessing Officer on this letter has written as under: 'File return before 20-3-2001'. counsel has written on this letter below remark of Assessing Officer as under: 'Noted' It may be emphasized here that on date of filing this application Shri Anupam Sinha had not filed his Vakalatnama before Assessing Officer. On 20-3-2001 counsel of appellant filed its Vakalatnama, challan of Rs. 50 and request for Xerox copies of documents. There is noting by counsel of appellant on this request letter, as under 'Received Xerox copy for assessment year 1988-89.' -sd- 22-3-2001. 3.10 From these facts it is clear that notice was properly served on authorized representative of assessee. In response to notice under section 142(1) Shri Anupam Sinha, Advocate attended. It would have been very embarrassing situation if Assessing Officer had asked him to come and appear only after filing proper Vakalatnama. I am emphasizing this fact to derive home point that regular counsel of appellant are generally heard and entertained by Officers of department even without Vakalatnama being filed. assessment orders are not passed ex parte on taking technical grounds of non-compliance. appellant was aware of its liability to file return of Income-tax for assessment year 1988-89. letter was also issued by Assessing Officer dated 3-9-1998 to appellant. However, appellant chose not to file return of income. It may be underlined here that appellant has not challenged determined share taken by Assessing Officer. same has been accepted. However, even on this determined share which is not at all disputed, appellant does not want to pay tax because according to him notice under section 148 was not properly served. During course of assessment proceedings counsel of appellant attended hearing and took Xerox copies of documents as well as order sheet. There was nothing more which was required by appellant to file return of income if he had any real intention of filing return of income. 3.11 learned representative of appellant has relied on innumerable decisions. Before taking these decisions it is necessary to first clarify one point. word used in section 149 is issued and it does not mean served. position has been finally clarified by Hon'ble Supreme Court in case of R.K. Upadhyaya v. Shanabhai P. Patel 166 ITR 163, 165. It has been held by Supreme Court that scheme of Income-tax Act, 1961, so far as notice for reassessment is concerned, is quite different from that of 1922 Act. Clear distinction has been made out between 'issue of notice' and 'service of notice' under 1961 Act. Section 149 of 1961 Act, which provides period of limitation, categorically prescribes that no notice under section 148 shall be issued after period prescribed has lapsed. Once notice is issued within period of limitation, jurisdiction becomes vested in Income-tax Officer to proceed to reassess. Section 148(1) provides for service of notice as condition precedent to making order of assessment. Service, under new Act, is not condition precedent to conferment of jurisdiction on Income-tax Officer; it is condition precedent only to making of order of assessment. Since in present case notice under section 148 was issued in time after following necessary condition precedent as prescribed in Act, Assessing Officer validly held power and jurisdiction to reassess income of appellant. 3.12 next point is service of notice. In this connection Hon'ble ITAT, Agra Bench, Agra which is jurisdictional ITAT has held as under: 'The service of notice under section 148 on son of assessee was valid service. It was not case of granting concession of jurisdiction to person where conditions necessary for invoking provisions of section 148 were not complied with. There was another reason for such view. Section 282 which provides for procedure for service of notice has its title 'service of notice generally'. use of word 'generally' indicates that it is not mandatory that notice has to be served on assessee itself. It can be served on others in special circumstances. purpose for issue of such notice is that assessee must be aware of its responsibility and liabilities. So that he can defend himself from impending action. Section 282 has used word 'may'. This word gives certain leverage to Assessing Officer regarding service of notice. Section 282 also has not indicated procedure for service of notice in case of individual. If somebody went by logic of assessee, no notice could be served on employees of individual. That was never intention of section 282.' 3.13 While giving this decision Hon'ble ITAT have considered case of CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147 (SC) and Madan Lal Agarwal v. CIT [1983] 144 ITR 745. Thus, Hon'ble ITAT has held service of notice under section 148 to be valid even when service of notice was made on sons of appellant. In present case notice has been served on authorized representative of appellant. Shri M.K. Tyagi, CA had even appeared before CIT (Appeals)-I in case of firm from which appellant derives share income as partner, against order under section 271(1)(c) as late as on 23-4-1998. Assessing Officer pointed out that there was power of attorney in favour of Shri M.K. Tyagi, CA signed by assessee, particularly for year under consideration. Even though it was not challenged by learned representative of appellant in written rejoinder filed, same was vehemently denied to be present on case records during course of hearing in presence of present Assessing Officer. Assessing Officer before me, in presence of counsel of appellant, stated that he had seen letter of authority with his own eyes before sending his report dated 20-2-2002. I am inclined to agree with Assessing Officer. He had no reason to mention any fact which was not correct. Assessing Officer had taken over charge of this case quite recently. Assessing Officer is expected to send submissions after going through case records. Thus, even though authority letter was not found available on record, I believe version of Assessing Officer that he had seen letter of authority. same is however, immaterial so far as decision in this case is concerned. learned representative of appellant has not denied that Shri M.K. Tyagi, CA had been representing group cases. In fact there is evidence on record to show that Shri M.K. Tyagi, CA had appeared as late as on 23-4-1998 before CIT (Appeals) in matter of penalty proceedings under section 271(1)(c) for assessment year 1988-89 in case of firm viz. Doneria Cold Storage & Ice Factory, Agra, Fatehabad, Agra of which assessee is partner. notice served on authorized representative appellant is, therefore, treated as valid service of notice. Most of decisions quoted by appellant have been considered by ITAT in case of Chandra Bhan Bansal v. DCIT reported above. I will discuss some of other cases to show as to how facts of those cases are difference from facts of present case. I start with decision in case o f P.N. Sasi Kumar v. CIT 170 ITR 80 (Ker.). In this case notice of reassessment of A.O.P. was issued to member without specifying where it was on member or principal officer of A.O.P. It was on these facts that following question was referred before Hon'ble High Court 'Whether on facts and in circumstances of case, Hon'ble ITAT was justified in coming to conclusion that proceedings vide notice dated September 2, 1977 were validly initiated. (2) whether on facts and in circumstances of case Appellate Tribunal had material to come to conclusion that notice issued to individual was only mistake curable and not one which affects jurisdiction although assessment was made in status of 'Association of persons'.' facts of present case are totally different there is no doubt regarding identity or status of person against whom proceedings were initiated and notice under section 148 was issued and served. While delivering judgment in this case Hon'ble High Court relied on Commentary given in Kanga and Palkhiwala L w and Practice of Income-tax Volume-1 page 910. service of notice has given in section 282 has been dealt with by same author on page 1696 of VIII Edition they have mentioned that where notice is served otherwise than by post, e.g., through peon or process server, notice need not be served personally on assessee. They have given citation of case of Rex v. Ismail 1 ITC 192 in this regard. notice need not be served personally on assessee. It may be served on his authorized agent. On this point learned author have quoted cases of Mithoolal v. CIT 64 ITR 377; Jangi v. CIT 3 ITC 418; Ramanathan v . CIT 2 ITC 474. Service at assessee's business premises on agent exercising authority in respect of Income-tax matters, though not authorized in writing in that behalf, is valid service under this section. (Himmatram v . CIT 5 ITC 133; Tiwari v. CIT 46 ITR 236 and CWT v . Ila Pal 82 ITR 936). In present case notice was duly served on authorized representative of appellant as mentioned earlier. Assessing Officer had jurisdiction to reassess income by properly issuing notice under section 148. assessment order was properly and legally completed because notice under section 148 was duly served on authorized representative of appellant. appellant had been given opportunities by issuing notice under section 142(1) for filing return of income before assessment was completed. appellant never challenged jurisdiction of Assessing Officer at stage of assessment. learned representative of appellant was made aware of material available on records and also given photo copies thereof. In view of this service of notice and assessment order framed is held to be valid. 3.15 I am referring to few other cases relied upon by learned representative of appellant. Addl. CIT v. Prem Kumar Rastogi [1986] 124 ITR 381 (All.). In this case assessment order was served on one Shri RKR who was not at all agent or member of HUF. appellant obtained copy of assessment order after two years and filed appeal. question before Hon'ble High Court was whether appeal was within time. Hon'ble High Court in this case decided that ITAT was justified in holding that appeal was within time. Thus, question referred to High Court pertained to service of assessment order and delay in filing appeal. In present case no prejudice has been caused to appellant in matter of any of its legal rights. Assessing Officer had been given enough opportunities to present its case. assessment has been completed on determined share about which there is no dispute. Thus, assessment order passed by Assessing Officer is valid and also service of notice is held to be valid. 3.16 In case of CIT v. Girdhari Lal [1984] 147 ITR 379 (Raj.) question before Hon'ble High Court was whether authorized representative was authorized to appear in proceedings under section 263 when normal assessment proceedings were completed. In present case facts are different. proceedings are under section 148 for reassessment. These are, therefore, assessment proceedings and, thus, facts of case relied upon by appellant are not applicable to this case. 3.17 In case of Kunj Bihari v. ITO [1983] 139 ITR 73, 76 (Punjab), assessee had filed return for assessment year 1983-84 showing income of Rs. 14,840. assessee claimed that he did file return for relevant year, but according to Income-tax authorities said return was filed before some ITO who had no jurisdiction to proceed with assessment, and, consequently notice was issued by ITO under section 139(2) of Income-tax Act, 1961 for filing return. assessee claimed that notice was not served. It was under these circumstances that Hon'ble High Court had considered that before resorting to substituted mode of service by affixture, it was duty of Department to discharge onus by showing that authority concerned had reason to believe that assessee was keeping out of way for purpose of avoiding service or that there were other good reasons to come to conclusion that summons could not be served in ordinary way. In present case Assessing Officer served notice on authorized representative under normal circumstances which was duly accepted by him. appellant had not filed any return of income earlier. Thus, facts of this case are not at all material to facts of present case. In view of above position of law and particularly relying on decision of Hon'ble ITAT, Agra Bench, Agra in case of Chandra Bhan Bansal I hold that service of notice on authorized representative was valid service and consequently assessment order passed under section 144 was valid order in accordance with law.' [Emphasis supplied] 4.5 Since assessee has objected to order of CIT(A) before Tribunal, ld. Sr. D.R. Mrs. Sunita Bainsla, Addl. CIT, who was representing Revenue at that time filed application dated 14-1-2003 alongwith affidavit of Mr. S.H. Rizvi, ACIT, Central Circle, Agra executed on 23-12-2002 requesting for admission of affidavit of Mr. Rizvi in support of Revenue's claim that there was power of attorney in favour of Mr. M.K. Tyagi and executed by assessee for assessment year 1988-89. letter of ld. Sr. D.R. and affidavit thereafter read as under:- 'F. No. Misc./Addl. CIT/ITAT/Agra/2002-03 Office of Senior Departmental Representative Income-tax Appellate Tribunal, Room No. 314, Ayakar Bhawan, Agra. Phone: 2155866 Dated: 14-1-2003 To Asstt. Registrar, Income-tax Appellate Tribunal, Agra. Sir, Subject: ITA Nos. 151 & 152/Agra/02 - Appellate proceedings in case of Rajeev Kumar Doneria C/o M/s. Doneria Cold Storage & Ice Factory, F-19, Kamla Nagar, Agra. Assessment year 1988-89: above appeals have been fixed for hearing on 24-1-2003. In connection with same kindly find enclosed affidavit of Shri S.H. Rizvi, Central Circle, Agra [the then ACIT-4(1)] dated 23-12-2002 in support of submissions made by Assessing Officer before ld. CIT(A)-II, Agra. affidavit may kindly be placed on record for kind consideration of Hon'ble Members. Yours faithfully Sd/- (Sunita Bainsla) Addl. CIT Senior Departmental Representative Income-tax Appellate Tribunal, Agra Bench, Agra. 1. Copy to Shri Rajeev Mehrotra, Addl. Commissioner of Income-tax, R n g e - 4 , Agra with reference to his letter F. No. Addl. CIT/R- 4/Agr./Notice/ITAT/02-03/1790 dated 8-1-2003. 2. Copy to assessee for information to be served on counsel Shri Anurag Sinha, Advocate, Agra. (Sunita Bainsla) Addl. CIT Senior Departmental Representative Income-tax Appellate Tribunal, Agra Bench, Agra.' Affidavit: 'Before Income-tax Appellate Tribunal, Agra Bench, Agra. Affidavit of S.H. Rizvi, Assistant Commissioner of Income-tax, Central Circle, Agra. I, S.H. Rizvi son of Late Sri Abdul Jabbar Rizvi aged 49 years resident of Flat No. 1, Block No. 25, Sanjay Place, Agra, solemnly affirm as under: 1. That during financial year 2001-02 I was posted as Assistant Commissioner of Income-tax 4(1), Agra. 2. That in case of Sri Rajeev Kumar Doneria Partner of M/s. Doneria Cold Storage & Ice Factory, Fatehabad, Agra R/o F-19 Kamla Nagar, Agra for assessment year 1988-89 appeal was pending before learned CIT (Appeals), Agra. 3. That learned CIT (Appeals) required my comments on written submission filed by assessee during hearing of appeal and, therefore, case record for assessment year 1988-89 was put up before me and comments based on documents available on records were forwarded by me to learned CIT (Appeals), Agra. 4. That when I signed report containing my comments power of attorney in favour of Sri M.K. Tyagi, C.A., duly signed by assessee Sri Rajeev Kumar Doneria, was available on assessment records. 5. That contents of paras 1 to 4 are correct and true to best of my knowledge and belief and nothing has been concealed. Signed and verified at Agra on this 23rd Day of December, 2002. Sd/- Deponent' 5. It was in view of above facts and circumstances of case that parties have advanced their respective arguments on basis of their respective paper books. 6.1 counsel for assessee, after referring to facts on record and various documents placed on assessee's paper book as well as relevant Para's of order of CIT(A), so far as question relating to validity of service of notice under section 148 dated 15-9-1998 for assessment year 1988-89 and subsequent proceedings is concerned, had relied upon written submissions, which were in following terms:- (i ) That during course of hearing before CIT(A), assessee submitted that impugned assessment was completed without proper service of notice and as such assessment order has no operational force and is void ab initio. (ii ) That it was also submitted that it would be wrong to say that assessee executed power of attorney for assessment year in question and for proceedings in hand through which Sri M.K. Tyagi can be said to be authorized representative of assessee. (iii ) That matter was also argued before Ld. CIT(A) in presence of Assessing Officer as is apparent from order of Ld. CIT(A) and Ld. Authorities were of opinion that on strength of that Power of Attorney and on fact that Sri M.K. Tyagi appearance before CIT(A) as late as on 23-4-1998 that Power of Attorney also holds good for service of notice issued under section 148. (iv ) That your Honour Sir, as could be seen from impugned order of Ld. CIT(A) great importance has been attached to Sri M.K. Tyagi appearance before CIT(A) in case of erstwhile firm of assessee as late as on 23- 4-1998. It has also been said that assessee is one of partner in that firm and proceedings are said to be same assessment year. (v ) Your Honour Sir, it is submitted that Power of Attorney has limited application and though it is said to for same assessment year yet it cannot be extended to any other proceedings for same assessment year in respect of different assessee. (vi ) That Income-tax Act recognizes dual capacity of assessee one as partner in firm and other one as individual. That further Power of Attorney authorizes to represent assessee before authorities, it does not authorizes to receive notices of any other proceedings that may be taken up by department in future. (vii ) That your Honour Sir, as could be appreciated from facts of case that there is no whisper in order of CIT(A) that Sri M.K. Tyagi ever appeared before Assessing Officer in connection with proceedings under section 148 of Act and when this fact with even with reference to Order Sheet cannot be proved then it would be highly uncharitable to argue case that service was made on authorized representative of assessee. (viii ) objection was also made at time of personal hearing and Ld. Assessing Officer before CIT(A) was invited to show that whether there is any slightest indication in order sheet that could prove Sri M.K. Tyagi appearance or impugned fact of his filing Power of Attorney during proceedings under question. But this question does not find answer in even order of Ld. CIT(A). (ix ) That your Honour Sir, it is beyond understanding that how assessee can be expected to give Power of Attorney in advance for proceedings of which he has no inkling or that may be taken against him by department. That Prior to issuance of notice letter dated 3-9-1998 was issued but it is undisputed fact that it was not complied. So occasion of either filing Power of Attorney by Sri M.K. Tyagi or its execution by assessee cannot be canvassed. (x ) That above facts clearly speaks that in this case service has been made without proper authorization and learned Assessing Officer in case of Rajeev Kumar Doneria probably found old power of attorney and made reference to that power of attorney and when k objection about its validity and its application to other proceedings came into question and when question of production of that power of attorney arose, answer of its being misplaced came into existence. (xi ) On facts and in circumstances of case, your Honour would kindly appreciate that in present case no such power of attorney ever existed and service of notice has been made on person who was not authorized by assessee to receive notice issued under section 148 and on these facts, learned CIT(A) greatly erred on facts and on basis of material on records in concluding that notice was served validly. (xii ) That in this connection it is respectfully submitted before your Honour that it is really difficult to understand position of law and analogy as developed by CIT(A). It appears that Ld. CIT(A) has not addressed himself to central issue of case which goes to root of matter and relates to service of notice which is foundational notice and which gives jurisdiction to Assessing Officer to make assessment. When jurisdiction was not properly acquired by Assessing Officer further incidental powers if exercised if without jurisdiction and as such any order passed in furtherance of notice which is proved to have never been served any such order is void ab initio . Section 149 of IT Act as referred by CIT(A) has no relevance to controversy in question. (xiii ) That further CIT(A) has held that since assessees counsel has attended proceedings before Assessing Officer and also carried out inspection of file so very purpose of serving notice is to bring proposed proceedings to knowledge of assessee is fulfilled and now issue of service of notice cannot be challenged. (a) With respect to above observation of CIT(A), ld. Counsel submitted that in this connection it was submitted before authorities below that assessee attended proceedings in compliance with notice dated 22-3- 2001 under section 142 and such compliance cannot be equated with having knowledge of proceeding under section 148, and in this connection, your Honour's attention is invited to following decision of Hon'ble Gauhati High Court, in case of CIT v. Mintu Kalita [2001] 117 TAXMAN 388, wherein it has been held: 'Service of notice prescribed by section 148 for purpose of initiating proceeding for reassessment is not mere procedural requirement it is condition precedent to initiation of proceeding for assessment under section 147. Mere issuance of notice is not sufficient. There was no material to show that employee appeared in pursuance of notice under section 148. He appeared only in response to notice under section 142(1). Section 142(1) deals with enquiry before assessment and appearance of employee in terms of this notice to produce such accounts or documents as Assessing Officer may require, could not be deemed to be knowledge of proceeding under section 147. That being position, no notice was served under section 148 and appearance of person in response to notice under section 142(1) could not be deemed to be knowledge of proceeding under section 147.' (b) ld. Counsel relied upon another decision in case of B . Johar Forest Works v. CIT [1997] 107 ITR 409 (J&K) for following observations: 'Knowledge about assurance of notice otherwise then by its service on person concerned is one thing and service of notice on person i s another. Such knowledge cannot be considered to be equivalent to or substitute for service of notice on assessee. partners of assessee firm or its manager may have knowledge about issuance of notice but that does not mean that service had been affected on them.' (xiv ) That while passing order Ld. CIT(A) as placed reliance to decision of Hon'ble Agra Tribunal in case of Chandra Bhan Bansal v. Dy. CIT [2001] 79 ITD 639. In this case decided by Hon'ble ITAT, Agra Bench, Agra, facts were that notice was issued under section 148 and was served on major son of assessee and assessee acted on that notice and file return of income showing total income of Rs. 1,65,000 and even paid due tax on it. (xv ) In facts in present case, status of person on whom alleged service is made is under dispute, assessee did not acted on notice under section 148 of I.T. Act, did not file return of income. Otherwise also Hon'ble ITAT, Agra Bench, Agra has confirmed to settle legal position that service of notice on major son is valid service. It was upon these facts that service of notice in case of Chandra Bhan Bansal (supra) was held to be valid service. (xvi ) That further authorities below has relied upon judgment of Chandra Bhan Bansal's case (supra) in which it has been held that notice need not be served on assessee himself, it can be served on others, in these special circumstances. (xvii ) It would be highly improper to place reliance to this part of order as though Hon'ble Bench, has authorized that notice can be served on others but condition is attached to it and that is it can be but in special circumstances. That so far no special circumstances, is brought on records so as to necessitate service of notice on authorized person. It is pertinent to mention here that prior to and post issuance of notice under section 148, all notices/letters were either been served in person or through registered post. So in circumstances, reliance place to judgment of Chandra Bhan Bansal (supra) is misplaced. (xviii ) That further authorities below has relied to judgment of Hon'ble Allahabad High Court in case of Mithoo Lal Tek Chand v . CIT [1967] 64 ITR 377. facts of case are totally different with facts of present case in your Honour hands has in that case, notice was served Munim of assessee and Court held that impropriety and irregularity, if any, in service of notice must be deemed to have been waived because assessee has filed return without any protest court further held that it was admitted fact that all members of assessee were present when postman had brought notice and there was no good and sufficient reason why postman should pick munim, leaving out members of family, to have acknowledgement due receipt signed by him. Hon'ble High Court was of view that it had been 'stage managed'. (xix ) In CWT v. Mrs. Illa Pal Choudhury [1971] 82 ITR 936 (Cal.); facts were that notice for reassessment was served on assessee's accountant and assessee filed returns in response notices, it was upon these facts Hon'ble High Court held that assessee having filed returns in response to notice for reassessment served on his accountant without any objection, there was proper service of notice, in facts and circumstances of cases. (xx ) In K.C. Tiwari & Sons v. CIT [1962] 46 ITR 236 (Bom.). facts of case were that notice was served on manager of assessee, assessee admitted to have received notice, he filed reply requesting Assessing Officer for adjournment. It was upon these facts that Hon'ble High Court held that assessee must be deemed to have waived that irregularity by admitting that he had received notice and having thereafter proceeded to obtain further adjournment. (xxi ) That your Honour Sir, from perusal of case laws being relied upon by revenue, common feature in all cases can be pointed out and that though in above cases assessee disputed service of notice but in three of above mentioned cases, have filed returns in pursuance of said notices and in last case admitted to have received notice and sought adjournment on said notice. (xxii ) That in present case before your Honour assessee is all along and consistently stating that no notice under section 148 was received by him and no return of income have been filed in instant case so no reliance can be placed to above referred authorities. 6.2 Reliance was further placed on following decisions - specially observations extracted thereunder:- (i ) Addl. CIT v. Prem Kumar Rastogi [1980] 124 ITR 381(All.) Observations: 'The fact that in past notices used to be served on R and assessee never took any objection that services of notices on R were improper and invalid shall not make R authorized or recognized agent of assessee. On findings, R was neither recognized nor authorized agent, nor agent who was carrying business of assessee. He was not adult member of assessee family. Delivery of notice to R was not valid according to provisions of CPC. That delivery of Notice on R was not valid service.' (ii ) CIT v. Girdharilal [1984] 147 ITR 379 (Raj.) Observations: 'Revision - Opportunity of being heard - Power of Attorney given contemplated powers relating to assessment and appellate proceedings - After completion of assessment or for that matter after decision in appeal from same, assessee could not contemplate any proceedings for revision under section 263 - Notice was served on assessee for initiating action under section 263 - Same received back with postal endorsement 'Left without address' - Subsequently notice issued on One RS holding said power of attorney - RS requested CIT to grant adjournment and communicate directly with assessee as RS had no instruction from assessee in this regard - CIT in spite thereof took action under section 263 - Not justified.' (iii ) Jayanthi Talkies Distributors v. CIT [1979] 120 ITR 576 (Mad.) Observations: 'Reassessment under section 147(b) - Validity of service of notice under section 148 - Service of Notice under section 148 by process-server on manager of assessee-firm who was not specifically authorized to receive notices on behalf of firm was invalid and hence consequent reassessment.' (iv ) ITO v. Mukesh Kumar [2002] 123 TAXMAN 55 (Punj. & Har.) Observations: 'There is nothing on file that S was ever authorized by M to receive said notice. Even at hearing, nothing had been pointed out to show that merely because S was working as Chartered Accountant for assessee he had authority to accept notice on behalf of M or that service of notice on accountant shall be deemed to be service on assessee. If contention of petitioner is accepted, result can be unfair accountant may be negligent. He may not even inform assessee. Yet, he would be liable Court has come to positive conclusion that notice under section 148 is not proved to have been served on assessee. In fact, even on department own showing it was served only on S. In this situation, view taken by trial court was possible one. In any case, it was not perverse. It is not contrary to evidence on records. Thus, no ground for grant of leave is made out. petition is, therefore dismissed in limine.' (v ) Dina Nath v. CIT [1993] 204 ITR 667 (J&K) Observations: 'The object of issuing notice of summons is to intimate concerns to appear and answer queries sought to be clarified by any Court or authority. As serious consequences are likely to follow notice or summons must necessarily be issued and served in form and manner prescribed by law. authority issuing notice cannot be permitted to substitute its own procedure for service of notice. agent contemplated under order 5 CPC, upon whom notice can be served for and on behalf of defendant is such person who has been fully authorized in that behalf in terms of order III, r 6, CPC. Under sub-r (2) of r 6 'Such appointment may be special or general and shall be made by instrument in writing signed by principal and such instrument or if appointment is general, certified copy thereof shall be filed in court.' combined reading of order 3, r 6 and order 5, r 9, CPC leaves no doubt that empowering of agent can be made only in manner detailed in order 3, r 6 and verbal authorities is not enough.' (vi ) Y. Narayana Chetty v. ITO [1959] 35 ITR 388 (SC) Observations: 'The service of requisite notice on assessee is condition precedent to validity of any reassessment made under section 34; and if valid notice is not issued as required, proceedings taken by ITO in pursuance of invalid notice and consequent order of reassessment passed by him would be void and inoperative. notice prescribed by section 34 cannot be regarded as mere procedural requirement; it is only if said notice is served on assessee as required then ITO would be justified in taking proceedings against him. If no notice is issued or if notice issued is shown to be invalid then validity of proceedings taken by ITO without notice or in pursuance of invalid notice would be illegal and void.' (vii ) Keshab Narayan Banerjee v. CIT [1999] 238 ITR 694 (Cal.) Observations: 'Reassessment - Service of notice - Service by Registered Post - At no stage of proceedings revenue set up any plea that notices were served on assessee by registered post - On contrary it had been consistent stand of revenue all along that notices could not be served by registered post and service was effected by affixation - Further there was no endorsement on cover of either refusal of service or even return of envelope to sender - There is therefore no material to justify inference that service by registered was effected or should be deemed to have been accomplished - In absence of service of notice order under section 147 are bad in law - Therefore proceedings under section 263 originating from such order are also not valid.' (viii ) M.O. Thomas v. CIT [1963] 47 ITR 775 (Ker.) Observations: 'Reassessment under section 34 of 1922 Act - Validity - Notice under section 34, invalidly served would invalidate reassessment proceedings - Assessee having head office at Trichur and Branch at Kozhikode - Notice under section 34 served by affixtures on business premises of assessee at Kozhikode with report that assessee was permanently residing at Trichur and notice at Trichur served by affixtures on residential premises of assessee with report that assessee was not available - Provision of section 63 r/w Order 5 of CPC not compiled with - Service of notice improper and so also consequent reassessment proceedings.' (ix ) Madan Lal Agarwal v. CIT [1983] 144 ITR 745 (All.) Observations: 'Issuing of valid notice to assessee under section 148 within period specified under section 149 of Act is condition precedent to validity of any assessment to be made against such assessee under section 147. Accordingly, where no such notice has been issued or if notice issued is not valid or same has not been served on assessee in accordance with law, it will not be possible to sustain eventual assessment made under section 147 on basis of such notice.' (x ) CIT v. Mintu Kalita [2001] 117 TAXMAN 388 (Gauhati) Observations: 'Service of notice prescribed by section 148 for purpose of initiating proceeding for re-assessment is not mere procedural requirement it is condition precedent to initiation of proceeding for assessment under section 147. Mere issuance of notice is not sufficient. There was no material to show that employee appeared in pursuance of notice under section 148. He appeared only in response to notice under section 142(1). Section 142(1) deals with enquiry before assessment and appearance of employee in terms of this notice to produce such accounts or documents as Assessing Officer may require could not be deemed to be knowledge of proceeding Officer may require could not be deemed to be knowledge of proceeding under section 147. That being position, no notice was served under section 148 and appearance of person in response to notice under section 142(1) could not be deemed to be knowledge of proceeding under section 147.' (xi ) B. Johar Forest Works v. CIT [1997] 107 ITR 409 (J&K) Observations: 'Knowledge about assurance of notice otherwise then by its Service on person concerned is one thing and service of notice on person i s another. Such knowledge cannot be considered to be equivalent to or substitute for service of notice on assessee. partners of assessee firm or its manager may have knowledge about issuance of notice but that does not mean that service had been affected on them.' (xii ) Shree Changdeo Sugar Mills Ltd. v. ITO [1984] 18 TTJ (Bom.) 201 Observations: 'Service of notice on one D who was engaged in connection with some other matters, could not be treated as service of notice on assessee inasmuch as no authority was given by D in this regard - Ex parte order passed by Tribunal without serving proper notice on assessee, therefore invalid.' 6.3 With regard to findings of CIT(A) in para 13 of his order, where ld. CIT(A) has, after having found on examination of assessee's income-tax records in proceedings under section 148 of Act, that there existed no power of attorney in favour of Mr. M.K. Tyagi given by assessee for assessment year 1988-89, ld. Counsel submitted that CIT(A) was not justified in believing Assessing Officer's version that he had seen power of attorney in favour of Mr. M.K. Tyagi. 6.4 With respect to Revenue's request for admission of affidavit of Assessing Officer, counsel for assessee has filed counter affidavit of assessee, which reads as under:- 'Before Hon'ble Income-tax Appellate Tribunal, Agra Bench, Agra. Counter Affidavit of Shri Rajeev Kumar Doneria aged about 37 Years, Son of Shri Raghuvir Prasad Doneria R/o F-19, Kamla Nagar, Agra deponent above named do hereby solemnly affirms and states on oath as under: 1. That deponent is appellant in ITA No. 151 (Agra) 2002/A.Y. 1988-89; i s old Income-tax assessee, and as such is fully aware of about proceedings in ITA No. 151 (Agra) 2002 assessment year 1988-89 filed against assessment order dated 26-3-2001 passed under section 144/148 of Act. Thus deponent is capable of executing this affidavit. 2. That deponent has read Affidavit dated 23-12-2002 filed by Shri S.H. Rizvi, Assistant Commissioner of Income-tax, Central Circle, Agra, and have fully understood contents thereof. 3. This is reply to Para 1 of Affidavit, it is submitted that it is matter of records and needs no comment. 4. That averment in this Para No. 2 is vague. It is not mentioned as to of which assessment year appeal was pending with which CIT(A). For sake of arguments it is submitted that when affidavit was executed there was no appellate proceedings pending before CIT(A)-I, Agra. 5. That first contents of part of Para 3 is matter of records and cannot be commented, and later part is denied by deponent for want of knowledge. However, it is admitted that report under signature of Shri S.M. Rizvi was provided to appellant by CIT(A). 6. That contents of Para 6 are denied. Deponent has not given any power o f attorney authorizing Shri M.K. Tyagi, C.A. to appear in assessment proceedings for assessment year 1988-89, arising out of service of notice under section 148 of IT Act. Even, otherwise contents of this Para executed by Sri S.H. Rizvi are very vague. Verification: deponent hereby verifies that contents of Para Nos. 1 to 6 true and correct to best his knowledge and belief. Nothing has been concealed or misstated therein. Verified this on 21st day of October, 2004 at Agra. Deponent' 6.5 In view of above affidavit and Revenue's request, ld. Counsel for assessee submitted that for decisions in following cases and observations thereof, Revenue's petition for admission of affidavit of Assessing Officer in support of its claim that there existed power of attorney executed by assessee in favour of Mr. M.K. Tyagi, should not be accepted. (i ) Velji Deoraj & Co. v. CIT [1968] 68 ITR 708 (Bom.) Observations: 'Appeal (Tribunal) - Additional evidence - Admissibility of additional evidence in appeal depends solely on requirement of Court pronouncing its judgment or for purpose of curing some inherent lacuna which it has itself discovered - In instant case, Tribunal found no difficulty in pronouncing its judgment in absence of further evidence nor did it discover any lacuna or defect - Further, where parties had opportunity to produce evidence at proper stage but failed to do so, same cannot be admitted - Tribunal, therefore, justified in refusing to allow additional evidence.' (ii ) CIT v. Smt. Kamal C. Mahboobbani [1995] 214 ITR 15 (Bom.) Observations: 'Rule 29 of ITAT Rules is couched in negative language so far as rights of parties to produce additional evidence before Tribunal is concerned. It clearly says that parties to appeal shall not be entitled to produce additional evidence either oral or documentary. In that view of matter, question of party claiming right to adduce additional evidence cannot arise. Tribunal has, however, been given power to require any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass order or for any other sufficient cause. For this purpose also, Tribunal has to records reasons.' (iii ) CIT v. Sarat Chandra Bose [1950] 18 ITR 669 (Cal.) Observations: 'Reference - Jurisdiction of High Court - Exercise of discretion by Tribunal in refusing to entertain new point and adduce new evidence not being arbitrary, it could not be directed to state case on that point - powers Tribunal under rule 29 of Tribunal Rules, 1946, being strictly limited, Tribunal did not act arbitrarily in refusing leave to raise new point and to adduce evidence to establish it - Tribunal cannot be directed to state case.' (iv ) CIT v. Babulal Nim [1963] 47 ITR 864 (MP) Observations: 'Affidavit filed not for reason that Tribunal found itself unable to decide appeal on materials before it - Nor assessee prayed for being allowed to file evidence in support of his statement - In these circumstances, there was no justification to rule 29 of ITAT Rules, 1946 - Evidence must be excluded from consideration.' (v ) CIT v. Rao Raja Hanut Singh [2001] 252 ITR 528 (Raj.) Observations: 'Reference - Question of law - Production of additional evidence before Tribunal - Revenue's application for permitting to lead additional evidence disallowed by Tribunal on ground that apart from pleading interest of justice, no other cause was pleaded for adducing additional evidence - Admission of additional evidence - Admission of additional evidence at appellate stage is absolutely within discretion of Tribunal and cannot be claimed as matter of right - Question whether discretion has been exercised judiciously or not cannot be ordinarily question of law unless it can be disputed or found that in exercising that discretion, Tribunal has ignored some well-settled legal principles - No contention has been raised that Tribunal has not correctly enunciated principle on basis of which discretion is to be exercised - No question of law arises out of its appellate order.' (vi ) State of UP v. Manbodhan Lal Srivastava AIR 1957 SC 912 Observations: 'Additional evidence should not be permitted to be produced to enable party to fill up lacuna, especially if party could have produced such evidence before lower authority but failed to do so without sufficient cause for same. It should therefore be noted that this decision does not in all cases rule out reception of additional evidence to fill up lacuna in case of appellant. It rules it out only in cases where he failed to produce same before lower authority without sufficient cause therefore. That is why in Rule 23 of CEGAT (Procedure) Rules it is declared that such opportunity should be given if sufficient cause is shown for reception of same.' (vii ) R. Vishwa Nathan v. Abdul Wazib [1984] 146 ITR 140 (MP) (sic) Observations: 'Evidence was in affidavits, which do not appear to have been ordered and could not, for that reason, be read as evidence. Such evidence as there was highly interested and uncorroborated from any independent source.' (viii ) Smt. Gunwantibai Ratilal v. CIT [1984] 146 ITR 140 (M.P.) Observations: 'An affidavit is piece of evidence, which, along with other material on record, has to be taken into consideration by Tribunal before arriving at finding. There was material on record which was considered by Tribunal along with affidavits and Tribunal found that no reliance could be placed on affidavits. statement by deponent can be held to be unreliable by Tribunal either on basis of cross-examination of deponent or by reference to other material on record leading to inference that statement made in affidavit, cannot be held to be true. Tribunal arrived at its finding on consideration of entire material on record including affidavits. fact that, apart from affidavits filed by assessee, there was other relevant material on record, was not disputed on behalf of assessee. If veracity of statements in affidavits was according to Tribunal disproved by material on record, finding of Tribunal cannot be held to be vitiated, because Tribunal arrived at finding by not placing reliance on affidavits.' 7.1 ld. D.R., on other hand, in addition to supporting order of CIT(A), relied upon decision in following cases specially pointing out to various observations extracted in relevant order for various pleas considered hereunder:- (i ) Since conduct of assessee shows contempt of law and hence, reluctance to pay tax, so deserves no favour. Reliance was placed on decision of Hon'ble Supreme Court in McDowell & Co. Ltd. v. CTO [1985] 154 ITR 148, where Hon'ble Court has observed as under: 'The evil consequences of tax avoidance are manifold. First there is substantial loss of much needed public revenue, particularly in welfare state like India. Next there is serious disturbance caused to economy of country by piling up of mountains of black money, directly causing inflation, then there is 'the large hidden loss' to community by some of best brains in country being involved in perpetual war waged between tax- avoider and his expert team of advisers, law years and accountants on one side and tax gatherer and perhaps not so skilful, advisers on other side. Then again there is 'sense of injustice and inequality which tax avoidance arouses in breasts of those who are unwilling or unable to profit by it'. Last but not least is ethics (to be precise, lack of it) of transferring burden of tax liability to shoulders of guideless, good citizens from those of 'artful dodgers'.' (ii ) assessee's delaying tactics be deprecated and relief be refused and this purpose, reliance was placed on following decisions:- (a) Simplex Enterprises v. Union of India [2002] 257 ITR 689 (Bom.), wherein Hon'ble Court has held as under:- 'The petitioners have not come to Court with clean hands. It cannot be said that said orders have been passed treating them ex parte. On contrary, it will have to be said that petitioners were playing delaying tactics for avoiding liability of paying taxes. When such tactics are played for delaying hearing and false grounds are attempted to be created for future defense, they need to be deprecated. Thus, with disapproval of behaviour of petitioners, petition stands dismissed.' (Assessee writ petition against order of assessment and CIT refusal to revive it) (b) Decision of Hon'ble Allahabad High Court in case of D r . O.P. Agarwal v. CIT [2002] 123 TAXMAN 539, wherein Hon'ble Court, as per judgment dated 15-3-2002 dismissed writ petition of assessee on grounds that writ petition was filed only to delay and to avoid payment of taxes. SLP of assessee dismissed by Apex Court by its order dated 29-8- 2002, 257 ITR 54. (iii ) Referring to Powers of Tribunal, it was submitted that it should protect interest of Revenue and in support relied on decision in case of CIT v. Rayala Corpn. (P.) Ltd. [1995] 215 ITR 883 (Mad.), specially on following observations:- 'The Tribunal has got to protect, on one hand, interest of assessee in sense that he is not subjected to any amount of tax in excess of what he is bound to pay, and on other hand, it has duty to protect interests of Revenue and to see that no one dodged Revenue and escaped without paying tax.' (ii ) Decision in case of CIT v. Ramnath Goenka [2001] 252 ITR 653 (Mad.), was relied upon to extent of following observations: 'Tribunal entitled to pass such orders as would ensure assessment of correct tax liability.' (iii ) Decision in case of Estate of Late Rangalal Jajodia v. CIT [1971] 79 ITR 505 (SC), was relied on to extent of following observations:- 'The lack of notice does not amount to Revenue authority having had n o jurisdiction to assess, but that assessment was defective by reason of notice not having been given to her. assessment proceeding does not cease to be proceeding under Act merely by reason of want of notice. It will be proceeding liable to be challenged and corrected.' (iv ) With respect to service of notice under section 148 on Shri M.K. Tyagi, C.A., it was submitted that (i ) first of all, he was duly authorized by assessee to appear in Income-tax proceedings in assessee's case for assessment year 1988-89 and for that purpose relied on Assessing Officer's remand report sent to CIT(A). Proceeding further, it was submitted that even Mr. M.K. Tyagi, being regularly appeared in past - in assessee's case and in group cases including firm, where assessee was partner, service was valid. Reliance in this respect was placed on following decisions: (a) A.K.M. Govindaswamy Chettiar v. ITO [2000] 244 ITR 559 (Mad.), to extent of following observations:- '148 notice issued on various agents (acting)- compliance made. Service held to be valid.' (b) Decision in case of Chandra Bhan Bansal v. Dy. CIT [2001] 79 ITD 639 (Agra), where Bench Observed: 'Sec. 282 which provides for procedure for service of notice has its title 'service of notice generally'. use of word 'generally' indicates that it was not mandatory that notice has to be served on assessee itself.' (c) Decision in case of Himmatram v. CIT 5 ITC 133, K.C. Tiwari & Sons v. CIT [1962] 46 ITR 236 (Bom.) and CWT v. Illa Pal Choudhury [1971] 82 ITR 936 (Cal.), was relied upon to extent of following observations:- 'Service at assessee business premises on agent exercising authority in respect of Income-tax matters though not authorized in writing in that behalf is valid service under this section.' (d ) Decision in case of Rex v. Ismail 1 ITC 192 (Page 1696 Vol. VIII Edition Chaturvedi & Pithisaria) was relied upon to extent of following observations:- 'When notice is served through peon or notice server it need not be served on assessee personally. It may be served on his authorized agent.' Reliance was further placed on following decisions and observations of different courts, extracted hereunder:- (i ) Ramesh Khosla v. ITO [1985] 154 ITR 556 (Punj. & Har.) 'A mere averment by assessee that notice has not been received by him is not sufficient to rebut such presumption.' (ii ) Azad Crown Works v. CST [1976] 37 STC 570 (Bom.):- 'When it was found that on previous occasion service of notice was effected on particular other person and assessee accepted it as good service and preferred appeal, etc. on assessment order so served it was held that Tribunal finding of fact that person served was former agent of assessee service was justified.' (iii ) Commercial Motors Finance Ltd. v. Asstt. CIT [2002] 82 ITD 176 (Lucknow):- 'Validity of service of notice- assessee having fully acquiesced by its conduct in acknowledging receipt of notice under section 10 through its employee service has be deemed to be proper service.' (iv ) R.K. Upadhyaya v. Shanabhai P. Patel [1987] 166 ITR 163 (SC), CIT v . Major Tikka Khuswant Singh [1995] 212 ITR 650 (SC), 148 notice- CIT v. Kishore Chand [1989] 180 ITR 355 (Punj. & Har.), CIT v. Sheo Kumari Devi [1986] 157 ITR 13 (Pat.) (F.B.):- '148-Notice must be issued within limitation period, service not prerequisite.' (v ) Birla Cotton Spg. & Wvg. Mills Ltd. v. ITO [1994] 209 ITR 434 (Raj.):- 'Having participated in assessment proceedings petitioners cannot complain assessment was illegal because of want of notice to it.' (vi ) CIT v. Bhanji Kanji's Shop [1968] 68 ITR 416 (Guj.):- 'Followed Bombay H.C. Judgment in K.C. Tewari & Sons v. CIT [1962] 6 ITR 236- procedural irregularities in notices service of reassessment but assessee admits receiving or conduct shows-service of notice valid.' (vii ) Mahendra Kumar Agrawalla v. ITO [1976] 103 ITR 688 (Pat.):- 'Reassessment proceedings not invalid for want of proper service-service on clerk not authorized to receive.' (viii ) CIT v. Jai Prakash Singh [1996] 219 ITR 737 (SC):- 'an omission to serve or any defect in service of notices provided by procedural provisions does not efface or erase liability to pay tax where such liability is created by distinct substantive provision [charging sections]. Any such omission or defect may render order made irregular depending upon nature of provision not complied with but certainly not void or illegal.' 7.2 ld. D.R., further, while supporting request for admission of affidavit relied upon decision of Hon'ble High Court of Allahabad in case of L. Sohan Lal Gupta v. CIT [1958] 33 ITR 786, where Hon'ble High Court has held that: 'It is not open to Tribunal to reject plea taken by assessee in his affidavit merely on ground that no documentary evidence has been filed in support of pleas. rejection of affidavit by assessee is not justified unless assessee has either been cross examined or called upon to produce documentary evidence in support of affidavit sworn by him.' 8. In rejoinder, counsel for assessee tried to meet out various submissions of ld. Sr. D.R. by submitting as under: (i ) With respect to D.R.'s claim that Shri M.K. Tyagi, Chartered Accountant has been appearing in assessee's and his group cases earlier and h d been receiving notices, ld. Counsel submitted that that fact is not relevant because it is service of concerned notice, which is relevant and since Mr. M.K. Tyagi, Chartered Accountant had not been authorized by assessee to deal with assessee's income-tax matters for assessment year 1988-89, service on him was invalid service. For this view he relied upon decision of Allahabad High Court in case of Addl. CIT v. Prem Kumar Rastogi (supra). (ii ) Similarly with respect to D.R.'s submission that assessee could have anticipated proceedings in question, ld. Counsel refuted submissions made by ld. D.R. by relying on decision of CIT v. Girdharilal [1984] 147 ITR 379 (Raj.) and observa-tions thereunder, which are as follows: 'Revision - Opportunity of being heard - Power of attorney given contemplated powers relating to assessment and appellate proceedings - After completion of assessment or for that matter after decision in appeal from same, assessee could not contemplate any proceedings for revisions under section 263 - Notice was served on assessee for initiating action under section 263 - Same received back with postal endorsement 'Left without address' - Subsequently notice issued on one RS holding said power of attorney - RS requested CIT to grant adjournment and communicate directly with assessee as RS had no instruction from assessee in this regard - CIT in spite thereof took action under section 263 - Not justified.' (iii ) With respect to specific authority and specific authorization to receive notice, counsel submitted that for assuming jurisdiction under section 148 service of notice under section 148 of Act or provisions of Civil Procedure Code and for this purpose relied upon decision in cases o f ITO v. Mukesh Kumar [2002] 123 TAXMAN 55 (Punj. & Har.), Dina Nath v. CIT [1993] 204 ITR 667 (J&K), Shree Changdeo Sugar Mills Ltd. v. ITO [1984] 18 TTJ (Bom.) 201 and Jayanthi Talkies Distributors v. CIT [1979] 120 ITR 576 (Mad.). (iv ) With respect to Sr. D.R.'s claim that assessee having appeared before Assessing Officer in response to notice under section 142(1) of Act, he was aware of proceedings under section 147/148 of Act and therefore, service in question was valid, assessee relied upon various observations made by various courts in following decisions as under: (a) CIT v. Mintu Kalita [2001] 117 TAXMAN 388 (Gauhati) Observations: 'Service of notice prescribed by section 148 for purpose of initiating proceeding for re-assessment is not mere procedural requirement it is condition precedent to initiation of proceeding for assessment under section 147. Mere issuance of notice is not sufficient. There was not material to show that employee appeared in pursuance of notice under section 148. He appeared only in response to notice under section 142(1). Section 142(1) deals with enquiry before assessment and appearance of employee in terms of this notice to produce such accounts or documents as Assessing Officer may require, could not be deemed to be knowledge of proceeding under section 147. That being position, no notice was served under section 148 and appearance of person in response to notice under section 142(1) could not be deemed to be knowledge of proceeding under section 147.' (b) Laxmi Narain Anand Prakash v. CST [1980] UPTC 125 (All.)(FB): Observations: 'Section 21, U.P. Sales Tax Act, 1948 - Scope - Service of notice on stranger - Improve service - Assessee participating in assessment proceedings - Notice having been improperly served, initiation of proceeding, held, was without jurisdiction - Proceedings cannot be validated by assessee's participation in proceedings - Service of notice - Is condition precedent to assume jurisdiction - Jurisdiction explained - Estoppel, principle of equity - Not applicable to taxation proceedings - 'After issuing notice' - Meaning.' (c) B. Johar Forest Works v. CIT [1997] 107 ITR 409 (JK) Observations: 'Knowledge about issuance of notice otherwise then by its service on person concerned is one thing and service of notice on person is another. Such knowledge cannot be considered to be equivalent to or substitute for service of notice on assessee. partners of assessee firm or its manager may have knowledge about issuance of notice but that does not mean that service had been affected on them.' (iv ) With respect to mandatory requirement of service of notice under section 148, ld. Counsel relied upon following decisions and observations made thereunder: (a) Y. Narayana Chetty v. ITO [1959] 35 ITR 388 (SC) Observations: 'The service of requisite notice on assessee is condition precedent to validity of any reassessment made under section 34; and if valid notice is not issued as required, proceedings taken by ITO in pursuance of invalid notice and consequent order of reassessment passed by him would be void and inoperative. notice prescribed by section 34 cannot be regarded as mere procedural requirement; it is only if said notice is served on assessee as required then ITO would be justified in taking proceedings against him. If no notice is issued or if notice issued is shown to be invalid then validity of proceedings taken by ITO without notice or in pursuance of invalid notice would be illegal and void.' (b) Madan Lal Agarwal v. CIT [1983] 144 ITR 745 (All.) Observations: 'Issuing of valid notice to assessee under section 148 within period specified under section 149 of Act is condition precedent to validity of any assessment to be made against such assessee under section 147. Accordingly, where no such notice has been issued or if notice issued is not valid or same has not been served on assessee in accordance with law, it will not be possible to sustain eventual assessment made under section 147 on basis of such notice.' (c) Laxmi Narain Anand Prakash v. CST [1980] UPTC 125 (All.) (FB) Observations: 'Section 21, U.P. Sales Tax Act, 1948 - Scope - Service of notice on stranger - Improve service - Assessee participating in assessment proceedings - Notice having been improperly served, initiation of proceeding, held, was without jurisdiction - Proceedings cannot be validated by assessee's participation in proceedings - Service of notice - Is condition precedent to assume jurisdiction - Jurisdiction explained - Estoppel, principle of equity - Not applicable to taxation proceedings - 'After issuing notice' - Meaning.' 'Service of notice for purpose of initiating proceedings under section 21 is not mere procedural requirement but is condition precedent. If no notice is issued or notice is shown to be invalid or no notice has been served on dealer proceeding and consequential order under section 21 will be illegal and void irrespective of fact that dealer gets knowledge of proceedings under section 21.' (d ) CIT v. Jagannath Pd. Nankoo Pd. [1996] 222 ITR 58 (All.) Observations: 'We have heard Shri Shekhar Srivastava, for Department, and Shri Vikram Gulati, for assessee. relevant assessment year is 1962-63 in which income assessed by Income-tax Officer was Rs. 83,700 but it was ultimately reduced to Rs. 54,111 by Tribunal. Proceedings under section 148 were initiated and reassessment order was passed and penalty imposed. appeal of assessee before Appellate Assistant Commissioner failed, but in further appeal Tribunal held that there was no valid notice under section 148 served on assessee and condition precedent for issuing notice under section 142(1) was lacking. These are findings of fact and hence we cannot in advisory jurisdiction that we may also refer to decision of this Court in case of Addl. CIT Shri Prem Kumar Rastogi [1980] 124 ITR 381, where it has been held that notice on unauthorized person is not valid.' (v ) With respect to D.R.'s claim that matter in question was covered by order of ITAT, Agra in case of Chandra Bhan Bansal v . Dy. CIT [2001] 79 ITD 639, ld. counsel for appellant, relying upon earlier submissions, further relied on decision of Gujarat High Court in case of Prakash Amichand Shah v. State of Gujarat AIR 1986 SC 468 and relevant observations are as under: 'A decision often takes it colour from question involved in case in which it is rendered. scope and authority of precedent should never be extended unnecessarily beyond needs of given situation.' (vi ) In view of above, counsel submitted that this decision is not applicable to assessee's case. 9. We have considered rival submissions, facts and circumstances of case and various decisions, referred to and relied upon by both parties. 9.1 After having considered totality of facts and circumstances, first of all, we are of opinion that one of vital issues raised in this appeal for our consideration is as to whether revenue's affidavit should be admitted or not and since question of rejection or acceptance of affidavit arises only after its admission, decision of Hon'ble Allahabad High Court in case of L. Sohan Lal Gupta v. CIT [1958] 33 ITR 786 cannot be said to be applicable only if affidavit is admitted. 9.2 After having considered totality of facts and circumstances of case and also provisions of Indian Evidence Act, 1872, we are of opinion that though normally, Income-tax Proceedings are not governed by Indian Evidence Act, and are also aware that Income-tax Proceedings except for purpose specified under section 136 of I.T. Act, are not judicial proceedings, but at same time, it is settled law that income-tax proceedings are quasi-judicial in nature and therefore, we are of opinion that when it comes to issue relating to establishing material fact or issue relating to establishing existence of document on record, issue to that extent goes out of strict provisions of I.T. Act - at least with respect to applicability of Indian Evidence Act; and consequently comes within provisions of Indian Evidence Act - meaning thereby that existence or non- existence of particular document has to be established in accordance with provisions of Indian Evidence Act. In other words, when party during course of Income-tax proceedings, claims existence of particular document on official records in custody of person - may he/she be either Government Officer or subject (assessee), they are entitled to revert back to provisions of Indian Evidence Act and can establish existence or non- existence of such documents by resorting to provisions of Indian Evidence Act. 9.3 So far as provisions of Indian Evidence Act are concerned, we are of opinion that it is necessary to consider provisions of sections 61, 62, 63, 64 and 65 of Indian Evidence Act, which are in following terms: 'Section 61: Proof of contents of documents. -The contents of docu-ments may be proved either by primary or by secondary evidence. Section 62: Primary evidence means document itself produced for inspection of court. Explanation 1.-Where document is executed in several parts, each part is primary evidence of document; Where document is executed in counterpart, each counterpart being executed by one or some of parties only, each counter part is primary evidence as against parties executing it. Explanation 2.-Where number of documents are all made by one uniform process, as in case of printing, lithography or photography, each is primary evidence of contents of rest; but, where they are all copies of common original, they are not primary evidence of contents of original. Section 63: Secondary evidence. -Secondary evidence means and includes- (1) Certified copies given under provisions hereinafter contained; (2) Copies made from original by mechanical processes which in themselves ensure accuracy of copy, and copies compared with such copies; (3) Copies made from or compared with original; (4) Counterparts of documents as against parties who did not execute them; (5) Oral accounts of contents of document given by some person who has himself seen it. Section 64: Proof of documents by primary evidence. -Documents must be proved by primary evidence except in cases hereinafter mentioned. Section 65: Cases in which secondary evidence relating to documents may be given.-Secondary evidence may be given of existence, condition or contents of document in following cases: (a) When original is shown or appears to be in possession or power-of person against whom document is sought to be proved, or Of any person out of reach of, or not subject to, process of Court, or Of any person legally bound to produce it, And when, after notice mentioned in section 66, such person does not produce it; (b) When existence, condition or contents of original have been proved to be admitted in writing by person against whom it is proved or by his representative in interest; (c) When original has been destroyed or lost, or when party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d ) When original is of such nature as not to be easily moveable; (e) When original is public document within meaning of section 74; (f ) When original is document of which certified copy is permitted by this Act, or by any other law in force in (India), to be given in evidence; (g) When originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and fact to be proved is general result of whole collection. In case of (a), (c) and (d ), any secondary evidence of contents of documents is admissible. In case (e) or (f ), certified copy of document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to general result of documents by any person who has examined them, and who is skilled in examination of such documents. 9.4 From provisions of section 61, it is clear that contents of documents can be proved either by primary or by secondary evidence and primary evidence and secondary evidence as defined under sections 62 and 63 are as under: (i ) primary evidence is document itself and is to be produced for inspection of court. It is further prescribed that if document is executed in several parts, then each part falls within definition of Primary evidence of document and if document is executed in counter parts, then each counter part is primary evidence as against parties executing it. Explanation Nos. 1 and 2 to this section further elaborate on subject as to which document is primary evidence. (ii ) Section 63 defines secondary evidence and according to it, secondary evidence is of five kinds; (i ) certified copy given in provisions contained in Evidence Act; (ii ) Copies made from original by Mechanical process, which in themselves ensure accuracy of copies and copies compared with such copies; (iii ) copies made from or compared with original; (iv ) counter parts of documents as against parties, who did not execute them; and (v ) oral accounts of contents of documents given by some person, who has himself seen it. 9.5 provisions of section 64, on other hand, speaks of proof of primary evidence and according to these provisions, to establish proof of document by considering same as primary evidence, documents must be proved except in case mentioned in other provisions of Act. 9.6 So far as section 65 is concerned, it prescribes circumstances under which existence of document, can be established by way of secondary evidence-when it cannot be proved by way of primary evidence. 10.1 So far as present case is concerned, admitted facts are that it is claim of Assessing Officer that he had seen Power of Attorney in favour of Mr. M.K. Tyagi for assessment year 1988-89 executed by assessee, but since same was not found available on record at time of examination of records by CIT(A), we are of opinion that revenue has right to establish existence of same by way of secondary evidence s provided under sections 61 to 65 of Indian Evidence Act and if we consider various eventualities specified under section 65 (supra), we are of opinion that only sub-clause, which can come to rescue of revenue, should be sub-clause (c) of section 65, which speaks that 'when original had been destroyed or lost or when party offering evidence of its content cannot, for any other reason, not arising from his own default or neglect, produce it in reasonable time', but we are afraid that in facts and circumstances of present case, which we will elaborate hereinafter, this clause also do not help revenue because for reasons discussed hereunder, document claimed by revenue to be on record has either been destroyed or lost because of revenue's own default: (i ) Reasons - From facts and circumstances of case, it is observed that Assessing Officer, while sending remand report to CIT(A) had claimed to have seen power of attorney executed by assessee in favour of Mr. M.K. Tyagi, but when CIT(A) examined assessee's assessment records, which might have been sent by Assessing Officer by post or by special Messenger (through some of official of his office), CIT(A) had not found any such power of attorney. This fact has been admitted by revenue. revenue has neither during course of arguments, nor in affidavit has claimed misplacement of concerned document and silence of revenue with respect to this angle leads to presumption that either there was no such document as is being claimed by then Assessing Officer Shri S.H. Rizvi, ACIT or if there was such document, then same got destroyed or lost or stolen during period Assessing Officer sent assessee's assessment records to CIT(A)-meaning thereby that if at all document was on record, same was destroyed or lost or stolen when records were in custody of revenue and if that was case, then offence fell within category of 'Criminal Offence'. Since, it is settled law that if Government Authority comes to know of commission of criminal offence, he or she is duly bound to report same to police, in present case, CIT(A), who just after examination of assessee's records should have referred matter to police or to Chief Commissioner of Income-tax for taking necessary action in this respect, but it is also admitted fact (The ld. D.R. admitted at time of hearing of this appeal) that neither CIT(A) nor CCIT nor CIT nor concerned Assessing Officer had either lodged complaint with police or had made any departmental enquiry so as to fix responsibility of person, from whose custody, relevant document got destroyed or lost or stolen. In view of above admitted fact and circumstances, we are of opinion that there was no power of attorney executed by assessee in favour of Mr. M.K. Tyagi, which Mr. Rizvi could see. (ii ) Without prejudice to our above findings, even if we assume for moment, for sake of discussion, that there was such power of attorney when Assessing Officer opened file, but got destroyed or lost or stolen during period Assessing Officer closed file and was opened by CIT(A), then same has happened for default or neglect on part of revenue itself and it is so because revenue has neither intimated offence to police nor has conducted any departmental enquiry to fix liability and penalize concerned person. Consequently, benefits of section 65(c) of Indian Evidence Act are also not available to revenue. (iii ) Further, affidavit is to be filed only on requirement of Court or Tribunal and not of its own. In present case, Tribunal had not required revenue to establish existence of power of attorney by way of affidavit and, therefore, revenue has no right to file affidavit to establish or in defense of its own shortcomings or negligence or default - whatever nature of default may be. (iv ) (a) Further, as per provisions of section 253(2) of I.T. Act, Assessing Officer can file appeal to appellate Tribunal against order of CIT(A) passed under section 154 or under section 250 of Act only if Assessing Officer is directed to do so by Commissioner - meaning thereby that all petitions or appeal before Tribunal starting from stage of filing of appeal, though can be taken by Assessing Officer i.e., Officer who at relevant point of time holds jurisdiction over assessee's case, but only with express directions of Commissioner and if any petition or appeal is filed by person other than Assessing Officer or by Assessing Officer or person other than Assessing Officer without directions of Commissioner, same is inadmissible under law and hence, non est and cannot be admitted for consideration of Tribunal. In other words, in petition or appeal etc. filed by Assessing Officer or by Officer other than Assessing Officer and without directions of Commissioner to do so, is non est and cannot be considered by Tribunal. (iv ) (b) So far as present case is concerned, affidavit under reference is sought to be admitted on basis of letter dated 14-1-2003 written by ld. Sr. D.R. without enclosing or even mentioning directions of Commissioner of Income-tax. Since request for admission of affidavit has been made without there being any direction of CIT(A) to do so, we are of opinion that under provisions of section 253(3), this request of revenue cannot be acceded to. (v ) Similarly, affidavit executed by Shri S.H. Rizvi, which speaks of his being acting as ACIT 4(1), Agra during financial year 2001-02 goes to show that in December, 2002, he was not Assessing Officer of assessee and therefore, had no right to file affidavit without there being any directions of CIT to do so. 11. In view of above facts and circumstances of case, we are of opinion that revenue is not entitled to establish its claim by way of secondary evidence and therefore, request of ld. Sr. D.R. dated 14-1-2003 for admission of affidavit of Mr. S.H. Rizvi, cannot be acceded to and consequently, affidavit in question is not admitted. 12.1 Coming to merits of case, we are of opinion that:- (i ) (a) First of all we, in view of foregoing facts and circumstances that assessee had not executed any power of attorney in favour of Shri M.K. Tyagi, Chartered Accountant, as has been claimed by revenue and this finding of ours gets support from other supporting facts such as non-compliance by assessee of Assessing Officer's letter dated 7-3-2002, which was served on assessee on 29-3-2001. (b) In present case it is admitted fact that first action taken in assessee's case by Assessing Officer was by way of letter dated 7-3-2002, which, admittedly, remained un-complied with and therefore, there could not be any reason for assessee to execute power of attorney in favour of Mr. M.K. Tyagi for assessment year 1988-89. (c) second proceeding taken in present case was by way of issuance of notice under section 148 on 15-9-1998, which also admittedly remained un-complied with. Under these circumstances, possibility of assessee's executing of power of attorney in favour of Mr. M.K. Tyagi could be either while complying with letter dated 7-3-2002 or, at most, at time of service of notice under section 148 of Act, but this possibility also cannot be considered in revenue's favour. Even theory of preponderance and probability cannot apprehend execution of power of attorney by assessee in favour of Mr. M.K. Tyagi when it is admitted fact that there was no compliance by assessee or its representative to letter dated 7-3-2002 and also to notice under section 148 dated 15-9-1988. So far as possibility of executing power of attorney while receiving notice under section 148 is concerned, we are afraid because such miracle could happen only if assessee could foresee that Assessing Officer will issue notice under section 148 and will proceed to serve on Mr. M.K. Tyagi. (ii ) So far as various decisions relied upon by ld. Sr. D.R. are concerned, we have no hesitation to observe that none of these decisions except decision of ITAT, Agra Bench in case of Chandra Bhan Bansal v. Dy. CIT [2001] 79 ITD 639, which we would like to discuss in subsequent para of this order, relates to mandatory requirement of service of notice under section 148 of Act. For example, (1) reliance of ld. Sr. D.R. on decision in case of Ramesh Khosla v. ITO [1985] 154 ITR 556 (Punj. & Har.) for proposition that 'a mere averment by assessee that notice has not been received by him is not sufficient to rebut such presumption' is not applicable to present case because in present case, Revenue has admitted that notice under section 148 of Act for assessment year 1988- 89 was not served on assessee i.e., Shri Rajeev Kumar Doneria or on his Authorized Representative; (iii ) Similarly, reliance of ld. Sr. D.R. on decision in case of Azad Crown Works v. CST [1976] 37 STC 570 (Bom.) is also of no use for reason stated in para (i ) above. (iv ) reliance by ld. Sr. D.R. on decision in case of Commercial Motors Finance Ltd. v. Asstt. CIT [2002] 82 ITD 176 (Lucknow) is also of no help to revenue because in present case, assessee did not acquiesce mandatory requirement of service of notice under section 148. (v ) decisions in cases of R.K. Upadhyaya v. Shanabhai P. Patel [1987] 166 ITR 163 (SC), CIT v. Major Tikka Khuswant Singh [1995] 212 ITR 650 (SC) and CIT v. Sheo Kumari Devi [1986] 157 ITR 13 (Pat.) (FB) were relating to limitation, during which notice under section 148 could be issued as provided under section 149 of Act, but not with respect to service of said notice and therefore, reliance on these decisions is also of no help to revenue. (vi ) Revenue's reliance on decision in case of Birla Cotton Spg. & Wvg. Mills Ltd. v. ITO [1994] 209 ITR 434 (Raj.) is also not of any help to Revenue because in present case, assessee had not participated in proceedings and moreover, issue in that case was not with respect to validity of service of notice under section 148 of Act. (vii ) decision in case of CIT v. Bhanji Kanji's Shop [1968] 68 ITR 416 (Guj.) is also not of any help to revenue because in that case assessee had filed return in response to notice under section 148, whereas in instant case, assessee did not file any return. (viii ) decision in case of Mahendra Kumar Agrawala v. ITO [1976] 103 ITR 688 (Pat.) is also of no help to revenue because in that case service had been made on assessee's clerk whereas in present case, admittedly, notice under section 148 has not been served either on assessee or on his Authorized Representative. This decision is also of no help to revenue. (ix ) Revenue's reliance on decision in case of CIT v. Jai Prakash Singh [1996] 219 ITR 737 (SC) is also of no help to revenue because issue before Hon'ble Supreme Court was with respect to service of notice under section 143(2) if it existed prior to insertion of proviso, limiting period for service of such notices. At that time, issuance of notice under section 143(2) was considered to be procedural requirement and therefore, it was in context of that law that Supreme Court had held that omission to serve or any defect in service of notice provided by procedural previsions does not efface or erase liability to pay tax where such liability is created by distinct substantive provision (charging sections). Any such omission or defect may render order made irregular depending upon nature of provision not complied with but certainly not void or illegal. There is no dispute with regard to proposition of law as held by Hon'ble Supreme Court (supra), but so far as present case is concerned, issue being with respect to mandatory requirement of service of notice under section 148, we with respect, are of opinion that this decision is also of no help to Revenue. (ix ) (i ) Coming to reliance on decision in case of McDowell & Co. Ltd. v. CTO [1985] 154 ITR 148 (SC), we are again of opinion that for discussion, made hereunder, this decision is also of no help to revenue:- (ix ) (i ) (a) facts in case of McDowell & Co. Ltd. (supra) were that assessee was manufacturing and selling Indian liquor on wholesale and retail basis at Hyderabad. manufacturing and sales activities were regularized by Andhra Pradesh Excise Act, 1968, Andhra Pradesh Distillery Rules, Andhra Pradesh Indian Liquor (Storage in Bond) Rules and Andhra Pradesh Foreign Liquor and Indian Liquor Rules, all made under Andhra Pradesh Excise Act. (b) excise duty was leviable on manufacturing of liquor and manufacturer could not remove liquor so manufactured from distillery without paying excise duty on such liquor. (c) buyers of assessee's liquor were getting distillery passes for release of liquor after making payment of excise duty, which was not reflected in assessee's books of account. (d ) assessee paid Sales Tax under Andhra Pradesh Sales Tax Act on its turnover without including Excise Duty paid by purchasers. (e) Assessments were completed, but later on Taxing Authorities called upon assessee by way of show-cause notice, as to why Excise Duty paid by buyers/purchasers be not considered as part of assessee's turnover and assessments be re-opened. (f ) assessee challenged show-cause notice before Hon'ble High Court but failed. On appeal by assessee, Hon'ble Supreme Court as per decision dated 25-10-1996 in McDowell & Co. Ltd. v. CTO [1977] 39 STC 151 held as under:- 'We hold that intending purchasers of Indian Liquor who seek to obtain distillery passes are also legally responsible for payment of excise duty which is collected from them by authorities of excise department.' This Court then proceeded to determine whether excise duty paid directly to excise authorities or deposited directly in state Exchequer in respect of Indian Liquor by buyers before removing same from distillery could be said to form part of taxable turnover of appellant distillery. Precedents were referred to and court came to conclusion that excise duty did not go into common till of appellant and did not become part of circulating capital. Therefore, sales tax authorities were not competent to include in turnover of appellant, excise duty which was not charged by it, but was paid directly to excise authorities by buyers of liquor. appellant, therefore, succeeded before this Court and notices issued by sales tax authorities were quashed.' Thereafter rules 76 and 79 of Distillery Rules were amended with effect from 4-8-1981 and amended rules provide as under:- 'No spirit or liquor manufactured or stored shall be removed unless excise duty specified in rule 6 has been paid by holder of D-2 license before such removal.' It is not disputed that appellant is holder of D-2 licence, under law. Amended rule 79(1) provides: law. Amended rule 79(1) provides: '79(1). On payment of excise duty by holder of D-2 license, distillery pass for removal of spirit fit for human consumption may be granted in favour of any of following persons only, namely:- (a) person holding license in Andhra Pradesh or in other States for sale of spirit by wholesale or retail and when spirit is to be transported or exported beyond limits of district in which distillery is situated to person holding permit signed by Excise Superintendent of District of destination or officer of that district authorized in this behalf. (b) person hold permit signed by Officer of any other State referred to in clause (a) above for export of such spirit from Andhra Pradesh into that that. (c) person holding permit signed by Officer duly authorized in that behalf for export of such spirit to Union Territory. (d ) person hold permit from Excise Superintendent of any district in Andhra Pradesh or from Officer referred to in clause (a) above of any other State to transport or export rectified spirits or wine, to such district or State.' (ix ) (ii ) Sales-tax Authorities on basis of rules so amended issued notice to assessee for inclusion of Excise Duty since paid by purchasers in its turnover. (ix ) (iii ) assessee went before Hon'ble High Court for quashing of notice by way of writ but Hon'ble High Court after considering amended rules and also earlier decision, dismissed writ petition. (ix ) (iv ) On appeal by assessee, Hon'ble Supreme Court dismissed appeal and relevant part of order of Hon'ble Supreme Court reads as under:- 'We think that time has come for us to depart from Westminster Principle as emphatically as British courts have done and to dissociate ourselves from observations of Shah J. and similar observations made elsewhere. evil consequences of tax avoidance are manifold. First, there is substantial loss of much needed public revenue, particularly in welfare state like ours. Next, there is serious disturbance caused to economy of country by piling up of mountains of black money, directly causing inflation. Then there is 'the large hidden loss' to community (as pointed out by Master Sheatcroft in 18 Modern Law Review 209) by some of best brains in country being involved in perpetual war waged between tax-avoider and his expert team of advisers, lawyers and accountants on one side and tax gatherer and his perhaps not no skilful advisers on other side. Then again there is 'sense of injustice and inequality which tax avoidance arouses in breasts of those who are unwilling or unable to profit by it'. Last, but not least is ethics (to be precise, lack of it) of transferring burden of tax liability to shoulders of guideless, good citizens from those of 'artful dodgers'. It may, indeed, be difficult for lesser mortals to attain state of mind of Mr. Justice Holmes, who said, 'Taxes are what we pay for civilized society. I like to pay taxes. With them I buy civilization'. But, surely, it is high time for judiciary in India too to part its ways from principle of Westminster and alluring logic of tax avoidance. We now live in welfare State whose financial needs, if backed by law, have to be respected and met. We must recognize that there is behind taxation laws as much moral sanction as behind any other welfare legislation and it is presence to say that avoidance of taxation is not unethical and that it sands on no less moral plane than honest payment of taxation. In our view, proper way to construe taxing statute, while considering device to avoid tax, is not to ask whether provision should be construed literally or liberally, nor whether transaction is not unreal and not prohibited by State, but whether transaction is device to avoid tax, and whether transaction is such that judicial process may accord its approval to it. hint of this approach is to be found in judgment of Desai, J. in Wood-polymer Ltd., In re and Bengal Hotels Limited, In re (1977) 47 Comp. Cas. 597 (Guj.), where learned judge refused to accord sanction to amalgamation of companies as it would lead to avoidance of tax. It is neither fair nor desirable to expect Legislature to intervene and take care of every device and scheme to avoid taxation. It is up to court to take stock to determine nature of new and sophisticated legal devices to avoid tax and consider whether situation created by devices could be related to existing legislation with aid of 'emerging' techniques of interpretation as was done in Ramsay, Burma Oil and Dawson, to expose devices for what they really are and to refuse to give judicial benediction.' 12.2 After having carefully considered decision of Hon'ble Supreme Court in case of McDowell & Co. Ltd. (supra) word by word, sentence by sentence and para by para, we are of opinion that so far as proposition of law laid down by Hon'ble Supreme Court is concerned, there is no dispute, but so far as observations of Hon'ble Supreme Court, which have been relied upon by ld. D.R. in present case, are concerned, we, with all respect to Hon'ble Apex Court, are of opinion that there cannot be any conflict with proposition of law propounded by Hon'ble Apex Court, but while applying same, care has to be taken with respect to facts and context, in which, law has been propounded and so far as case of McDowell & Co. Ltd. (supra) is concerned, law was propounded with respect to theory of 'Tax Planning'. In other words, law was propounded with respect to issue as to which tax planning comes within ambit of 'tax avoidance' and which comes within ambit of 'tax evasion'. This was in facts and in context of above theories that Hon'ble Supreme Court came to conclusion that while construing provisions of law while considering device to avoid tax is not to ask whether provisions should be construed literally or liberally nor whether transaction is not unreal and not prohibited by statute, but whether transaction is device to avoid tax and whether transaction is such that judicial process may accord its approval to it. 12.3 So far as present case before us is concerned, issue involved is neither of tax planning nor of aspect as to how provisions be construed or what is nature of transaction or whether transaction will result any avoidance of payment of tax or any evasion of payment of tax. issue before us is with respect to subject's (assessee's) right to challenge action of quasi-judicial authority, which is claimed by such authority to be in accordance with provisions of law. right to challenge action of quasi-judicial authority, so far as Income-tax Act is concerned, and specially, validity of authority, so far as Income-tax Act is concerned, and specially, validity of service of notice under section 148 is concerned, same having been given by statute itself, observations referred to and relied upon by ld. Sr. D.R. [from order of Hon'ble S.C. in case of McDowell & Co. Ltd. (supra)] in our opinion, are of no help to Revenue. In other words, Tribunal cannot, and should not, while considering subject's (assessee's) objection that notice under section 148 was not validly served as per law, go for researching or digging out intention of subject (assessee) while availing statutory right to challenge action of quasi-judicial authority. Whether objection raised by subject (assessee) results in 'avoidance of tax' or not, is not at all relevant. 12.4 In view of above discussion, we are of opinion that reliance of ld. Sr. D.R. on decision in case of McDowell & Co. Ltd. (supra) is also of no help. 13. Similarly, reliance of ld. Sr. D.R. on decision in case of Simplex Enterprises v. Union of India [2002] 257 ITR 689 (Bom.), decision of Hon'ble Allahabad High Court, in case of Dr. O.P. Agarwal v. CIT [2002] 123 TAXMAN 539 decision in case of CIT v. Rayala Corpn. (P.) Ltd. [1995] 215 ITR 883 (Mad.), decision in case of Estate of Late Rangalal Jajodia v. CIT [1971] 79 ITR 505 (SC), decision in case of A.K.M. Govindaswamy Chettiar v. ITO [2000] 244 ITR 559 (Mad.), decision in case of Himmatram v. CIT 5 ITC 133, decision in case of Rex v. Ismail 1 ITC 192, decision in case of Mithoo Lal Tek Chand v. CIT [1967] 64 ITR 377 (All.) and decision in case of Kangi v. CIT 3 ITC 418, are of no help to revenue because issues and context involved in all these decisions were different than issue involved in appeal before us - meaning thereby that these decisions are distinguishable on facts as well as in law and therefore, are of no help to Revenue. 14. last decision, relied on by Revenue in support of their claim that service of notice under section 148 for assessment year 1988-89 on Shri M.K. Tyagi, Chartered Accountant, who admittedly had not been authorized by assessee to act on behalf of assessee or to deal with assessee's income-tax matters relating to assessment year 1988-89, was valid service, is decision of ITAT, Agra in case of Chandra Bhan Bansal v. Dy. CIT [2001] 79 ITD 639 (Agra) and therefore, we consider it necessary to discuss this decision. 15. From decision, it is revealed that issue for decision of Hon'ble Tribunal was validity of service of notice under section 148 of Act for assessment year 1988-89 having been effect on assessee's adult son. During course of appellate proceedings, assessee is stated to have relied upon various decisions including decision of Hon'ble Supreme Court in case of CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147 and decision of Hon'ble Jurisdictional High Court of Allahabad in case of Madan Lal Agarwal v. CIT [1983] 144 ITR 745. Hon'ble Tribunal, though referred to assessee's reliance on decision in case of Madan Lal Agarwal v. CIT [1983] 144 ITR 745 (All.), but while considering various decisions omitted to discuss this decision, as is evident from para Nos. 2.4 to 2.9, wherein Hon'ble Tribunal has discussed various other decision and it, in our opinion, was rightly so because in decision of Hon'ble Allahabad High Court in case of Madan Lal Agarwal (supra), question of service on assessee's elder son was not involved and also due to fact that as per provisions of section 282 of Income-tax Act and provisions of order No. V Rule No. . . . of Civil Procedure Code, service of mandatory notice on adult person of family is valid service. [Emphasis supplied] 16. After careful consideration of facts and decision in case of Chandra Bhan Bansal (supra), we are of opinion that this decision was rightly given by Hon'ble ITAT and has no application to facts and circumstances of present case. So far as observations of CIT(A) that ITAT had considered decision of Allahabad High Court in case of Madan Lal Agarwal (supra), we are unable to approve observations because as already discussed, Hon'ble ITAT has, though of course, mentioned this decision as having been relied upon by assessee, but has nowhere discussed applicability of this decision, meaning thereby that Hon'ble Tribunal in case of Chandra Bhan Bansal (supra) , having not discussed or distinguished decision in case of Madan Lal Agarwal (supra), cannot be said that decision of Allahabad High Court, which is binding, in case of Madan Lal Agarwal (supra) is not applicable to case of assessee Madan Lal Agarwal (supra) is not applicable to case of assessee presently in appeal before us. 17. Coming to assessee's reliance on various decisions, including decision of Hon'ble Allahabad High Court in cases of Madan Lal Agarwal v. CIT [1983] 144 ITR 745, Addl. CIT v. Prem Kumar Rastogi [1980] 124 ITR 381, CIT v. Jagannath Pd. Nankoo Pd. [1996] 222 ITR 58 (All.), in case of Laxmi Narain Anand Prakash v. CST [1980] UPTC 125 (All.) (FB) and various other decisions of Hon'ble Supreme Court as well as other High Courts, we would like, even for sake of repetition; to discuss, at least, decisions of Hon'ble High Court of Allahabad as under:- (i ) Decision of Addl. CIT v. Prem Kumar Rastogi [1980] 124 ITR 381 (All.): (a) In this case, Hon'ble High Court has held that; 'The fact that in past notices used to be served on R and assessee never took any objection that services of notices on R were improper and invalid shall not make R authorized or recognized agent of assessee. On findings, R was neither recognized nor authorized agent, nor agent who was carrying business of assessee. He was not adult member of assessee family. Delivery of notice to R was not valid according to provisions of CPC. That delivery of notice on R was not valid service.' (b) aforesaid decision refutes stand of Revenue that Shri M.K. Tyagi, Chartered Accountant had been appearing in assessee's case as well as in firm's case, where assessee was partner in past and supports assessee's objection that service on Shri M.K. Tyagi, who had not been authorized by assessee to deal with Income-tax matters of assessee relating to assessment year 1988-89, was not valid service. (ii ) Laxmi Narain Anand Prakash v. CST [1980] UTPC 125 (All.) (FB): (a) In this case, Hon'ble High Court was to consider scope of service of notice on stranger and it was, after considering issue, held that: 'Service of notice for purpose of initiating proceedings under section 21 is not mere procedural requirement, but is condition precedent. If not notice is issued or notice is shown to be invalid or not notice has been served on dealer, proceedings and consequential order under section 21 will be illegal and void irrespective of fact that party gets knowledge of proceedings under section 21.' (b) So far as aforesaid decision is concerned, we are of opinion that section 21 of U.P. Sales Tax Act being in pari materia with provisions of section 147/148 of Income-tax Act and also fact that requirement of service of notice under section 148 on assessee has been held to be mandatory in nature, assessee's case is fully covered in his favour by this decision. (iii ) Decision in case of CIT v. Jagannath Pd. Nankoo Pd. [1996] 222 ITR 58 (All.): (a) In this case, Hon'ble High Court while discussing validity of service of notice under section 148 of Act, has held as under:- 'We have heard Shri Shekhar Srivastava, for Department, and Shri Vikram Gulati, for assessee. relevant assessment year is 1962-63 in which income assessed by Income-tax Officer was Rs. 83,700 but it was ultimately reduced to Rs. 54,111 by Tribunal. Proceedings under section 148 were initiated and reassessment order was passed and penalty imposed. appeal of assessee before Appellate Assistant Commissioner failed, but in further appeal, Tribunal held that there was no valid notice under section 148 served on assessee and condition precedent for issuing notice under section 142(1) was lacking. These are findings of fact and hence, we cannot in advisory jurisdiction that we may also refer to decision of this Court in case of Addl. CIT v. Shri Prem Kumar Rastogi [1980] 124 ITR 381, where it has been held that notice on unauthorized person is not valid.' (b) In view of above decision of Hon'ble Allahabad High Court, we have no hesitation to hold that issue involved in present case is squarely covered in assessee's favour and against Revenue - meaning thereby that service of notice under section 148 for assessment year 1988-89 on Shri M.K. Tyagi, Chartered Accountant, who admittedly had not been authorized by assessee to deal with assessee's income-tax matters for assessment year 1988-89, was not valid service in eyes of law. (iv ) Madan Lal Agarwal v. CIT [1983] 144 ITR 745 (All.): (a) In this case Hon'ble High Court has held as under:- 'Issuing of valid notice to assessee under section 148 within period specified under section 149 of Act is condition precedent to validity of any assessment to be made against such assessee under section 147. Accordingly, where no such notice has been issued or if notice issued is not valid or same has not been served on assessee in accordance with law, it will not be possible to sustain eventual assessment made under section 147 on basis of such notice.' (b) This decision is fully applicable to present case because service of notice under section 148 for assessment year 1988-89 in assessee's case has been held to be invalid and bad in law. 18. Respectfully following aforesaid decisions, and in view of above facts and circumstances, we are of opinion that notice under section 148 of Act for assessment year 1988-89 in assessee's case was not validly served and therefore, Assessing Officer could not have valid/legal jurisdiction to proceed with subsequent assessment proceedings. 19.1 Having held service of notice under section 148 of Act dated 15-9-1998 made on unauthorized person, namely Mr. M.K. Tyagi, Chartered Accountant, as invalid and bad in law, next question for our decision is as to whether subsequent proceedings including assessment under section 144/148 dated 26-3-2001 were illegal in eyes of law or were legal. 19.2 After careful consideration of provisions of section 148 of Act, which prescribes service of valid notice under section 148 on assessee before making assessment, reassessment or recomputation under section 147 of Act, we are of opinion that valid service of valid notice under section 148 of Act, is not mere procedural requirement, but is condition section 148 of Act, is not mere procedural requirement, but is condition precedent to validity of any assessment, reassessment or recomputation to be made under section 147 of Act and it is so because of use of words 'shall serve on assessee' and also requirement to effect 'before making assessment, reassessment or recomputation under section 147' in section itself-meaning thereby that if no notice under section 148 is issued or if notice so issued is shown to be invalid, or service of notice so issued, is shown to be invalid, Assessing Officer cannot proceed with subsequent proceedings for making assessment, reassessment or recomputation under section 147 of Act. In other words, if Assessing Officer, in such circumstances, proceeds with subsequent proceedings, same will be illegal and void. This proposition of law has been held by Hon'ble Supreme Court in cases of Y. Narayana Chetty v. ITO [1959] 35 ITR 388, 392 (SC), CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147 (SC), in case of CIT v. Kurban Hussain Ibrahimji Mithiborwala [1971] 82 ITR 821 (SC), Madan Lal Agarwal v. CIT [1983] 144 ITR 745 (All.), Vijay Kumar Jain v. CIT [1975] 99 ITR 349, 353 (Punj. & Har.), CIT v. Ishwar Singh & Sons [1981] 131 ITR 480 (All.) and many more. 19.3 Under aforesaid provisions of section 148 of Act, it is not enough that notice issued under section 148 some how finds its way to proper assessee or that proper assessee appeared and filed objection to proceedings. Unless, notice is served on proper person in manner prescribed under section 282, service is insufficient and Assessing Officer does not have jurisdiction to re-assess escaped income. This proposition of law is supported by decisions of Madras High Court in case of Thangam Textiles v. First ITO [1973] 90 ITR 412 by decision of Mysore High Court in cases of Lakshmibai v. ITO [1972] 86 ITR 804 and C.T. Rajagopal v. State of Mysore [1972] 86 ITR 814 and by decision of Bombay High Court in case of S.K. Manekia v. CST [1977] 39 STC 426 (Bom.) and in case of CST v. Shrimal Sakharchand [1984] 57 STC 224, 235 (Bom.). 20. Respectfully following various decisions referred to in aforesaid para, we, after having held service of notice under section 148 on Shri M.K. Tyagi, Chartered Accountant as invalid in eyes of law, are further of opinion that all subsequent proceedings including ex parte assessment framed on 26-3-2001 in assessee's case were illegal and void ab initio . 21. In result, appeal of assessee is allowed. *** RAJEEV KUMAR DONERIA v. ASSISTANT COMMISSIONER OF INCOME TAX