1965 (12) TMI 16 - HC - Income Tax

Service of a notice u/s. 34 - Section 33B does not require a notice to be issued and served on an assessee, as is required by s. 34 of the Act. All that s. 33B requires is that the assessee should be given an opportunity of being heard

Issues Involved:
1. Reasonable opportunity of being heard.
2. Validity of service of notice.
3. Jurisdiction under section 33B of the Income-tax Act, 1922.
4. Alternative remedy under the Income-tax Act.
5. Repeal of section 33B and its implications.

Detailed Analysis:

1. Reasonable Opportunity of Being Heard:
The primary issue in this appeal was whether the respondent was given a reasonable opportunity of being heard as required under section 33B of the Income-tax Act, 1922. The respondent received a notice on May 8, 1963, for a hearing scheduled on May 9, 1963. The respondent contended that the short notice period made it impossible to produce the necessary evidence and requested additional time, which was denied. The court examined whether the service of the notice provided sufficient time for the respondent to prepare for the hearing.

2. Validity of Service of Notice:
The appellant argued that the notice was served in accordance with the law, citing sections 63 of the Income-tax Act, 1922, and section 282 of the Income-tax Act, 1961. Notices were sent to both the Basirhat address and 20 Mullick Street, Calcutta, by registered post and affixing copies. The service by affixing was challenged by the respondent, who argued that the serving officer did not use due and reasonable diligence as required by Order V, rule 17 of the Code of Civil Procedure. The court considered the Calcutta amendment to rule 17, which allows service by affixing if the defendant is absent and there is no likelihood of finding them within a reasonable time. The court held that the service of the notice by affixing at both addresses was valid under the amended rule.

3. Jurisdiction Under Section 33B of the Income-tax Act, 1922:
The respondent argued that the appellant had acted without jurisdiction as section 33B was repealed on April 1, 1962. The court noted that this point was not pressed before them as it was covered by a previous judgment (Kalawati Devi Harlalka v. Commissioner of Income-tax). The court emphasized that section 33B does not require a statutory notice like section 34; it only requires that the assessee be given an opportunity of being heard.

4. Alternative Remedy Under the Income-tax Act:
The appellant contended that the Income-tax Act provides a complete machinery for assessment and relief, and the respondent should have pursued the alternative remedy of appealing to the Tribunal under section 33B(3). The court agreed, citing Supreme Court decisions that emphasize the importance of exhausting alternative remedies before invoking the special jurisdiction of the High Court under article 226 of the Constitution. The court held that the respondent had an adequate alternative remedy and should have pursued it.

5. Repeal of Section 33B and Its Implications:
The respondent initially contended that section 33B was repealed, making the proceedings under it invalid. However, this point was not pressed before the court, as it was covered by a previous judgment. The court did not address this issue in detail, focusing instead on the other grounds of appeal.

Conclusion:
The court allowed the appeal, setting aside the judgment and order of the trial court. The rule was discharged, and the respondent was ordered to pay the costs of the appellants. The court emphasized that the service of the notice was valid under the Calcutta amendment to rule 17 of Order V of the Code of Civil Procedure, and the respondent had an adequate alternative remedy under the Income-tax Act. The appeal was allowed, and the judgment and order of Banerjee J. dated July 8, 1964, were set aside.

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