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TMI Blog1964 (7) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... such enquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or canceling the assessment and diraecting a fresh assessment. Since the section requires that the assessee is to be given a reasonable opportunity of being heard, the respondent-Commissioner issued the following notice to the petitioner: 1. On calling for and examining the records of your case for the assessment years 1953-54, I954-55, 1955-56, 1956-57. 1957-58, 1958-59. 1959-60, 1960-61 and 1961-62 and other connected records, I consider that the order of assessment passed by the Income-tax Officer, 'B' Ward, District 24-Parganas, on June 14, 1961, are erroneous in so far as they are prejudicial to the interests of the revenue for the following reasons amongst others. 2. Enquiries made have revealed that you neither resided nor carried on any business from the address declared in the returns. Also the Income- tax Officer was not justified in accepting the initial capital, the income from business, etc., without any enquiry or evidence whatsoever. 3.I, therefore, propose to pass such orders thereon as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed in my case by the Income-tax Officer, 'B' Ward, 24-Parganas, are erroneous in so far as they are prejudicial to the interests of the revenue and have alleged that I neither resided nor carried on any business from the address declared in the returns meaning thereby Basirhat in 24-Parganas. While I do not understand as to how the assessments, made in my case by the Income-tax Officer concerned, are regarded by you as erroneous, nobody can dispute the fact of my having resided and carried on business as declared before the Income-tax Officer. But in the short time allowed by you it is not physically possible to produce the necessary evidence afresh before you on May 9, 1963. Moreover, I am held up here on account of my having had a very troublesome delivery followed by profuse bleeding which has not yet stopped. The doctors are advising a major operation and at the moment are watching for an opportune time for my health to improve. Nobody will advise me or my husband a movement from here. Medical certificates have already been enclosed in a similar petition addressed to you by my husband in reference to your notice No. J. 3539 C.T. Rev. 165-173/33B/WB/63664 dated M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the unreasonable shortness of the notice, the order of revision deserves to be quashed. Mr. Sabyasachi Mukherjee, learned advocate for the respondent, tried to get rid of this difficulty with the argument that the Commissioner was bound to send the notice to the address disclosed by the petitioner in her statutory returns, namely, Basirhat address. Since a copy of the notice was served at the Basirhat address by affixation, under the procedure as in Order 5, rule 17, of the Code of Civil Procedure, on May 3, 1963, the petitioner must be deemed to have been given reasonable opportunity of showing cause against the proposal for revision. In my opinion, Mr. Mukherjee is right in his contention in so far as he states that the initial duty of the Commissioner of Income-tax is to try to serve an assessee at the address disclosed by him or her in the returns, because that is the admitted address of the assessee. There is no duty cast upon the Commissioner to pursue an assessee, wherever he or she may be, for service of notice, excepting in so far as the rules for service of notice require. But even then, the notice must be served according to law at the admitted address. Merely by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. Explaining the scope and effect of the above-mentioned rules in Gopiram Agarwalla v. First Additional Income-tax Officer [1959] 37 ITR 493 ,498-99, Das Gupta C.J. (Bachawat J. agreeing with him) observed as follows: The first requisite that has to be established before such service can be held to be valid service in accordance with law is that the defendant could not be found. The mere fact that the serving officer went to the address and found him absent from that address is not sufficient to establish the requirement that the defendant could not be found. It was pointed out in Sakharam v. Padmakar [1906] ILR 30 Bom 623 that if a serving officer goes to a d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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