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TMI Blog1965 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... sums during the period April 29, 1949, to October 19, 1949, totalling Rs. 62,500. Accordingly, he issued a notice under section 34 of the Indian Income-tax Act, 1922, and included that amount in the assessment of the assessee on the ground that it was part of the profit which had accrued to the assessee outside the taxable territories and had been brought into the taxable territories during the relevant previous year. The assessee appealed to the Appellate Assistant Commissioner and, upon the appeal being dismissed, carried the case in second appeal to the Income-tax Appellate Tribunal. It was contended before the Appellate Tribunal that the assessment was without jurisdiction because the Income-tax Officer, at the time when he made the original assessment against the assessee, was already in Possession of information upon which be could have subjected the sum of Rs. 62,500 to tax and that no fresh information had come into his possession entitling him to proceed to reopen the assessment under section 34. The second contention was that the notice was served beyond the period of four years envisaged by section 34(1)(b) and was, therefore, barred by limitation. The Income-tax Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressly said in his assessment order, although he seems to have had in mind also that the remittances amounting to Rs. 62,500 had escaped assessment because of the assessee's failure to disclose them at the time of its original assessment. At the time when the Income-tax Officer initiated the proceeding by the issue of the notice under section 34(1), he had not stated in that notice whether he was proceeding with reference to clause (a) or clause (b). He was not required by the statute to record such decision in the notice. The question whether the case falls under clause (a) or under clause (b) arises when the period of limitation is considered. If the case falls under clause (b) and the period of limitation of four years has expired the Income-tax Officer will refrain from serving the notice. If, however, the case falls under clause (a), and the period of four years has expired be may yet serve the notice. The Appellate Tribunal held that the notice by affixation had been served within four years, and therefore must be considered to have held that the assessment was not barred by limitation. But it also held that the provision truly applicable upon the facts of the ease was claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Income-tax Officer, because it was for him to have reason to believe that either on account of the default of the assessee a part of the income had escaped assessment or although there was no such default he has come to that belief because of information which has come into his possession. It is said that the Appellate Tribunal could not usurp the function of the Income-tax Officer and consider itself whether there was reason to believe that income had escaped assessment because of the default of the assessee. All these are questions which have not been referred to us expressly or impliedly and, therefore, we decline to express any opinion upon them. We shall now turn to the second question, namely, whether the service of the notice under section 34 by affixture on the residential house of the assesseeis valid. According to the facts set out in the statement of the case, the Income-tax Officer issued a notice under section 34 to the assessee on March 19, 1955. The process-server took the notice to the business premises of the partnership firm on March 23, 1955, but as Johri Lal, karta of the assessee, was not available, he proceeded to the residential house of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by affixing a copy thereof in some conspicuous place in the court-house, an a so upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. Service by this mode is as effectual as if it had been made on the defendant personally. Now, it seems to us, that if substituted service is resorted to, all the conditions mentioned in the procedure set out in Order 5, rule 20, must be fulfilled. The Code has specifically spoken of it as "substituted service". It is not service in the ordinary sense of the word. It is service in an artificial sense proceeding upon a fiction imported by necessity. A special mode of procedure has been prescribed, and it is incumbent for the purpose of effecting such service that the entire procedure specifically mentioned in the rule should receive full compliance. When an Income-tax Officer resorts to Order 5, rule 20, not only is it necessary that a copy of the notice should be affixed upon some conspicuous part of the house in which the assessee is known to have last resided or carried on business or personally wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be alternative must be service other than by mere affixture at the court-house and at the residence. Mere affixture at one place or both is not the alternative service contemplated by Rule 20. The mode of service must be different. The relevant provision uses the word " manner ". Doing less than what is laid down in the earlier provision cannot be said to be service in another manner because that would render the earlier provision meaningless. Doing less than what is prescribed cannot be said to be an alternative to doing the prescribed thing. Hence, affixture of the copy of the notice at the residential house cannot be justified as service " in such other manner " within the meaning of Rule 20. Accordingly, service by affixture of the notice under section 34 on the residential house of the assessee was not in accordance with law, and we answer the second question in the negative. What the Income-tax Officer could be said to have done was to direct service by affixture and registered post. The combined mode would be a manner different from the mode mentioned in the earlier provision of Order 5, rule 20, and could be said to fall within the scope of the alternative provision ..... 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