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TMI Blog1971 (11) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... . JUDGMENT The judgment of the court was delivered by H. SWARUP J.- The question referred to us under section 66(1) of the income-tax Act by the Income-tax Appellate Tribunal is : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the service of notice under section 22(2) of the Indian Income-tax Act, 1922, was invalid in law ? " A notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Procedure Code, inasmuch as the summons returned under rule 17 had not been verified by an affidavit of the serving officer and the serving officer had not been examined on oath by the Income-tax Officer. On this finding the Tribunal held that the service of the notice under section 22(2) was invalid and upheld the annulment of the assessment. Learned counsel for the Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order as no such question has been referred to us. Hance it is also not open to us to go into the question about the effect of the appearance of the assessee before the Income-tax Officer in compliance of the notice under section 22(4) of the Income-tax Act. Although the assessee had contended before the Tribunal that there was non-compliance of rule 20 of Order 5, Civil Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the service of the notice we have to see if the provisions of rule 19 of Order 5, Civil Procedure Code, are mandatory. This rule uses both the words " shall " and " may ". In cases where the return under rule 17 is not verified by an affidavit of the serving officer, the rule says that the court shall examine the serving officer on oath. It is only where the affidavit of the serving officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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