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TMI Blog1958 (4) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... the re-opening of the assessment under section 34(1)(a). If it does, then the service by post is, admittedly, too late. In such a case, the re-assessment can only be supported if there has been a valid service on the 28th March, 1957. On or about the 29th July, 1957, notice was issued under section 28(3) of the Act. On the 30th July, 1957, there was an ex parte assessment, because the petitioner did not comply with the notice purported to have been served upon him, and in this re-assessment, his total income was assessed at a very much higher figure than before. It is alleged that a sum of ₹ 53,987 was added to his income, although the petitioner states that the said amount was not his income but the income of his wife Sm. Banaresi Devi. On the 8th August, 1957, the petitioner wrote a letter asking for the date of service of the notice under section 22(2), read with section 34. On the 14th August, 1957, there was a reminder. It was pointed out that the assessment of the year 1948-1949 under section 34(1)(a) was time-barred. On the same date, notice was served upon the petitioner under section 29 of the Act, asking for payment of ₹ 29,595. 94 nP., and it was intimated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit has been filed by the serving officer, Haridas Chatterji, Income-tax Inspector, affirmed on the 28th March, 1957. He took a notice under section 34(1)(a) of the Income-tax Act for the assessment year 1948-49 addressed to the petitioner at No. 8 Middleton Street, Calcutta. He went there at about 3 p.m. on the 28th March, 1957, and personally met the petitioner and served the notice upon him. The petitioner instructed one Sri Bengani (whose correct name is Jhumarmall Bengani) one of his clerks, to sign the acknowledgment slip. The acknowledgment slip is a printed slip. It is known as I.T. 57. It is called a Tear-of Acknowledgment slip . A specimen thereof has been filed as an exhibit, being included in exhibit 1. The inspector came back to the office and handed over this acknowledgment slip to the personal clerk of the Income-tax Officer, Companies District IV, Calcutta, on the same date. There are two documentary records which corroborate this testimony. The first is the Inspector's own entry in his personal diary. Mr. Gupta called to see the diary which has been produced and a copy of the entry has been exhibited, being Exhibit 2. The second supporting evidence is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact the petitioner was served in the manner stated in the affidavit of Haridas Chatterji on the 28th March, 1957, with the notice under section 34 of the Income-tax Act. That being so, I have only to deal with the comment of Mr. Gupta as to why the subsequent correspondence was not being answered in time. The Income-tax authorities should have been more diligent in answering the correspondence, and I do not say that the petitioner has not some legitimate grievance on this score. However, the delay is not such as would support a case of concoction of evidence. Since I have held that the petitioner was served on the 28th March, 1957, within the period of limitation, it is scarcely necessary to deal with the other question, but since that point has been raised, I have to deal with it. The point is as follows: Under section 34 as it stood before the Finance Act of 1956, it was incumbent on the Income-tax Officer, in cases falling under clause (a) of sub-section (1) of section 34, at any time within 8 years to serve on the assessee etc., a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22 and he may pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in the language in which the Legislature has enacted it is to deal with cases where after the issue of the notice the assessee seeks to evade service. Now, if the Legislature wanted to deal with such a contingency, the proper place to deal with it would have been in section 34(1) itself. But we cannot possibly construe a proviso to sub-section (3) as in effect and in substance curtailing the rights of the assessee to have the notice served within the time mentioned in section 34(1), because if we were to accept the Advocate-General's contention, this must be the result, that after the Legislature has clearly provided that the assessee was entitled to have the notice served upon him within the period of eight years mentioned in section 34(1), in order that there should be a valid assessment under section 34 the Legislature proceeded under section 34(3) to take away that right and provided for the notice being issued within eight years and not necessarily served within eight years. The learned Chief Justice held that in spite of the proviso it must be held that notice must be both issued and served within eight years. Now, if the position in law remained the same, then ..... X X X X Extracts X X X X X X X X Extracts X X X X
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