9911796707
TMI Blog1998 (8) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax, Central Circle-I, Calcutta, passed orders under section 147 of the Income-tax Act on March 8, 1990. By invoking his power of reassessment under the said section 147 of the Income-tax Act, he assessed the total income of the appellant at Rs. 12 lakhs on estimate and also initiated penalty proceedings under sections 271(1)(b), 271(1)(c) and 273(2)(a) of the Act. It was mentioned in this assessment order that a notice under section 148 of the Act was served on the assessee by affixation. Since, however, no return in compliance with the said notice served by affixation was filed, a notice under section 142(1) of the Act was sent to the assessee by registered post which came back unserved. Subsequently, the notice was served by affixation again. Since the assessee did not comply with the notice served upon him by affixation, the proceedings under section 147 were completed in the absence of the assessee and, as observed above, the income was computed at Rs. 12 lakhs on estimate. It appears that respondent No. 1, Commissioner of Income-tax, Central Circle-II, Calcutta, invoked his jurisdiction under section 263 of the Income-tax Act and issued notices on February 21, 1992, up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service of a proper notice upon the appellant, such order was bad and accordingly proceedings under section 263 of the Act emanating and originating from such an order were also bad. Three modes of service, additionally or alternatively to one another were taken notice of by the learned single judge about the notice preceding the passing of the order under section 147. The first mode was the attempt through personal service. The notice was stated to have been tendered to the appellant on October 1, 1987. This mode of service was not accepted by the learned single judge since the notice was not actually served upon the appellants but was deemed to have been served only because of the alleged refusal on the part of the appellant to accept the notice. The learned single judge was of the view that since particulars of the person who allegedly refused to accept the service or the date and place of receiving the notice, etc., etc., were not indicated in the endorsement regarding the refusal, service by this mode was not properly effected. The second mode of service (not mentioned in this order in the judgment under appeal) was by affixation at the residence of the appellant. This mode ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to retain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective equitable and practical interpretation and that would be to read the word 'served' as 'sent by post', correctly and properly addressed to the tenant and the word 'receipt' as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant." The learned single judge, relying upon the aforesaid observations of the apex court appears to have made the following observations purportedly as the basis for holding that the registered covers were deemed to have been served upon the appellant : "Although the envelope may not contain the word 'left' or 'not claimed' (although there is an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within such further time as the appellate court may see fit to allow." Proceedings in a writ application filed under article 226 of the Constitution and an appeal arising therefrom under clause 15 of the Letters Patent strictly would not be civil proceedings in the sense that technically they are not governed by the provisions of the Code of Civil Procedure, yet they being in the nature of civil proceedings, the principles contained in Order 41, rule 22 of the Civil Procedure Code, should apply in all Letters Patent appeals. After all a respondent who was partly successful in the writ proceedings should clearly decide whether to appeal against the unsuccessful part of the judgment of the learned single judge or to agitate in the appeal court the finding which may go against him. Such a partly successful respondent, therefore, can prefer its own appeal against that part of the judgment which goes against it or may, in the appeal of the writ petitioner decide to file cross-objection(s) in respect of the findings which have gone against him. If he does neither, it is still open to him to take recourse to the provision contained in rule 22(1) of Order 41, Civil Procedure Code, and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of rule 22(1) is not permissible. We, therefore, did not permit Mr. Prasad to challenge these two findings under rule 22(1). These two findings, therefore, in our view, have assumed finality and cannot be upset or disturbed by us in this appeal. This now takes us to the issue raised by Mr. Pal in the appellant's appeal with regard to the finding by the learned single judge that the notice was deemed to have been served by registered post, even though the proof of its contents was required to be adduced. We have seen the original records produced before us by the respondents. We found that in the registered cover (envelope) stated to have been sent to the appellant, there was no endorsement of either refusal of service or even return of the envelope to the sender. The only endorsement which we found on the registered cover was "redirect to Labr." "LB" perhaps stands for "P. O. Labpur" in District-Birbhum. We have very carefully looked at every possible nook and corner of the registered cover (envelope) but failed to find any endorsement which could have directly or indirectly amounted to indicate any refusal on the part of the appellant or even the fact that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion may be reproduced with advantage to prove this point : "I state further that as regular service of the notice was not possible the same was served by the Inspector of this Department by affixation and this was a valid service in the facts and circumstances of the case. This last mode of service is also a well recognised service at law." The following may also be reproduced with advantage : "Notices under section 148 for the assessment years 1983-84 to 198687 were issued on September 22, 1987, but these could not be served by the N. S. as the petitioner allegedly refused to receive the same. Thereafter the notices were issued by the Inspector and duly served by affixation December 23, 1987. Notice of hearing for the above assessment year were also served by the petitioner on January 17, 1990, by the Inspector by affixation as regular service was not possible." Going much before the filing of the affidavit-in-opposition, at the very threshold of the controversy, in the recital to the order dated March 8, 1990, passed under section 147 of the Act even the Assessing Officer was clearly aware that the attempt to serve by registered post did not succeed and materialise and, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent was unable to show any averments in the affidavit filed on behalf of the respondent where such a ground might have been raised. The respondent, in that affidavit, clearly understood that the notice issued by the appellant was under clause (a) of sub-section (1) of section 34 of the Act, and yet, confined the challenge to the ground that the appellant had no reasons whatever to believe that the income of the respondent had escaped assessment or had been underassessed. It was at no stage stated that the appellant had no reason to believe that the escape of income from assessment, or the underassessment of income, was the result of any failure or omission on the part of the assessee to make a return, or to disclose fully and truly all material facts necessary for his assessment, Since there were no such averments in the petition or the affidavit in support of it, the appellant also did not, in the counter-affidavits, make any specific averment that he had reasons to believe that the escapement or under assessment of income was occasioned by the failure or omission on the part of the respondent to make the return, or to disclose fully and truly all necessary material facts. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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