9911796707
TMI Blog1976 (3) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the petitioner was served with notices under section 148 of the Income Tax Act, 1961. The service of notice under section 148 is mandatory and is a condition precedent for the initiation of the re-assessment proceeding. The said service in view of the provisions of section 282 of the Income Tax Act, 1961 must be made as if it was a summons issued by a Court under the Code of Civil Procedure. Under Order 5, Rule 17 of the Code in order to be a valid service by affixation on the ground that the person to be served was not available, it must be shown that reasonable and diligent efforts had been made to find the person at the place where he was likely to be available. My attention was drawn to the Calcutta Amendment of Order 5, Rule 17 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o as his address for residence. It further appears that in the estimate for advance tax filed on the 17th of March, 1972 the petitioner indicated his address as No. 29 A. Sri Hariram Goenka Street, Calcutta. It appears that on a previous occasion by a letter dated the 10th of November, 1972 the petitioner had informed the Income Tax Department that he had changed his place of business from 12 A, Netaji Subhas Road, Calcutta, to 5, Clive Row, 9th Floor, Calcutta but in the return filed during the intervening period on the 31st July, 1972 he showed his address at 29 A, Hariram Goenka Street. A letter was received by the Income Tax Department on the 16th of March which was dated nil where in the petitioner sought to inform the Income Tax Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al) : 86 I.T.R. 611; C.I.T., W.B. & Ors. vs. Kiron Debi Singhee, 70 C.W.N. 414 and Gopiram Agarwalla vs . First Additional I.T.O. & Ors., [1959]37ITR493(Cal) : 37 I.T.R. 493. 3. Therefore it appears that the service of the notice is mandatory and the said service must be in accordance with the procedure enjoined by the Code of Civil Procedure either under Order 5, Rule 17 or under Order 5, Rule 20. The service can therefore be only after reasonable and diligent attempts had been made to find the person concerned. What is reasonable and diligent, however, depends upon the facts and circumstances of each case and whether a particular case the revenue has been able to establish that there has been proper service or not in an application under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was received the Income Tax Department on the 16th of March, 1972 was brought to the notice of the Income Tax Officer concerned and he directed his office to serve another notice at the Netaji Subhas Road address. The said notice was served on the 28th of March, 1972 and the return of the process server indicates as follows :- "That on 28-3-1972 I received notice under section 148 dated 28-3-72 for the assessment year 1955-56 issued by the Income Tax Officer, A Ward Distt. I (I), Calcutta, for service on Sri Vishan Swarup Agarwalla of 12 A, Netaji Subhas Road, 2nd floor, (Name and Address of the Assessee) Calcutta, I attempted to contact the assessee for personal service on 28-3-1972 between the hours 16.00 to 16.30 and again on 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... howing cause before reopening. The process server in this attempt to serve the notice having failed to serve, he must have made reasonable and diligent attempts as enjoined by the provisions of Order 5, Rule 17. The procedural requirements of Order 5, Rule 20 of the Code and this were also followed in the instant case. In the aforesaid background, in my opinion, for the purpose of this application the petitioner cannot be allowed to contend that the notice had not been served upon the petitioner before the re-opening. The first ground of challenge, therefore, fails. 4. The second ground of attack against reopening was that the Income Tax Officer had no material to reopen the assessment. I am unable to accept this contention. The grounds fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have reason to believe that because of the failure of the assessee to disclosed fully and truly all material facts necessary for his assessment, his income assessable to tax for the assessment year 1955-56 has escaped assessment. I therefore propose to reopen his Income Tax assessment for 1955-56 assessment year for which the approval of the Board is solicited." Therefore, it appears that information was received on evidence of the Bank Manager that the petitioner had caused transmission of money to the extent of ₹ 12,00,000/- from Calcutta in some fictions name. If upon this information the Income Tax Officer forms the belief that these was not full disclosure in case of the assessee who had disclosed only an income of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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