1980 (2) TMI 61

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..... held that Sri Rastogi was not an authorised agent of the assessee. Service on him was immaterial. In fact, the assessee came to know of the passing of the assessment order later and he applied to obtain a copy on 25th February, 1969, and of the demand notice on 8th April, 1969. So, the appeal was filed within time. The further finding of the AAC that the memorandum of appeal was not accompanied by the demand notice was held not to vitiate the appeal. The Tribunal held that at the worst it was an irregularity. Accordingly, the Tribunal set aside the order of the AAC and directed him to dispose of the appeal on merits. The Tribunal has, at the instance of the Commissioner, referred the following questions of law for our opinion : " 1. Wh .....

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..... vice of the notice on Sri R. K. Rastogi was valid. It is not disputed that Sri R. K. Rastogi was not a member of the assessee-HUF. The Tribunal found that Sri Rastogi was not an authorised agent of the assessee- HUF. This finding also has not been questioned. Mr. Gulati for the revenue stressed that in the past notices used to be served on Sri R. K. Rastogi and the assessee never took any objection that the service of notices on Sri Rastogi was improper or invalid. That may be so, but that fact by itself shall not make Sri Rastogi an authorised or recognised agent of the HUF. Under sub-s. (1) of s. 282 a notice may either be sent by post or as provided in the Code of Civil Procedure. Order 5, C. P. C., makes a detailed provision as to t .....

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..... ishable. Similarly, the decision of the Bombay High Court in K. C. Tiwari Sons v. CIT [1962] 46 ITR 236 is inapplicable. The assessee had admitted service of notice. He had appeared and asked for an adjournment. Thereafter he was debarred from pleading lack of service. No such situation has arisen in our case. In C. N. Nataraj v. Fifth ITO [1965] 56 ITR 250 (Mys), it was held that service on the clerk of the assessee's father who was not an authorised agent, was invalid. We are satisfied that delivery of the notice on Sri R. K. Rastogi was not a valid service of the assessment order on the assessee. The Tribunal was justified in holding that the appeal was within time. In the result, question No. 1 is answered in the affirmative, in .....

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