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Jagannath Prasad and ors. Vs. Commissioner of Income-tax and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ No. 237-Tax of 1975
Judge
Reported in[1977]110ITR27(All)
ActsIncome Tax Act, 1961 - Sections 282; Code of Civil Procedure (CPC) , 1908 - Order 5, Rule 20
AppellantJagannath Prasad and ors.
RespondentCommissioner of Income-tax and ors.
Appellant AdvocateD.C. Chaturvedi, Adv.
Respondent AdvocateDeokinandan, Adv.
Excerpt:
.....thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. rule 20. (1) where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit...........affixture on the last known address.' 3. on december 13, 1972, there is an endorsement running: 'served by affixture in the presence of sri mahabir prasad, n. s. today.' 4. mahabir prasad had endorsed that the affixture took place in his presence. the question is as to whether service by affixture effected in these circumstance is sufficient service as contemplated by the act. section 282 of the act provides that the notice may be served on the person named therein either by post or as if it were a summons issued by a court under the code of civil procedure. in the present case, the notice was not served on the assessee by post. it was served by affixture. as it was served by affixture, it has to be seen as to whether it was served in the manner required by the code of civil procedure.....
Judgment:

C.S.P. Singh, J

1. The controversy raised in this petition falls within a very narrow compass. We will set out only such facts as are necessaryfor the disposal of this application. The question that arises is as to whether there was valid service of the notice of demand on the assessee, petitioner No. 1. The petitioner, in his petition, has alleged that no notice of demand was served on him. In order to ascertain the facts correctly we directed Sri Deokinandan, counsel for the department, to produce the relevant papers. The 'record was produced in court. From the record, it appears that N. D. challan for interest and challan for regular payment and I. T. 30 Form were sent by the process server addressed to the petitioner, assessee No. 1, on October 3, 1972 ; the process server on the back of this made the following endorsement in Hindi which translated runs:

'I inquired at a number of places but could not find out.'

2. On October 4, 1972, i.e., on the next day, the Income-tax Officer passed the following orders:

'I. T. I.--Please serve by affixture on the last known address.'

3. On December 13, 1972, there is an endorsement running:

'Served by affixture in the presence of Sri Mahabir Prasad, N. S. today.'

4. Mahabir Prasad had endorsed that the affixture took place in his presence. The question is as to whether service by affixture effected in these circumstance is sufficient service as contemplated by the Act. Section 282 of the Act provides that the notice may be served on the person named therein either by post or as if it were a summons issued by a court under the Code of Civil Procedure. In the present case, the notice was not served on the assessee by post. It was served by affixture. As it was served by affixture, it has to be seen as to whether it was served in the manner required by the Code of Civil Procedure for service of summons. The provision for issue of service of summons is made in Order V of the Code of Civil Procedure. Counsel for the petitioner has urged that the matter was covered by Order V, Rule 17, of the Code of Civil Procedure, and there has been a clear non-compliance with that provision ; as such, the service cannot be deemed to be sufficient. On the contrary, counsel for the revenue has contended that the matter is covered by Order V, Rule 20 of the Code and there has been sufficient compliance with this provision. Order V, Rule 17 and Order V, Rule 20, Clause (i), may be extracted :

'Rule 17.--Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return theoriginal to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

Rule 20. (1) Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit.'

5. Now, if the matter is considered with reference to Order V, Rule 17 and Rule 19, in view of the large number of decisions that have been cited before us of other courts and of this court, the service would not be sufficient. This position would hardly be disputed by Shri Deokinandan, counsel for the revenue. In view of this we think it unnecessary to refer to cases under Order V, Rule 17. We now proceed to consider as to whether service can be held to be sufficient on account of the provisions of Order V, Rule 20. We have already extracted Rule 20. Before action under Rule 20 can be taken two conditions must exist, one, that the court has reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way. We will avoid going into the controversy as to whether the satisfaction of the court regarding these two conditions must be recorded in a written order. Nevertheless, there must be material on the record on the basis of which y reasonable person might come to the conclusion that either of these conditions is satisfied. The satisfaction of the court contemplated by Order V, Rule 20 is an objective satisfaction. It is not a subjective one and, as such, relevant material must exist on the record to justify this conclusion. Counsel for the revenue has urged that inasmuch as the Income-tax Officer passed the impugned order it must be taken that he was satisfied that one or the other of these conditions existed. We are unable to concur with this view. The report given by the process server was to the effect that he had made enquiries at a number of places but could not find out, which, in the context, means the assesses. After this report the Income-tax Officer passed an order for affixture. From the mere fact that the process server could not find out the assessee it would not lead to the conclusion that the assessee was keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served. The report does not indicate that more than one attempt made by the process server. On the contrary, it indicates that on a single attempt he enquired at a number of places but could not find out the assessee. This, in our view, cannot constitute sufficient material for the satisfaction of the Income-tax Officer that the conditions requisite for the application of Order V, Rule 20, existed. The order of the Income-tax Officer directing service by affixture is based on no relevant material on the record and, as such, has to be struck down.

6. We accordingly quash the notices of demand (annexures 3 and 4) and also the order of attachment of properties (annexure 13) and direct the respondents not to realise the impugned tax on the basis of these notices and to withdraw the order of attachment. The petition is allowed with costs.


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