1. The petitioner firm which consisted of two partners, Ebrahim Ali and Mohammad Esoof, was unregistered for purposes of assessment to income-tax. The firm had its business mainly in Rangoon, and it had a branch office at Madras. The partners were residents of Illayangudi in Ramanathapuram District, On 1-4-1941 Esoof left for Burma, and his partner Ebrahim followed him in November, 1941. Subsequent to March 1942, when Burma was occupied by enemy forces, communications between India and Burma were severed for the duration of the war. Ebrahim and Esoof returned to Illayangudi in 1945-48. The partnership was dissolved in 1947.
2. For the assessment year 1939-40 the firm lodged a return, which showed that its income was below the assessable limit. The assessment was completed on 6-3-1940. The income from Burma was not taken into account then. The explanation given in paragraph 3 of the counter-affidavit was:
'At this time because of enemy occupation of Burma, die income from foreign business at Burma was not' taken into account.' Proceedings under Section 34 of the Income-tax Act were ' taken in January, 1942. By then, it should be remembered both the partners had left for Burma; It was, common ground before us that the branch office at Madras was closed in February 1942 and the premises vacated. Eventually, service of the notice is-'sued under S; 34 was effected by affixture to the residence at Illayangudi of the two partners, where their wives lived, The partners could however get no knowledge of these proceedings. The proceedings under Section 34 were completed on 22-3-1944, in the absence of the partners of the assessee firm. They were not represented by any one else either.
3. As the partners were still in Burma, no returns were filed by them for the assessment years 1940-41 and 1941-42. The assessments for these two years were completed under Section 23(4) of the Act on . 25-2-1942 and 20-2-1942 respectively. Notices of the demand under Section 29 for these two years were served by affixture to the residences of the partners at Illayangudi. . .
4. The notice of demand after the assessment for 1939-40 was completed, under Section 34:was served by affixture at Madras though the premises had been vacated even in 1942, by the assessee. As the taxes levied for the three years remained unpaid the department issued certificates to the Collector under Section 46(2) of the Act. For the tax due for 1941-42 a certificate was issued on 25-6-1942. For the tax due for 1940-41 a certificate was issued on 15-3-1943. It was issued oh 17-5-1946 for the' tax due for ,1939-40.
5. Ebrahim and Esoof returned to India by 1946. The petitioner claimed that it was only in November, 1953 that they came to know that demands for the three years were outstanding. After some correspondence with the department the petitioner preferred applications under Article 226 of the Constitution.
6. In W. P. No. 250' of 1955 the petitioner challenged the validity of the assessment under Section 34 for 1939-40 on two grounds; (I) The proceedings were vitiated because the notices initiating the-proceedings had not been duly served on the firm or its partners, and (2) the department had no ''definite information' on the basis of which ft could initiate proceedings under Section 34.' The validity of the subsequent proceedings also was attacked.
7.In W. P. Nos. 251 and 252 of 1955 the petitioner challenged the validity of the proceedings taken by the Collector to recover the arrears claimed by the department for 1940-41 and 1941-42 respectively, principally on the ground that the notices of demand issued under Section 29 had not been duly served onthe assessee.
8. Since the main question for determination is whether the prescribed notices had been duly served, we shall examine the 'relevant statutory provisions. Section 63 of the Income-tax Act runs:
'8301) A notice of requisition under this Act may 'be served on the person therein named either by post or, as if it were as summons issued by a Court, under the Code of Civil Procedure 1908 (Act V of 1908).
(2) Any such notice of requisition may, in the case of a firm.........be addressed to any member of the firm.......'
9. We shall next set out the relevant provisions of the Civil Procedure Code, which are made applicable by Section 63 of the Income-tax Act to notices issued under the provisions of that Act
10. Order V, Rule 12 directs;
'Wherever it is practicable, service shall be, made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.' .
11. Rule 17 of O. V lays down the procedure to be adopted when personal service could not be effected under Rule 12. The relevant portion of Rule 17 runs:
'..........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.......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 the original 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.''
12. To make service by affixture effective, the requirements of O. V, Rule 19 have to be complied with. That runs:
'Where a summons is returned under Rule 17; theCourt shall, if the return under that rule has notbeen verified by the affidavit of the serving officer,and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examinedby another Court, touching his proceedings, and maymake such further enquiry in the matter as it thinksfit; and shall either declare that the summons hasbeen duly served or order such service as it thinksfit.'
To adapt this to proceedings under the Income-tax ct we have to read 'Income-tax Officer' for' the word 'Court'. Admittedly in the case of none of the notices served by the Income-tax Officer was there a verified statement, nor any examination on oath, of fee person who served the notice by affixture.
13. Rule 20 of O. V, provides for substituted service of notice where the Court is satisfied that there is reason to believe that the defendant is keeping put of the way for purpose of avoiding service or that for any other reason the summons cannot be served in 'the ordinary way and it is common ground that the provisions of this rule were not in any way attracted to the, notices issues in the present case.,
14. Order V, Rule 25 provides: )'Where the defendant resides out of India andhas no. agent in India empowered to accept service,the summons may be addressed to the defendant atthe place where he is residing and sent to him bypost, if there is postal communication between suchplace and the place where the Court is situate.'
Rule 31 of O. V was added by a Madras amendment in 1945. Rule 31(1) runs:
'The Court may, on the application of the plaintiff and on such terms as to security or otherwise as the Court thinks fit dispense with the service of summons on a defendant who is resident in territory belonging to or occupied by a State at War with the Central Government;
Provided that an order dispensing with service o summons shall not be made unless the Court is satisfied that the defendant is resident in such territory and that service of summons on him is the mode prescribed by die Code is not possible.'
15. Here again, to apply these provisions we have to read 'Income-tax Office for the word 'court and 'assessee' for the word 'defendant'1. With reference to the notices issued under Section 34 of the Act for the assessment year 1939-40, die question, whether the requirements of Section 63 of the Act, 'which by its terms ultiiriately: made the relevant provisions of O. V, C. P. C. applicable, were satisfied, has to be answered with reference to the facts set out in paragraph 5 of the counter-affidavit; filed on behalf of the department. That paragraph ran:
'On 16-1-1942 a notice under Section 34 of the Income-tax Act was issued and this was served by affixture in the presence of the assessee's wife in the following circumstances. On 2-9-1941 the assessee had been asked to send the Rangoon assessment order for 1939-40 to which no reply was received. In response to the Section 34 notice, the peon resumed the cover on 31-1-1942 saying the assesses had locked the door of the business premises (at Madras) and gone home. A cover sent by registered post on 16-2-1942 was returned saying that the proprietor has left for Burma. The Income-tax Officer thereupon directed the Inspector to take a peon with him and serve it as it was unlikely that the assessee would have left for Burma at that time. The Inspector thereupon made enquiries and ascertained that the part-, ners were reported to have left to Elayangudi in Kamnad District. Thereupon a notice was issued in the name of Md. Yusuf and this was returned on 10-3-1942 saying' that the assessee was at Rangoon. Then a registered post notice was issued to the present petitioner,. On ,19-3-1942 the notices sent to both were returned stating they were at Rangoon. The Income-tax Officer directed the Inspector to make enquiries. The; Inspector made enquiries and understood' that the partners had vacated' their premises ,and had no office at Madras and that they had leftfor. Elayabgudi. He also understood that the postpeon's report was not correct-as nobody would atthat juncture leave for Rangoon. Notices were thereuporisent to the Income-tax Officer, SiVaganga, forservice at the petitioner's place of residence at Elayangudi. The Income-tax Officer, Sivaganga, sent a peonand this was served by affixture' on the door of the premises of both partners, the' service being duly attested by the Headman of the village.' .
16. The plea, that the Income-tax Officer wasunder the impression that the assessees Were not inBurma but in India, is really inconsistent with they;plea set out in paragraph 3, which we have extracted above, and which related to an' even earlier period.It could not be denied that in fact the two partnerswere in Rangoon long before the initiation of the proceedings under Section 34 in January 1942. The Income-tax Officer was made aware of that even before March 1942.
17. It was not die case of the Department that, A recourse was had to O. V, Rule 31C. P. C., and that service of notice was dispensed with on the ground, that the two partners of the assessee firm were them selves resident in a Country occupied by Japan, which was at war with India. Nor could O. V, Rule 25 apply, because postal communications had been cut between India and Burma. It was not a case of the Income tax Officer, having ordered substituted service under O. V, Rule 20. It could not have been applied because it could not be claimed that the assessee. Was' keeping out of the way for the purpose of avoiding service.
18. Service of the notice under Section 34 was byaffixture to the last known residence of the partners'at Ilayangudi where their wives resided.' Whetherthe assessee was 'duly1' served with these notices hasto be decided with reference to the requirements of O. V, Rule 17 and O. V, Rule 19, C. P. C. What Rule 1 requires is that _'the serving officer after using all thedue and reasonable diligence could not find the assessee'. When the assessee was known to be, in Rangoon, it was futile to look for him at Ilayangudi or to claim that he could not be found at Ilayangudi.Service by affixture under such circumstances could never be due service within the meaning of O. V, Rule 19, C. P. C. Besides, the further requirements of Rule 19 were not satisfied in this case. it
19. What was really done in this case was to reduce the service of notice to a meaningless ritual, Due service under the enabling provisions of O. V, Rule 17 and O. V, Rule 19, C. P. C. should mean that the notice was served in such a way that the assessee had or could obtain knowledge of the proceedings under Section 34, or at least the Income-tax Officer could bona fide believe that the assessee had or could have obtained such-knowledge. With the assessee known to be in Rangoon, postal communication between which place and India was severed by war conditions, it was impossible to expect that the assessee would have a reasonable chance of knowing that proceedings' under Section 34 had been launched.
Even with reference to substituted service, for which O. V, Rule 20 provides, what was necessary was to use the words of Reading C. 'J. in Porter v. Freu-denberg, (1915) 1 KB 857 at p. 888 (A):
In order that substituted service may be permitted it must be clearly shown that the plaintiff is in fact unable to effect personal service and that the writ is likely to reach the defendant or come to his knowledge if the method of substituted service, which is asked for by the plaintiff is adopted.'
20. In Solaiman Moosaji v. Jatindra Nath : AIR1929Cal553 , Rankin'C. J. observed:
'Substituted service is not to be used in any way which is unbusiness like and ridiculous'. With both the partners of the assessee firm known to be in Rangoon, where they could not Be reached by normal means of communication, substituted service would have been, in the words of Rankin C. J, unbusinesslike and ridiculous. But, as we pointed out, recourse was not had to the provisions of O. V, Rule 20, C.P.C. and substituted service was not in fact ordered. Order' V, Rule 31, it should be remembered, was added 'by the Madras amendment only in 1945. .That was riot available to the Income-tax Officer in 1942,
21 It is not necessary for us to specify what the Income-tax Officer should have done ,to .secure due service of the notice he had issued under Section 34. It, is enough to say that there was no proper or due service of the notice on the assessee; and that the service by affixture did not, in the circumstances of this case, constitute due service of the notice.
22. The next contention of the learned counsel for the assessee was that, even if there had been due service of the notice on the assessee, the further requirement of Section 34, as it stood in 1942, that the Income-tax Officer had 'definite information', was not satisfied in this case. It should be remembered that when the assessment for 1939-40 was completed first-it was known that the assessee had income in Burma but that was not taken into account. The contention of the learned .counsel for the assessee appears well 'founded, but it may not be necessary to pursue the matter further or to rest our decision on that feature of the case.
23. The notice of demand under Section 29 with reference to the assessment for 1939-40 completed under Section 34 was served in 1944 by affixture to the premises at Madras, which admittedly the petitioner hadvacated in 1942. It is not necessary to discuss furtherthe validity of that service, when die basis of the demand, the assessment, under Section 34, had itself no validity.
24. The rule is made absolute in W. P. No. 250 of 1955. The order of assessment under Section 34 is set aside. The petition is allowed with costs. Counsel's fee Rs. 250.
25. The Only point that the learned counsel for the petitioners wanted to be decided in W, P. Nos. 251 and 252 of 1955 was, 'whether the notices of demand issued under Section 29 for the 1940-41 and 1941-42 assessments had been duly served on the assessee. There should be no difficulty in answering that question in the' negative and in favour of the petitioners. Certificates under Section 46(2) of the Act could be issued only if the assessee was in default; and under Section 45 the petitioner firm could not have been in default when there was no due service of the notices of demand issued under Section 29.
These notices were served by affixture to the residences of the partners, when it was known or should have been known that they were still in Burma. Eventhe certificates under Section 46(2) were issued when the partners were still in Burma, without any means ofknowing that they had been assessed to tax. Theissue of the certificate and the further proceedings ofthe Revenue authorities were without jurisdiction.Though it was a writ of prohibition that the petitionersasked for in these two writ petitions, the more appropriate relief appears to be to set aside the certificates issued under Section 46(2) of the Act in relation to the assessment years 1940-41 and 1941-42 by the issue of a writ of certiorari. To that extent these petitions are allowed. There will be no order as to costs in W.P.Nos. 251 and 252 of 1955.