TMI Blog1964 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... n their individual names and not in the name of their guardian. The notices issued to the petitioners were served on K. Shivanna, the clerk of Nagappa, the petitioners' father. For the assessment year in question all these petitioners had previously submitted returns under section 22 of the Indian Income-tax Act, 1922. The Income-tax Officer held them to be not assessable. On the other hand, he held Nagappa to be liable to pay tax on the income in question and assessed him for the same which assessment, as mentioned earlier, was set aside by this court. In these petitions the petitioners have prayed for a writ of prohibition or direction prohibiting the respondent from assessing them to tax, for the assessment year 1958-59, in pursuance of the notices referred to earlier. Sri K. Srinivasan, the learned counsel for the petitioners, formulated three points in support of the prayer made in these petitions. They are: (i) the notices served on K. Shivanna, not being in conformity with the provisions contained in section 282 of the Act, no further steps can be taken in pursuance of those notices; (ii) the notices issued in the names of the petitioners in Writ Petitions Nos. 583 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of a firm or a Hindu undivided family, to any member of the firm or to the manager or any adult member of the family; (b) in the case of a local authority or company, to the principal officer thereof; (c) in the case of any other association or body of individuals, to the principal officer or any member thereof; (d) in the case of any other person (not being an individual), to the person who manages or controls his affairs. In the present case sub-section (2) of section 282 has no application. Herein we are dealing with individuals. Therefore, all that we have to see is whether the requirements of sub-section (1) of section 282 are complied with. Admittedly, no notice was sent to the petitioners by post. This leaves us with the question whether the notices said to have been served in these cases can be considered as having been served in accordance with the provisions contained in the Civil Procedure Code, 1908. In the Code of Civil Procedure, the procedure for service of summons is provided in Order V. The rules relied on by the learned counsel for the revenue are rules 9(1), 12 and 15 of Order V. Rule 9(1) of Order V says: Where the defendant resides withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning* is ours) It is not the case of the revenue that K. Shivanna had been appointed as an agent by means of an instrument in writing, signed by the petitioners. Hence, the revenue cannot take any assistance from rule 12 of Order V, Civil Procedure Code. This takes us to rule 15 of Order V, which says: Where in any suit the defendant is absent and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him. Explanation.--A servant is not a member of the family within the meaning of this rule. In the first place, Shivanna cannot be said to be a member of the family of the petitioners. He is at best a servant. Servant is excluded from the scope of rule 15. That apart, it is not the case of the revenue that the petitioners were absent. Hence, this rule is also inapplicable to the facts of these cases. It was urged by the learned counsel for the revenue that the service of notices in these cases is in accordance with section 282(2)(a). We have earlier observed that section 282(2)(a) is inapplicable to these cases. Herein, we are not dealing with the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition appears to be obvious. If authority is needed in support of this view, we may usefully refer to the decision of the Madras High Court in Ravith Bibi v. Agricultural Income-tax Officer, Dindigul [1964] 52 I.T.R. 471. As against this decision, the learned counsel for the revenue invited our attention to the decision of the Allahabad High Court in Shridhar Udai Narayan v. Commissioner of Income-tax [1962] 45 I.T.R. 577. That decision deals with the scope of section 63(2) of the Indian Income-tax Act, 1922, which corresponds with sub-section (2) of section 282 of the Act. Therein, it was held that the words adult member of the family do not necessarily mean that he should be major according to law. That decision does not bear on the point under consideration by us. That case dealt with an assessment on a Hindu undivided family. In view of the above findings, we do not think that it is necessary to pronounce on the third point formulated by Sri K. Srinivasan. The learned counsel for the revenue strenuously contended that we should not grant the relief prayed for, firstly, because the questions raised, being essentially questions of fact, must at the first instance be deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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