TMI Blog1978 (7) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... income of Rs. 73,935. As against the said assessment, the assessee preferred an appeal. In that appeal, the AAC directed the deletion of Rs. 72,500 on the ground that the said amount has to be considered as income from undisclosed sources for the assessment year 1958-59 and not for the assessment year 1959-60. As a result of the said appellate order, the ITO initiated action under s. 147(b) of the Act for the assessment year 1958-59 after obtaining the sanction of the CIT, by issuing a notice dated March 25, 1967, under s. 148 of the Act to the assessee intimating that he had reason to believe that income chargeable to tax for the said assessment year had escaped assessment and requiring the assessee to file a return of income within 30 days from the date of the receipt thereof. The said notice was served by the notice-server of the department on March 27, 1967, on one Balakrishna Pillai who acknowledged the same describing himself as the manager of the firm. On April 26, 1967, the said Balakrishna Pillai wrote to the ITO stating that the managing partner who had gone to Madras had not returned and that it would take some more weeks for him to return, and praying for time for f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment cannot be held to be valid. The Tribunal, however, held that the notice under s. 148 having been served on Balakrishna Pillai and acknowledged by him as the manager of the firm, the reassessment was valid and proper. Aggrieved against the decision of the Tribunal, the assessee has approached this court by way of this reference. There cannot be any dispute that the ITO will have no jurisdiction to make an assessment under s. 147 unless the notice under s. 148 is validly issued to and served on the assessee. This is clear from the following decisions. In Narayana Chetty v. ITO [1959] 35 ITR 388 it has been held by the Supreme Court that the notice prescribed by s. 34 of the Indian I.T. Act, 1922, for the purpose of initiating reassessment proceedings is not a mere procedural requirement, that the service of the notice on the assessee is a condition precedent to the validity of any reassessment made under that section, and that if no notice is issued or if the notice issued is shown to be invalid, then the proceedings taken by the ITO without a notice or in pursuance of an invalid notice would be illegal and void. In Thangam Textiles v. First ITO [1973] 90 ITR 412 this cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. " Rule 15 of O. 5 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. " Rule 6 of O. 3 is also relevant to find out as to who may be appointed as agents to accept service of processes and how. That provision is as follows : " (1) Besides the recognised agents described in rule 2 any person residing within the jurisdiction of the court may be appointed an agent to accept service of process. (2) Such appointment may be special or general and shall be made by an instrument in writing signed by the principal, and such instrument, or, if the appointment is general, a certified copy thereof shall be filed in court. " These provisions make it clear that the service of notice on a person can be effected by serving the notice on his agent who has been specifically empowered or authorised to receive the notice in writing by that person. It is not in dispute in this case that there is no personal service on the partners of the firm. It is also not disputed that the manager on whom the notice has been se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been personally served on the party but was served on his gumastha, it must be shown that the requirements of O. 5, r. 12 or r. 13 have been complied with and that it cannot be assumed, without further enquiry, that service on the gumastha was sufficient. In Papamma Rao v. Revenue Divisional Officer, AIR 1918 Mad 589, a Division Bench of this court while dealing with the manner of service contemplated by s. 45(2) of the Land Acquisition Act, which also attracts the provisions of the Code of Civil Procedure, in the matter of service of notices, expressed the view that unless a person is appointed as agent to accept service of processes by an instrument in writing signed by the principal, the service on him cannot be said to be valid. The view taken in that case was that an oral authority is not sufficient but there should be a written authority. Similar view has been taken in CIT v. Baxiram Rodmal [1934] 2 ITR 438 (Nag), CIT v. Dey Brothers [1935] 3 ITR 213 (Rang) and C. N. Nataraj v. Fifth ITO [1965] 56 ITR 250 (Mys). In CIT v. Baxiram Rodmal [1934] 2 ITR 438 (Nag) it has been held that the mere fact that a person had accepted notices on behalf of the assessee on previous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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