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2015 (4) TMI 626 - CALCUTTA HIGH COURT

2015 (4) TMI 626 - CALCUTTA HIGH COURT - TMI - Regulation of Proceedings - notice of appeal not served - Held that:- The omission to serve notice of appeal as required by rules coupled with failure on the part of the appellant to serve notice of appeal inspite opportunity granted after time prescribed by rules to serve had expired leaves no other option to the Court except to dismiss the appeal. - ITA 156 OF 2006 - Dated:- 1-4-2015 - Girish Chandra Gupta Ans Arindam Sinha JJ. For the Appellant : .....

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he registry by its report dated 24th June, 2014 informed this Court that no notice had been taken out by the appellant from the section for service upon the respondent. There was as such a clear violation of Chapter XXXI Rule 8 of the Original Side Rules of this Court which provides as follows: 8.Notice of Appeal. Within one week from the date of admission of an appeal, or within such extended time as may be allowed by the Registrar, the appellant shall take out and deliver to the Sheriff a Noti .....

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Side. Since notice of appeal was not served, the appeal became liable for disposal. On 29th January, 2015, the matter was again in the list. Rather than disposing of the appeal we were inclined to give another opportunity and as a matter of fact, granted an opportunity to the appellant to serve and to file affidavit of service. In spite thereof, the appellant did not wake up. On 26th February, 2015, again the matter was in the list and the matter was adjourned on the prayer of the learned advoca .....

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peal as required by the Rules was ever served. The appellant did not also take steps to serve notice of appeal in spite of repeated opportunities granted by the Court. It is an appeal under section 260A of the Income Tax Act, 1961. Subsection (7) of Section 260A reads as follows:- (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this sectio .....

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ons were not served in consequence of plaintiff s failure to pay costs. Order 9 Rule 2 is reproduced below:- Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by rule 9 of Order VII, the Court may make an order that the suit be dismissed: Provided that no such order shall be m .....

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or a period of [seven days] from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons, the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that - (a) he has failed using his best endeavours to discover the residence of the defendant, who has not been served, or (b) such defendant i .....

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