TMI Blog1957 (2) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... was at Karachi of the receipt of notice. He received a reply that a lawyer should be consulted. The last date for filing the return which was the 1st of September, 1950, expired and no return was in fact filed. On the 15th of January, 1951, the Income-tax Officer issued another notice under section 22(4) of the Income-tax Act, calling upon the firm to produce its account books by the 29th of January, 1951, on which date the assessee put in an application asking for an adjournment for the production of accounts on the ground that the accountant of the firm had been taken ill, but the adjournment was refused, and, on the same day, the Income-tax Officer made a best judgment assessment under section 23(4). The assessee appealed to the Appellate Assistant Commissioner against assessment on the ground that service on Habib-ur-Rahman of the notice under section 22(2) was not valid service, and, therefore, on the strength of that service, an order under section 23(4) could not have been made. The learned Appellate Assistant Commissioner accepted the contention and set aside the assessment directing the Income-tax Officer to issue a fresh notice. Against this order of the Appellate Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1908. (2) Any such notice or requisition may, in the case of a firm or a Hindu undivided family, be addressed to any member of the firm or to the manager, or any adult make member of the family and, in the case of any other association of individuals, be addressed to the principal officer thereof. Order V, rule 12 of the Civil Procedure Code: 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. Order III, rule 6: (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. The question, which has been referred no doubt puts into issue only the application of Order V, rule 12, of the Civil Procedure Code, and if we were to determine only whether Habib-ur-Rahman was the assessee's agent empowered to accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o was present in the premises of the firm, and was probably the most important of the servants present at that time, is in law sufficient. (In fact, although this point had not been argued before us, in the case of a firm under Order XXX, rule 3, of the Civil Procedure Code service upon any person having, at the time of service, the control or management of the partnership business, is legally valid). It should be remembered that it is only in exceptional circumstances that any person is in this country empowered to accept service. For persons who want to avoid service, there is no benefit in empowering anybody to receive service on their behalf, and the assessee in this case is one who would, according to the Income-tax Commissioner, even repudiate service in a case where he had the full knowledge of the notice issued against him. Another difficulty in the way of the application of Order V, rule 12, is that under Order III, rule 6, an authority to accept service of process should be in writing. It has been urged before us that Order V, rule 12, does not itself mention any written authority, but if we were to accept that an authority for the acceptance of service of process can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 393, one of the questions which had been referred to the Full Bench was Whether the High Court can formulate questions at the stage of mandamus or whether the Commissioner alone is the authority to formulate those questions while stating the case? The reply of the learned Judges will appear from the following extract from the judgment: It follows, therefore, that in a reference under sub-section (2) the Commissioner cannot travel beyond the question originally indicated by the assessee nor can the High Court raise any question suo motu which is not covered by the reference and in case of the Commissioner's refusal the High Court is confined to the question raised by the assessee in his application to the Commissioner. The High Court may formulate the question itself but its substance must be the same though the form may be modified either to give the question indicated by the assessee a proper shape, or to bring out most prominently the legal aspect of the case, discarding all reference to facts. In Commissioner of Income-tax, Bihar and Orissa v. Sir Kameshwar Singh [1933] 1 I.T.R. 94 the Commissioner had made a reference to the High Court under sub- section (2) of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angpur Cotton Manufacturing Co. Ltd. [1938] 6 I.T.R. 36, a reference had been made by the Commissioner under sub-section (3) of section 66 on a question formulated by the High Court. The Commissioner in the statement of case drawn up by him suggested the substitution of another question. The High Court, without remanding the case, itself amended the question originally formulated by it and gave its decision thereon. Their Lordships of the Privy Council did not criticise this procedure and while finally disposing of the appeal themselves recast the question so as to make it conform to the true state of affairs as disclosed in the case and answered it accordingly. It would be clear from the extract that in the view of the learned Judges a change of the form of the question was permissible. In the present case, the real question, which was relevant for the decision of the case before the Tribunal, was whether service of notices was valid. If service was in fact effective it would be immaterial whether it was covered by Order V, rule 12, or not. In fact the High Court decides only those questions which have a direct effect upon the result of the case before the Tribunal, and if ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of such business, a service of notice on Manzur Ahmad would have been quite regular. Here the notice was received by Habib-ur-Rahman but was delivered to Manzur Ahmad, so the only irregularity is that, instead of being personally delivered to Manzur Ahmad by the bailiff, it was delivered to him through Habib-ur-Rahman. In any case, even the assessee had been fully informed and he accepted the notice without any objection to its regularity. After the second notice under section 22(4) was received the assessee appeared before the Income-tax Officer and prayed for time. It is to be remembered that a notice under section 22(4) could, in this case, be valid only if the earlier notice under section 22(2) had been served. So when the assessee applied for time to produce accounts, he accepted that he had been validly served under section 22(2). It is open to a person to waive any irregularity in a procedure that is intended for his benefit and once having waived it, he is henceforth estopped from objecting to it. The assessee had, in this case, waived any irregularity that there was in the service of the notice by appearing before the Income-tax Officer and applying for time ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
