TMI Blog1962 (2) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... itiate and complete the proceedings in question? 2. Whether notice under section 34 has been served on the assessee as required by law and whether the assessment is proper and legal, in the absence of a proper service of notice on the applicant? 3. Whether, on the facts and in the circumstances of the case, the provisions of section 34 were properly applied, especially after the identical amount had been the subject of examination by the Income- tax Officer before accepting the disclosure made by the applicant? 4. Whether, on the facts and in the circumstances of the case, there is any material to sustain the finding of the Tribunal that any income has escaped assessment? 5. Whether, in the facts and circumstances of the case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the department and the assessee is not material for answering question No. 2. The assessee was carrying on business in grocery articles as a wholesale trader and as a commission agent with head-office at Trichur and a branch at Kozhikode. Up to and inclusive of the assessment year 1949-50, he was assessed to tax under the Indian Income-tax Act as well as the Cochin Income-tax Act. For the year 1945-46, the assessment under the Indian Income-tax Act was finally completed after appeals and remand on December 31, 1949. The Indian Income-tax Act was extended to the Part B States and on and from the assessment year 1950-51, the assessment has to be made only under that Act. The assessment records of the assessee were therefore transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandatory provisions of section 34 in order to confer jurisdiction on the Income-tax Officer to proceed to reassess the assessee under section 34 of the Act. Annexure N to the statement of the case gives copies of the reports of the notice served and extracts from the order-sheet. From the report of the notice server dated March 29, 1954, it is seen that notice has been served by affixture at Trichur since the person was not available and the report relating to the service at Kozhikode is to the effect that since the person noted in the notice, Sri M.O. Thomas, is permanently residing at Trichur, the notice has been served by affixture at Shop No. 9/351 (business premises of the assessee) in the presence of C.L. Antony, Manager... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf nor any other person on whom service can be made. It appears to us to be clear that the Income-tax Officer, Trichur, also felt that the service was not proper. There is no verification of the service under rule 17 of Order V by an affidavit by the serving officer as enjoined by rule 19 of Order V. The Income-tax Officer, noticing the same, has ordered: Sworn statement of the notice server may be obtained. This is seen from the following extract from the order-sheet of the Income-tax Officer, Trichur, which is contained in annexure H to the statement of the case: Notice served by affixture on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is invalid either because of its being incorrectly issued or because it is improperly served negativing the argument that a procedural defect would not invalidate the notice. The Supreme Court in Y. Narayana Chetty v. Income-tax Officer, Nellore [1959] 35 I.T.R. 388; [1959] Suppl. 1 S.C.R. 189, observed at page 392 thus: The notice prescribed by section 34 cannot be regarded as a mere procedural requirement; it is only if the said notice is served on the assessee as required that the Income-tax Officer would be justified in taking proceedings against him. If no notice is issued or if the notice issued is known to be invalid then the validity of the proceedings taken by the Income-tax Officer without a notice or in pursuance of an invali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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