TMI Blog1958 (12) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... s indicated therein. It is also clear that ordinarily such a notice has to be issued with eight years after the expire of the assessment year in question. The position till recently was that the notice had also to be served before eight years had expired. Whether such service of the notice within eight years after the expire of the assessment year is still necessary or not after the recent amendment of the Income-tax Act need not be considered in the present appeal. Clearly, however, before service of the notice has been effected, the Income-tax Officer has no jurisdiction to take the further steps necessary for assessment of the income. In the present case a notice was actually issued before the expire of eight years. A return of service was submitted to the Income-tax Officer and on the basis of this return the Income- tax Officer preceded to issued a notice on the appellant under the provisions of section 22(4) of the Income-tax Act calling upon the appellant to produce books and accounts as mentioned therein. The appellant's case being that there has been no proper service of the initial notice under section 34 of the Act, he sought the aid of this court under the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties would amount to a judgment. This court rejected that contention and after referring to a decision of the Madras High Court that the word judgment could not be limited to the final judgment is a suit, nor indeed to a judgment in a suite at all, but must be held to have the more general meaning of any decision or determination affecting the right or the interest of any suitor or applicant, observed: We are not, however, prepared to go to this extent. Such an interpretation would, as it seems to us, and as the learned Judges in that case seem to admit, put it in the power of a vexatious litigant to appeal against all the discretionary orders which the Judge of original jurisdiction may make in the course of the suit; and (as the learned Judges of the Madras High Court pointed out) with no results, as such orders would have to be, as a matter of course, confirmed. It would also give far more extensive right of appeal against the orders of a Judges of original jurisdiction in this court, than exists against the order of a Judge of original Jurisdiction in the mofassil; which we do not think at all probable that Her Majesty intended. We think that 'judgment' in cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Patent and so an appeals lies. But, says, Mr. Meyer, the Oriental Gas Company's case was itself a case where a mandamus had been issued by Phear, J., and still it was held that no appeal lay. One has only to examine the special procedure followed in mediums proceedings in those days to understand that the fact that no appeal was held to lie against the order issuing a writ of mandamus in that case can be no reason for thinking that an appeal would not lie in the present case. We have to remember that under the procedure as followed at present, a rule nisi is first issued on the opposite party, against whom relief under article 226 of the Constitution is sought, to show cause why an order as prayed for should not be made commanding the opposite party to do something or prohibiting them from doing something or directing records to be called for under the writ of certiorari and quashing the proceedings or some other suitable direction given. At the hearing of the rule, the question whether such a commandment or direction should be made is finally determined. As against these two stages of mandamus proceeding as under the present procedure, the procedure followed in the old da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings by which the liability of the Justice to make compensation will be ascertained and determined. It is worth noting that the proceedings which are said to be initiate by the order of Phear, J., were proceedings before this court in connection with the issue of mandamus. The positing was that the question whether peremptory mandamus should issue or not had not been determined and unless that had been determined, the court held there had been no such determination of a right or liability which could make the decision a judgment. Mr. Meyer pointed out that in Asrumati's case [1953] S.C.R. 1159 the Supreme Court has taken the view that the facts that there has been a determination of the proceedings in the High Court was not sufficient and as even after the order of transfer of a suit under clause 13 of the Letters Patent, the suit itself still remained to be decided, the order of transfer or refusal to transfer would not amount to a judgment. I am unable to see how that decision in any way helps the respondents' contention. If the proceeding in the application for an order for transfer could be considered to be an independent proceeding as distinct from a proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summon on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstance under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. From the affidavit of the surveying officer it is clear that when he went with the notice to the address of the present appellant, he found the Appellant had gone out. Then he offered the notice to a person who was pointed out to him as the appellant's son and on the latter's refusal to accept the service, he affixed the notice. The first requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n date in income-tax cases which are not likely to occur in ordinary cases coming before the civil courts. In my opinion, the fact that serious consequences may follow the commission to serve in accordance with the procedure laid down by lay can never justify the court in relaxing the requirements of law. If such relaxation is necessary, the Legislature of the country is the proper authority to do so. It will be dangerous if in their attempt to relieve any party of the effects of his omission to follow the procedure required by law, because of the serious consequences that would otherwise follow, the courts of law should take upon themselves to permit a different procedure. It does not appear that Sinha, took into consideration the effect of the words cannot be found in coming to his conclusion that there had been proper service in accordance with law. My conclusion, therefor, is that there has not been valid service in accordance with law of the notice under section 34 of the Income-tax Act, and consequently the issue of the notice under section 22 of the Act on the assumption that there has been service of notice under section 34 is without jurisdiction. It appears to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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