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TMI Blog1971 (8) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... ment years was completed by the Income-tax Officer on November 28, 1961. Thereafter, the Commissioner of Income-tax initiated proceedings under section 33B and issued notices to the assessees on October 19, 1963. Notices were issued by registered post. They were also entrusted to the income-tax inspector for personal service. It is conceded that the notices sent to the assessees by registered post were served long after the Commissioner passed his orders under section 33B. He passed those orders on November 2, 1963, and the notices sent by registered post were only served on the assessees on November 18, 1963. Therefore, we can ignore those notices. Now coming to the notices sought to be served personally by the income-tax inspector, Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contacted the Income-tax Officer concerned and served the notice by affixation under his orders." On the strength of those reports, the Commissioner came to the conclusion that the assessees were properly served and on that basis he proceeded to exercise his powers under section 33B, ex parte. The assessee, instead of appealing against those orders, straightaway approached the High Court of Calcutta under article 226 of the Constitution. The High Court entertained those writ petitions. The learned single judge who heard the writ petitions at the first instance dismissed one of the petitions holding that the assessee had been given reasonable opportunity for representing his case before the Commissioner. But strangely enough he had earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were a summons issued by a court, under the Code of Civil Procedure, 1908 (V of 1908). " Rule 17 of Order V of the Civil Procedure Code reads : " Where the defendant or his agent or 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 summons 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee should have gone up in appeal against the order under section 33B. They should not have been allowed to invoke the extraordinary jurisdiction of the High Court. This court has emphasised that aspect in more than one decision. The learned judges while noticing those decisions have tried to bypass those decisions. But, it is needless to go into that question now. It cannot be said that the High Court had no jurisdiction to entertain the writ petitions though it should not have exercised its discretion in favour of the assessee in view of the adequate alternative remedy they had.
In the result these appeals fail and they are dismissed. In the circumstances of the case, we make no order as to costs.
Appeals dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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