TMI Blog1971 (8) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... common question of law, namely, whether the assessee (respondents in these appeals) have been properly served before action was taken under section 33B of the Indian Income-tax Act, 1922, which will be hereinafter referred to as " the Act ". The assessment year with which we are concerned in these appeals are 1959-60, 1960-61 and 1961-62. The assessment for those assessment 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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the station and is expected back after a month or so. On further enquiry they informed that there was no second man to receive the notice in the absence of Mr. Ghosh. Mr. Ghosh's correct address and the place for which he left were not also furnished. From my conversation with them it appeared to me that they were avoiding the service of the notice. In the circumstances, I 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, straightawa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to them, Mr. Neogi must have gone to a wrong place. This contention of the assessees has been accepted by the Appellate Bench of the High Court. Bearing these facts in mind, let us now proceed to consider the relevant provisions of law. Section 63(1) of the Act reads : " A notice or requisition under this Act may be served on the person therein named either by post or, as if it 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity to put forward their case as required by section 33B. We cannot leave this case without expressing our disapproval as regards the procedure adopted by the High Court. The question whether the assessees had been served in accordance with the law or not is essentially a question of fact. The Income-tax Act provides for an appeal against the order under section 33B. Normally, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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