TMI Blog1966 (9) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... rrectly specify the default committed by the assessee or that the notice was not signed by the Income-tax Officer?" The assessee is a firm. For the assessment year 1958-59, it appears from the Income-tax Officer's record that the following order-sheet was recorded : "12-6-58 Notice under 22(2) issued. Return to be filed. .... (Blank). I. T. O." The order-sheet is not signed by the Income-tax Officer; nor is any date specified on or before which the return was to be filed. After that date, there is no further record in the order-sheet to indicate that the notice was served on the assessee. Similarly, no acknowledgment was produced before the Appellate Assistant Commissioner or before the Tribunal to show that the notice under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n not filing the return in time. In that order, the Income-tax Officer has mentioned that the notice under section 22(2) of the repealed Act was served on the assessee on October 27, 1958. The assessee challenged the order of the Income-tax Officer imposing the penalty before the Appellate Assistant Commissioner as also before the Tribunal on the ground that no notice under section 22(2) of the repealed Act was served on it and that the return filed on June 22, 1960, was a voluntary return and that, in the absence of a notice under section 22(2), no penalty proceedings could have been initiated against it. It was also urged that inasmuch as the notice was not signed by the Income-tax Officer and inasmuch as the notice did not indicate corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, there is sufficient evidence about such receipt in the notice under section 22(4), dated January 11, 1960, and the reply which the assessee made on February 24, 1959, to the notice dated February 7, 1959. The assessee's contention that it did not receive any notice under section 22(2) is, therefore, rejected." Shri K. A. Chitaley, learned counsel for the assessee, submitted that the Tribunal rightly came to the conclusion that the immediate occasion for sending the reply, dated February 24, 1959, was only the notice under section 22(4). But the Tribunal, by a curious mode of reasoning, came to the conclusion that the reply may also be held to refer to the notice under section 22(2). Shri Chitaley further urged that, if the reply is om ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serving officer is bound to send to the court and which must contain all that he has done in the matter of effecting service. In that case, the effect of provisions analogous to Order 5, rule 19, Civil Procedure Code, were under consideration. Under that rule, the officer effecting the service of the summons is required to return it with an affidavit regarding the steps taken by him. In the absence of such an affidavit, the court is allowed to take evidence to satisfy itself whether the service was properly effected or not. It is thus clear that though the affidavit of the serving-officer is the best evidence, when that is not available, other evidence can be taken into consideration and the court is not precluded from relying on such evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence is not a matter open for consideration before this court. It is also true that this court is not entitled to question a finding of fact if it is based on evidence. But this court has certainly jurisdiction to question a finding recorded by the Tribunal if it is based on no evidence or if it is based on facts which cannot lead to the conclusion arrived at by it. The reply sent by the assessee was in response to the notice under section 22(4). The inference that it was in response to the notice under section 22(2) is, to say the least, unwarranted. The mention in the notice issued under section 22(4) that the notice under section 22(2) was served on a certain date is equally inconclusive. The fact that the return was filed on a printe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o penalty should be imposed without giving adequate opportunity to the assessee to show cause why the penalty should not be imposed. That was done in this case. In response to the notice, the assessee appeared before the Income-tax Officer and made submissions. No prejudice was caused to the assessee because of any defect in the notice. We, therefore, conclude that the Tribunal was right in holding that the defect in the notice did not invalidate the imposition of the penalty. Our answer to the second question is, therefore, in the negative. The reference is answered as indicated above. The Commissioner of Income-tax, M. P., shall pay the costs of this reference. Hearing fee Rs. 100. Questions answered in the negative - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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