TMI Blog1965 (12) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The appellant No. 1 served a notice on the respondent informing her that on examination of the assessment records for the years 1953-54 to 1961-62 and other connected records, He considered that the orders of assessment passed by the said Income-tax Officer on June 14, 1961, were erroneous as they were prejudicial to the interest of revenue. In this notice various grounds for reopening the assessment orders for the above-mentioned assessment years were set out. In the returns filed by the respondent for the said years, she mentioned Basirhat address as her residence. The appellant No. 1, however, appears to have known that the respondent did not reside at the address disclosed by her but actually resided at 20, Mullick Street, Calcutta. To make sure that the respondent received the notice, the appellant No. 1 sent the notices to both the addresses, namely, Basirhat as well as No. 20 Mullick Street, Calcutta. The notice was served on the respondent by registered post as well as in accordance with the procedure prescribed by the Code of Civil Procedure. On May 1, 1963, a notice was served on the respondent at 20, Mullick Street, Calcutta, and on May 2, 1963, the notice was serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Order No. 281 of 1963 (Kalawati Devi Harlalka v. Commissioner of Income-tax). The question of violation of the rules of natural justice was also considered by this Bench in the judgment in Appeal from Original Order No. 264 of 1963 (Rampyari Devi Saraogi v. Commissioner of Income-tax). But the facts in this appeal being somewhat different, I shall proceed to examine the rival contentions of the learned counsel for the parties. Mr. G. Mitter, learned counsel for the appellants, contended that Banerjee J. was wrong in upholding the respondent's contention that rules of natural justice had been violated, as adequate opportunity was not given to the respondent to make representations contemplated by section 33B of the Act. He argued that the notice issued by the appellant No. 1 under section 33B(1) of the Act was served on the respondent as required by law. Section 63 of the Income-tax Act, 1922, and section 282 of the Income-tax Act, 1961, provided that the notice might be served on the person named therein either by post or as if it were a summons issued by a court under the Code of Civil Procedure. It was argued that the address declared by the respondent in the return was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition. He argued that the only grievance made by the respondent regarding the notice was that the time allowed to her for making representations was inadequate. This grievance has been made in ground No. (ii) under paragraph 5 of the petition. It was argued that it was true that in the said ground (ii) the respondent alleged that, in passing the impugned order, the appellant No. 1 violated the principles of natural justice and no opportunity or no adequate opportunity was given to the respondent of being heard. This, Mr. Mitter argued, was entirely different from alleging that service of the notice by affixing was invalid for not being according to law. Mr. Mitter further argued that, since the respondent's case was that the said notice was not lawfully served upon her, it was for her to make out the case that the service of notice by affixing the same was bad. No such case, it was argued, had been made out by the respondent in the petition. Mr. Mitter next contended that the trial court was wrong in holding that the service of notice at Basirhat did not amount to service under Order V, rule 17, of the Code of Civil Procedure. It was argued that the trial court was also wrong i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e observations of Das Gupta C. J. in Gopiram Agarwalla v. 1st Additional Income-tax Officer, on which reliance was placed by the trial court, had no application to the facts of this case. He argued that, although the Calcutta amendment of rule 17, Order V, of the Code, was taken note of, Das Gupta C. J. did not give effect to or apply the amendment in Gopiram Agarwalla's case. It was argued that, so far as this court is concerned, the validity of a service of summons under Order V, rule 17, of the Code, must be tested and judged according to the terms of the amended rule and not the rule as it stands without the amendment. It was also argued that in Gopiram Agarwalla's case, reliance was placed on a decision of the Bombay High Court in Sakharam Bhaskar v. Padmakar Mahadeo and also a decision of the Madras High Court in Subramania Pillai v. Subramania Ayyar. Both these cases were decided upon the terms of rule 17, Order V, of the Code, as it stands without the Calcutta amendment. It is not open to this court, Mr. Mitter argued, to condemn the service of a notice on the ground that the terms of rule 17, as it stands without the Calcutta amendment, have not been complied with. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful attempts, should be regarded as valid service after exercise of reasonable diligence. We are in agreement with the views expressed by G. K. Mitter J., but we must notice, however, that the question of the Calcutta amendment was neither raised nor discussed in that case. Mr. A. C. Bhabra, learned counsel for the respondent, contended that the service of the notice on the respondent by affixing at Basirhat and also at the Mullick Street address must be held to be bad, as such service was not in compliance with the terms of Order V, rule 17, of the Code. He argued that the proceedings on the basis of the service of the notice at Bidasar, Rajasthan, must be held to be bad as such service gave only a day's time to the respondent to make her representation and, therefore, it must be held that, so far as, the service at Bidasar was concerned, no opportunity of being heard was given to the respondent. Regarding the service at Basirhat, Mr. Bhabra argued, the return of the service, as set out by Banerjee J. in his judgment, showed that two attempts were made to contact the respondent on May 2, 1963, and May 3, 1963, and these attempts having failed, service was made by affixing on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to a decision of the Supreme Court in Sha Mulchand Co. Ltd. v. Jawahar Mills Ltd. In that case the question was if the amendment of articles 158 and 178 of the Limitation Act, 1908, could have the effect of altering the meaning which article 181 of the Limitation Act, 1908, had acquired by reason of a long series of decisions. To my mind this decision is of no assistance to Mr. Bhabra as it throws no light on the question with which we are concerned in this appeal, namely, whether the local amendment to the Code of Civil Procedure should be given effect to when some act is required to be performed under the terms of the Code by a different statute, namely, the Income-tax Act, 1922. The next case relied upon by Mr. Bhabra is a decision of this court in Tripura Modern Bank Ltd. v. Bansen Co., in which Sinha J. considered the effect of the Calcutta amendment to rule 17 of Order V of the Code and held that a mere statement that the process-server went on three occasions to the residence of the defendant and not having found him there or any authorised agent served the summons on the third occasion by affixing, was not sufficient to justify service by affixing. This decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case now before us. In M. O. Thomas's case the service by affixing at Trichur was made after only one attempt as the assessee was not available and not even a second attempt was made to find the assessee at Trichur and the service at Kozhikode by affixing was made on the ground stated in the process-server's report that the assessee was permanently residing at Trichur. In the second case, namely, Commissioner of Income-tax v. Thayaballi Mulla Jeevaji Kapasi the notice was served, firstly, on the son of the assessee, and, thereafter, another notice was issued which was served by affixing at the business premises of the assessee as he was away at Bombay or Ceylon. In this case also the court considered the validity of service of the notice under rule 17 of Order V, without the amendment. Finally, in both the two cases it was held that service of the notice under section 34 of the Act was a condition precedent to the proceeding under that section and the assessment proceeding was held to be bad as the condition precedent was not fulfilled. It is to be noticed that the court did not consider the effect of the amendment to rule 17 of Order V of the Act with which we are concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be gone into before us. In support of this contention Mr. Bhabra relied upon two decisions of the Supreme Court, namely, Nagubai Ammal v. B. Shama Rao and Kunju Kesavan v. M. M. Philip. In our opinion this contention of Mr. Bhabra is well founded. Even though there was no challenge to the validity of the service of the notice in the petition, the argument before the trial court proceeded entirely on the sufficiency or validity of the service of the notice and indeed that was the only matter that was canvassed before the trial court. That being so we cannot accept Mr. Mitter's contention that it was not open to the respondent to challenge the validity of the notice because no such challenge was laid in the petition. Mr. Mitter sought to repel Mr. Bhabra's contention that the Calcutta amendment to rule 17 of Order V of the Code could not be given effect to and should be ignored in considering the validity of the service by relying upon section 8(1) of the General Clauses Act, 1897, which is as follows : " 8(1) Where this Act or any Central Act or Regulation made after the commencement of this Act repeals and reenacts, with or without modification, any provision of a former en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal Non-Agricultural Tenancy Act, 1949, was not made till September 18, 1953, but on that date the land had already become a part of Calcutta by reason of the notification mentioned above. Relying upon section 8 of the General Clauses Act and section 10 of the Bengal General Clauses Act, Chakravarty C.J. held that, as the Calcutta Municipal Act, 1923, had been repealed and re-enacted as the Calcutta Municipal Act, 1951, reference to the definition of " Calcutta " given in section 1(2)(a) of the West Bengal Non-Agricultural Tenancy Act in terms of the definition given in the Calcutta Municipal Act, 1923, must be considered as a definition in terms of that given by the Calcutta Municipal Act, 1951. Mr. Mitter also relied upon a decision of the Supreme Court in National Sewing Thread Co. Ltd. v. James Chadwick Bros. Ltd. In that case the question was whether the repeal of section 108 of the Government of India Act, 1915, and the re-enactment of the same provisions in section 223 of the Government of India Act, 1935, and later on in article 225 of the Constitution of India, the power conferred on the High Court under section 108 of the Government of India Act, 1915, which has been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing found at his address within a reasonable time, and there is no agent empowered to accept service, nor any other person on whom service can be effected, the serving officer shall affix a copy of the summons. Therefore the service of the notice on the respondent by affixing can be upheld, if she was absent from her residence and the serving officer was satisfied that there was no likelihood of her being found at the residence within a reasonable time. So far as the service at Basirhat is concerned, the serving officer attempted to contact the respondent at the address on May 2, 1963, between 1 and 3 p.m., and not having found her there, he had gone to that same address on May 3, 1963, between the hours 10 a. m. and 2 p. m. and having for the second time failed to serve the notice personally, the service at Basirhat was made by affixing on May 3, 1963. So far as the service at No. 20 Mullick Street, Calcutta, is concerned, it appears from the affidavit-in-opposition affirmed by Sumermal Bachhawat on August 23, 1963, that a postal peon brought a registered cover for the respondent some time in the first week of May, 1963, and a representative of the income-tax department also brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be considered in judging the validity of the service of the notice. Mr. Bhabra also relied upon a decision of the Madras High Court in Myitkyina Trading Depot v. Deputy Tahsildar, Paramakudi, in which a notice was issued in proceedings under section 34 of the Act. This notice was served by affixing as it was returned from the Madras office which was closed and it could not be served at the residence of the partners of the firm as they were at Rangoon. It was held that the service was not valid. This decision again is of no assistance to Mr. Bhabra as it was a proceeding under section 34 of the Act and, secondly, the court did not consider the validity of the service in the light of the Calcutta amendment to rule 17 of Order V of the Code. Mr. Bhabra contended, though somewhat feebly, that the service at No. 20, Mullick Street, was bad as that was not the residence of the respondent. He argued that the residence of the respondent was at Basirhat and, therefore, the service of the notice at No. 20, Mullick Street, could not, in any event, be held to be a good service. We are not impressed by this contention of Mr. Bhabra. There was ample material on the records for sending th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and the department's representative were informed that she was staying at Rajasthan. They were not told of any possibility of her return within a reasonable time. In these circumstances, the notice was served by affixing, and such service cannot be challenged, having regard to the Calcutta amendment to rule 17 of Order V of the Code. There is, however, in my opinion, a larger question involved in the matter of service of notice under section 33B of the Act. That section does not require a notice to be issued and served on an assessee, as is required by section 34 of the Act. All that section 33B requires is that the assessee should be given an opportunity of being heard. That requirement, in our view, is entirely different from the requirement of a notice under section 34 of the Act which has been held to be a condition precedent to the jurisdiction of the Income-tax Officer to reopen an assessment order already made. The notice contemplated by section 34 of the Act is the foundation of the jurisdiction of the Income-tax Officer. It is a statutory notice on the service of which alone the Income-tax Officer can assume jurisdiction to reopen an assessment order already made. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The next contention of the learned counsel for the appellant was that the Income-tax Act, 1922, was a comprehensive code which provided an alternative remedy to the respondent. Such remedy was available to the respondent, and would have been more appropriate, because questions of fact regarding the service of the notice were involved, and such questions could have been gone into in appropriate proceedings under the Act, which should have been pursued. It was argued that sub-section (3) of section 33B of the Act provided for an appeal to the Tribunal, if the assessee objected to an order passed by the Commissioner under section 33B(1). No reasons had been furnished by the respondent as to why this alternative remedy had not been pursued. Mr. Mitter argued that such an alternative remedy being available to the appellant, the discretionary relief in the special jurisdiction of the court under article 226 of the Constitution should not be granted to the respondent. In support of this contention Mr. Mitter relied upon the decision of the Supreme Court in Shivram Poddar v. Income-tax Officer in which the question of alternative remedy provided by the Income-tax Act was discussed as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon these decisions Mr. Mitter argued that the respondent was not entitled to any relief in the writ petition as she had an adequate alternative remedy under the statute. This alternative remedy, it was argued, would have been more appropriate, having regard to the nature of the grievance made by the respondent in her petition. Mr. Bhabra, on the other hand, contended that the mere fact that his client had an alternative remedy did not debar her from seeking the remedy available to her under the writ jurisdiction of this court, nor did such alternative remedy take away the jurisdiction of this court to issue appropriate writs or orders if grounds existed for the same. In our opinion Mr. Mitter's contentions on this aspect of the case are well-founded. It is now well settled that if a person has an alternative remedy, although such remedy does not take away the jurisdiction of the court to issue appropriate writs, the court should decline to interfere with the order of a tribunal unless the particular facts of the case justify such interference. It is to be noticed that no explanation or reason has been set forth by the respondent in the petition, nor has any reason been adva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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