TMI Blog1967 (3) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the points raised by the appellant except the point as to reasonable opportunity were covered by a decision of this court in Kalawati Debi Haralalka v. Commissioner of Income-tax and did not require any fresh consideration. These points were all summarily rejected by the learned judge. The only point that the learned judge seriously considered and then decided against the appellant-petitioner was the point as to reasonable opportunity. At the time of hearing of this appeal Mr. A. K. Sen, appearing on behalf of the appellant, also confined himself to the point of reasonable opportunity. Therefore, in relating the facts and circumstances of this case we confine ourselves only to those which are relevant for consideration of the point of reasonable opportunity. On October 19, 1963, the Commissioner of Income-tax (hereinafter referred to as the Commissioner) issued a notice addressed to the appellant concerning a proposed revision under section 33B of the Indian Income-tax Act of the assessments of the appellant-petitioner for the years 1959-60 to 1961-62. In the letter constituting this notice it is stated that according to the Commissioner the orders of assessment passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here and gathered from them that Mr. Ramendra Nath Ghosh, a member of their family who is usually available there, had just then left for Calcutta and that he would not turn up during the rest of the day. They have however asked me to call on Mr. Ghosh tomorrow. Accordingly, I have fixed up a time and have left a slip, requesting Mr. Ghosh to wait for me. Sd./- H. P. Neogi, 21-10-63. Seen report. Re : Inspector will please try to serve the notices tomorrow on Sree Ramendra Nath Ghosh Ors., failing which the notices should be served by affixation. Sd./- Illegible, 21-10-63. " Report dated 22nd October, 1963. " Reg : Sri Ramendra Nath Ghosh for and on behalf of Sailendra Nath Ghosh Ors. of 2, G. T. Road, Ballykhal, Howrah. Sm. Sibani Rani Ghosh, 2, G. T. Road, Ballykhal, Howrah. Sm. Rashmoni Ghosh, 2, G. T. Road, Ballykhal, Howrah. Sri Ramendra Nath Ghosh, 2, G. T. Road, Ballykhal, Howrah. Today also I had been to the above address again but unfortunately Mr. Ramendra Nath Ghosh was not available at the appointed time. However, I contacted the said persons whom I saw there yesterday. Enquired about Mr. Ramendra Nath Ghosh, they informed that Mr. Ghosh has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by a letter dated 19th October, 1963, for giving him an opportunity of being heard today, i.e., on 2nd November, 1963. 2. In response to this notice nobody has attended in person nor any written communication has been received so far, as served by the Inspector by affixation. I am satisfied that the notice has been served properly and therefore proceed to pass order ex parte on the basis of the merits of the case. As the points involved in all the assessments are common, they are disposed of by a consolidated order. " It will be noticed that the Commissioner was satisfied that proper service of the notice had been effected and that on the basis of this satisfaction be passed an order ex parte. The Commissioner cancelled the previous assessments of the petitioner under section 33B of the Income-tax Act and directed fresh assessments after proper enquiries and investigation. By a letter dated 24th January, 1964, addressed by the appellant's solicitors, Messrs. Mukherjee Biswas, to the Commissioner, a protest was lodged against this order dated 2nd November, 1963, It was stated in that letter that the notice to the appellant about a hearing on 2nd November, 1963, had in fact b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed and all necessary fees were properly paid. I crave leave to refer to the receipt of the postal authorities to that effect. It appears that the said registered letters were received by the assessee on the 22nd November, 1963. In view of the delay in receiving the said letters the income-tax department made enquiries of the postal authorities and a copy of the letter written to the postal authorities and the reply from them are annexed herewith in a bundle and marked with the letter 'A'. It appears that the assessee was avoiding service. 3. I further state that attempt was made to serve on Ramendra Nath Ghosh at No. 2, Grand Trunk Road, Ballykhal, Howrah. The Inspector went on the 21st October, 1963, and as he could not find the petitioner, made a report to the Income-tax Officer. The Income-tax Officer gave certain directions for the purpose of service. Thereafter, the service was effected. The report made by Sri H. P. Neogi, Inspector, who went to serve as well as the order of the Income-tax Officer dated 21st October, 1963, and the report of the process-server are annexed herewith in a bundle and marked with the letter 'B'." It will be noticed that the income-tax author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Dwijendra Nath Banerjee, flatly contradicted the story of the income-tax authorities that the registered letters had been served on him on the 22nd November, 1963. He insisted that the letters had been delivered to him on 18th November, 1963. He takes exception to the fact that the correspondence with the postal authorities on the basis of which Dwijendra Nath Banerjee made his affidavit had been available to the income-tax authorities from long before 28th April, 1964, when they filed their first affidavit-in-opposition and yet the income-tax authorities had made no mention of these alleged facts in their first affidavit. The petitioner made several positive statements in his affidavit which I prefer to set out in extenso because ultimately the income-tax authorities had to admit most of the facts alleged by the petitioner. The facts are stated in paragraph 4 of the appellant's affidavit of 29th January, 1965, which was in the following terms : " 4. With further reference to paragraph 2 of the affidavit I say the allegations in the letter dated 10th March, 1964, purported to have been written by the sub-postmaster, Uttarpara, to the Commissioner of Income-tax, West Bengal III ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to him at 47, Banerjee Para Street, Uttarpara, Hooghly. It appears that the said registered letters Nos. 170, 171 and 177 were served upon the assessee through the same Post Office in Midnapore on or about 18th November, 1963, and the acknowledgement receipt of the registered letters came back to this office. " In the affidavit there are references to various other letters but they are really connected with analogous proceedings in respect of some of the other relations of the petitioner with which we are not concerned in this appeal. Annexed to this affidavit there is a letter dated 15th February, 1965, from the Additional Income-tax Commissioner, West Bengal III, to sub-postmaster, Uttarpara, as well as a letter from sub-postmaster, Uttarpara, to the Income-tax Commissioner. In the letter to the sub-postmaster, Uttarpara, the Additional Income-tax Commissioner writes with reference to an earlier letter dated 10th March, 1964, from the said sub-postmaster : " In para. 2 of your letter you stated that the registered covers referred in our reference were served on the addressee on 22nd November, 1963. This is not correct. The acknowledgements subsequently received show that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deliver the letters to him is not acceptable ; (vi) The official version of the post office contained in their letter of March 10, 1964, was more acceptable and according to that story the letters were first kept in deposit for seven days and later re-directed as per instructions of the inmates of the house ; (vii) The delay in service of the registered notices was " caused or manipulated by the petitioner himself " so that the petitioner cannot be heard to complain about this delay ; (viii) The petitioner when he left his residence for another place did not make any arrangement for receipt of notices in his absence. Therefore, the petitioner himself created a situation in which the delivery was not possible ; (ix) The income-tax department, therefore, offered proper opportunity of being heard to the petitioner but the petitioner by his own conduct could not avail of the opportunity ; (x) The notice sent to No. 2, G. T. Road had been served by affixation ; (xi) The serving officer had gone there " at a reasonable time " ; (xii) The serving officer, when he affixed the notice on the second day at No. 2, G. T. Road after he had returned to that place for serving th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mewhere in Midnapore. There cannot be the slightest doubt that the letter of 10th March, 1964, is based on complete misapprehensions and the value of that letter as a piece of evidence is just nil and yet the learned judge relied on that letter and found the official version of the post office contained in that letter to be more acceptable. With great respect, we find it impossible to subscribe to the learned judge's findings on this point. Mr. Gouri Mitter, appearing for the respondents, with his usual fairness admitted that he could neither rely on nor support the learned judge's judgment on this point. Indeed, Mr. Mitter conceded that, so far as the service of the notices by registered post is concerned, the respondents have no case at all. Those notices were unquestionably served long after the order under section 33B of the Income-tax Act, had been passed. The facts on the basis of which the respondents had at one stage claimed that the appellant was avoiding service are completely wrong facts and both the postal authorities and the respondents have abandoned those facts. Banerjee J. was, therefore, obviously wrong in accepting a claim and a contention which was jettisoned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ware of the alleged attempts made to serve a notice upon me at No. 2, Grand Trunk Road, Ballykhal, Howrah. In any event such alleged attempts could not have been successful inasmuch as Bally Pug Mill Works Private Ltd., was at the material time closed on account of voluntary liquidation of the said company, and that the respondents had due and proper notice thereof would be apparent from the assessment order made on the said Bally Pug Mill Works Private Ltd., on 24th February, 1964. I crave reference to the same. I am not aware as to whether the inspector went to No. 2, Grand Trunk Road, Ballykhal, Howrah, on 21st October 1963. and I do not admit the same. As I was not at No. 2, Grand Trunk Road, Ballykhal, Howrah, on 21st October, 1963, it is possible that the said Inspector did not find me. I do not admit the correctness of the said alleged purported report on 21st October, 1963. The said alleged report in any event is vague inasmuch as the names of the two persons contacted at No. 2. Grand Trunk Road, Bally, khal. Howrah, had not been given and the allegations in the said report that I had just left Calcutta and that I would not return for the rest of the day are false, inasmu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the whole case of the income-tax authorities regarding service of the notice by affixation must be taken as a case based on hearsay of the worst description. The persons with whom the inspector had a conversation are not only not named but their connection with the appellant is not mentioned and what is more significant is, as Mr. Sen points out, that in the affidavit of 22nd October, 1963, there is no mention about these two persons. The reports dated 21st October and 22nd October, 1963, standing by themselves, cannot in any case be treated as evidence. Even if the affidavit be taken as evidence the whole story about the two unnamed relations of Ramendra Nath Ghosh does not appear there at all. Mr. Sen contends that on these materials the learned judge should not have come to the finding that the service of the notice by affixation had been done legally. Indeed, Mr. Sen contends that the learned judge should not have believed the story of inspector Neogi at all. There are some controversies also as to whether No. 2, Grand Trunk Road address was a disclosed address of the appellant. Mr. Sen sought to rely on a letter dated 10th October, 1963, alleged to have been addressed by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se reports and affidavit regarding the service of notice by affixation are already on record. We made it clear that the examination of these witnesses were to be confined to the points of : (i) the alleged service of the notice by affixation on the assessee on 22nd October, 1963, and (ii) the alleged receipt of the letter dated 10th October, 1963, by the income-tax authorities. We gave an opportunity to both the parties to disclose, if they wished to do so, any further documents in respect of the evidence that was going to be recorded. Thereafter, the three witnesses named above appeared and gave evidence before us. They were first examined by Mr. Mukherjee, counsel for the respondents, and then cross-examined by Mr. Sen. It is not necessary for us to give any elaborate account of the evidence of these witnesses. It will be sufficient if we set out the net results of this evidence. Neogi said that when he went to serve the notice at No. 2, Grand Trunk Road, he found that the premises looked like an office. He knew this office to be the office of Bally Pug Mills. He found two men there who described the appellant as a member of their family. He asked them for their names but they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Para Road, Uttarpara. Narasingham said that he had not informed the Income-tax Officer, head quarters, about the place where affixation was to be made. He did not ask them to affix at No. 2, Grand Trunk Road. He had not given any instruction to Neogi. If anybody had asked him about the residence of the appellant Ramendra Nath Ghosh, he could have told him the address but nobody asked him. Narasingham admitted that, if a notice was to be served by affixation, it should have been served at the residence. The relevant questions and answers are so important that I set them out verbatim : " Q. 89 : Where according to you with all fairness notice is to be served by affixation---you are a responsible Income-tax Officer---at the office or at the residence ?/ At the residence. Q. 90: Would you serve him by affixation at the business premises ?/ Perhaps not. Q. 91 : If you were told that the inspector has been informed by the people that the man has left Bally office and would not be coming within one month, would you serve it by affixation or would you ask and enquire for his residence ?/ If I am given the work of service I may try at every place. Q. 92 : Would you agree that in fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no likelihood of his coming to No. 2, Grand Trunk Road ; (iii) The income-tax authorities knew the residential address of the appellant to be No. 47, Banerjee Para Road ; (iv) The residential address had been supplied to the authorities who were in charge of the proceedings under section 33B by Narasingham ; (v) The affixation was made at No. 2, Grand Trunk Road, without any attempt to ascertain whether the appellant was at his residence ; (vi) No attempt at all was made to serve the notice either personally or by affixation at the residence. The only attempt was made at the office address ; (vii) Ordinarily, the practice of the income-tax authorities is to serve such notices by affixation at the residential address of an assessee. Mr. Gouri Mitter realised that his case must stand or fall with the evidence of H. P. Neogi. He could not, however, argue that Neogi's evidence was completely satisfactory. So, with his usual persuasiveness Mr. Mitter asked us to accept the evidence of Neogi in spite of its short-comings on the ground that it was not inconsistent with his affidavit of October 22, 1963. We find it impossible, however, to rely on the evidence of Neogi. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction by the Commissioner. But what exactly is the meaning of " an opportunity of being heard " ? Does it require the service of a written notice ? Mr. Sen contended that this opportunity could be given only by serving a written notice on the assessee and this notice is to be served either by post or as if it were a summons issued by court under the Code of Civil Procedure, 1908. Mr. Sen developed his argument in the following way. The requirement of giving an opportunity of being heard must be construed to imply an obligation of giving a notice to the assessee of the contemplated exercise of jurisdiction under section 33B by the Commissioner. Such notice must be served in the way indicated in section 63 of the Indian Income-tax Act, 1922, regarding service of notices. Sub-section (1) of section 63 deals with service of notice upon an individual and is in the following terms : " 63. (1) 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. " Since in this case the notices could not admittedly be served on the petitioner by post, the only other way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstances 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. " On the facts of this case it cannot be said that the defendant or his agent refused to sign the acknowledgment. It does not also appear that the two unnamed persons whom H. P. Neogi is supposed to have met at No. 2, Grand Trunk Road, Ballykhal, Howrah, had been asked to accept the service. Indeed, it does not appear that they were either agents or such persons as could accept the service on behalf of the assessee. In any case, since the income-tax inspector does not say that they refused to accept the service, there has not been a strict compliance with the requirements of Order 5, rule 17 of the Code of Civil Procedure. Even if all these conditions which I have just mentioned were there, all that the serving officer cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledge of the Commissioner's proposed revision on a particular date and also of the grounds on which such revision was proposed. On the facts of the instant case it is impossible for the income-tax department to contend that the assessee must have had knowledge about the proceedings before the Commissioner. If it be argued that though section 63(1) of the Act read with Order 5, rule 17, of the Code of Civil Procedure are not directly applicable to proceedings under section 33B of the Income-tax Act, they furnish a test of reasonable notice, even then it is impossible to escape the conclusion, that no reasonable opportunity had been given to the assessee. Two facts would destroy any suggestion of reasonableness, namely, the fact that notice was not affixed or sought to be served by the inspector of the income-tax department at the assessee's residence in spite of the fact that the actual residence of the assessee was known to the department and, secondly, the fact that a notice was sent to and affixed at an office of a company which was already in liquidation. Though the learned judge rejected the assessee's petition mainly on the ground that the assessee, according to his Lordship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to a fair conclusion on the question. In the instant case, the Commissioner passed the order on 2nd November, 1963, in the absence of the assessee without in fact having notified the assessee of his intended action. It is true that there was some urgency about this proceedings in view of the fact that the time for making an order under section 33B was due to expire very soon but even so, the last date for passing such an order was 28th November, 1963. Therefore, the Commissioner could have reasonably waited for some time before passing an ex parte order against the assessee. We must take notice of another argument advanced by Mr. Gouri Mitter on behalf of the respondents. Mr. Mitter argued that since the Income-tax Act is a complete code and since there was an alternative remedy open to the assessee by way of appeal against the order of the Commissioner, no relief under the writ jurisdiction of this court would be available to the petitioner. Mr. Mitter invoked the authority of the Supreme Court and cited two decisions. In the first instance, Mr. Mitter relied on the case of C. A. Abraham v. Income-tax Officer, Kottayam, where the Supreme Court held as follows : " The Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se two cases. The question as to how far the existence of an alternative remedy is a bar to an exercise of the extraordinary jurisdiction by the High Court has come up before the Supreme Court on many occasions and the Supreme Court has made it quite clear on such occasions that the mere existence of an alternative remedy does not bar the jurisdiction of the High Court to issue the writs or grant reliefs to petitioners in their writ jurisdiction. Thus, in the State of U.P. v. Mohammad Nook, Das C. J. considered this point and formulated the principles which should be followed in the matter of issue of writs where there are alternative remedies. Das C. J. observed as follows : " ..... it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute, (Halsbury's Laws of England, 3rd edn., vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasinally come to our notice. The superior court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that. " The Supreme Court has consistently followed this principle and in cases where they have found that a tribunal has acted contrary to the principles of natural justice, the Supreme Court has always unhesitatingly set aside the order passed by such tribunal. In the case of Mahadayal Premchandra v. Commercial Tax Officer, Calcutta the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by pointing out that Shah J. in his judgment in Shivram Poddar v. Income-tax Officer, Central Circle II, Calcutta, has himself mentioned two exceptions where writs may be permitted, namely, " when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess ". Mr. Mitter sought to argue that the exceptions mentioned by Shah J. do not include the cases where rules of natural justice have been infringed and, therefore, the third exception should be taken as automatically ruled out by the judgment of Shah J. We do not read Shah J.'s judgment in that light. We are not inclined to say that Shah J. wanted to abrogate the principles laid down in the case of State of U. P. v. Mohammad Nooh, which was a judgment delivered by a Bench presided over by S. R. Das C. J. and consisting of five judges one of whom was Sarkar J., who was also a party to Shah J.'s judgment in Shivram Poddar v. Income-tax Officer, Central Circle II, Calcutta. We have no doubt in our mind that the exceptions indicated by Shah J. are only illustrative and not exhaustive. In any event, contravention of the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
