TMI Blog1967 (8) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... s 1951-52, the previous year being Samvat year 2006. The assessee was carrying on business in tobacco, bidi leaves and other goods at Anjar in Kutch District. The original assessment on the assessee for the assessment year 1951-52 was made on January 11, 1952, on a total income of Rs. 11,284. Thereafter, the Income-tax Officer received some information, which led him to believe reasonably that the income chargeable to tax had escaped assessment so far as the assessment year 1951-52 was concerned; and after obtaining the sanction of the Commissioner of Income-tax, the Income-tax Officer reopened the assessment for the year 1951-52, by a notice issued under section 34(1)(a). This notice was issued on April 16, 1959, and was served on May 4, 1959, on Kumbhar Nameri, a part-time employee of the assessee. The assessee filed a return under protest and objected to the validity of the reopening of the assessment under section 34(1)(a). The assessee did not contest before the Income-tax Officer the validity of the service of the notice issued by the Income-tax Officer under section 22(2) read with section 34(1)(a). This return under protest was filed on June 29, 1959. The Income-tax Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In its order in paragraph 3, the Tribunal has pointed out the contention which was urged on behalf of the assessee and the contention was that, though Kumbhar Nameri was neither specifically authorized by the assessee in writing nor verbally so authorized, the filing of the return by the assessee after somehow getting the notice would not make an improperly served notice a valid notice. This contention urged before the Tribunal on behalf of the assessee was accepted by the Tribunal. The Tribunal in coming to its conclusion relied upon the decision of the Mysore High Court in C. N. Nataraj v. Fifth Income-tax Officer, City Circle II, Bangalore, and some other decisions of the Kerala High Court, where also, according to the Tribunal, a similar view was taken. A decision of the Bombay High Court directly in point does not appear to have been cited before the Tribunal. That decision is in K. C. Tiwari Sons v. Commissioner of Income-tax. There the assessee was a firm of four partners with equal shares manufacturing and selling bidis at Nasik. For the assessment year 1952-53, corresponding accounting year being S. Y. 2007, the assessee submitted a return of its total income on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that irregularity by admitting that he had received the same and having thereafter proceeded to obtain a further adjournment. For these reasons, in our opinion, the contention raised by Mr. Palkhivala that there was not a proper and valid service of notice in the present case, because the manager on whom the notice and the letter were served had no authority in writing to receive the same is unsustainable. " This judgment of the Bombay High Court was delivered before the bifurcation of the bilingual State of Bombay on May 1, 1960, and is, therefore, binding on us. Apart from the said decision being binding on us, we are in respectful agreement with the principle laid down in that decision. The mode of service which has been prescribed in section 63(1) of the Act provides for the mode of service of a notice or a requisition as if it were a summons issued by a court under the Code of Civil Procedure, 1908. If a notice or requisition has been served in a manner other than the manner laid down for the service of a summons under the Code of Civil Procedure, the question might arise for consideration whether in fact the assessee had received the notice or not and on the facts of each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e minor assessees and not in the name of their guardian. These notices were served on one K. Shivanna, a clerk of Nagappa, the father of the minor assessees ; and thereafter the question arose whether the notices were properly served on the assessees. It was on these facts that the notices issued under section 148 of the Income-tax Act of 1961 were held not to have been properly served on the assessees. At page 255 of the report it has been pointed out that the notices served on the minor assessees, which formed the basis of the proceedings under section 147 of the Act, were wholly invalid notices and the petitioners could not be assessed in pursuance of those notices. The decision in Ramnivas's case, being the earlier decision of the Bombay High Court, which was followed by the Bombay High Court in K. C. Tiwari's case, was cited before the Mysore High Court but on the facts of the case before it the Mysore High Court took the view that it was not necessary to consider the correctness of the decision of the Bombay High Court in Ramnivas's case. Thus, the view taken by the Bombay High Court in Ramnivas's case and followed in K. C. Tiwari's case has not been dissented from or has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort, the Supreme Court had set aside the judgment of the Kerala High Court in Suseela's case and remanded the case to the High Court for consideration of certain matters ; but so far as the question of issue of notice to all the legal representatives was concerned, the Supreme Court has not set aside the decision of the Kerala High Court. The Andhra Pradesh High Court has observed: " It follows, therefore, that what is required is that notices have to be served on all the legal representatives if there are more than one, unless it is shown that any one person represents the entire estate. " On this principle, as pointed out at page 112 of the report, it is obvious that the conclusion of the Kerala High Court that the notices were not properly served on all the persons who represented the estate of the deceased assessee, was correct. Thus the above three decisions, one of the Mysore High Court and two of the Kerala High Court, on which the Tribunal relied for its conclusion in the instant case, can all be distinguished. In our opinion, on the facts of the instant case, particularly in view of the fact that the return was filed by the assessee in pursuance of the notice which w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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