TMI Blog1967 (1) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on that date (30th March, 1964). On appeal the Appellate Assistant Commissioner upheld the order of assessment. One of the important points taken up before him was that the actual notice informing the assessee that assessment for 1949-50 was being reopened was served on him after the 1st April, 1958, more than eight years after the end of the assessment year, namely, after the 31st March, 1950, and that, consequently, the reopening of the assessment was barred by limitation. This was rejected by the Appellate Assistant Commissioner, who held that the notice was served on him on the 25th March, 1958, and also on the 29th March, 1958. The same point was urged before the Income-tax Tribunal which upheld the view taken by the Appellate Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 29th March, 1958, but he could not meet him. Then he hung the notice at a conspicuous part of the house of the petitioner at Madhipura on the 29th March, 1958, in the presence of witnesses. The Income-tax Officer examined the process-server on oath and also examined two of the witnesses and then held that the notice was duly served on the petitioner on the 29th March, 1958, and that view has been upheld by all the superior income-tax authorities. There was also an attempt to serve the process by registered post which was sent to the assessee on the 24th March, 1958. But that was received on the 3rd April, 1958, after the expiry of the period of limitation; hence service by registered post need not be further discussed there. Mr. Tarke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept service of the summons on his behalf (omitting immaterial portions) the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house of the defendant. It will be noticed that the exercise of due and reasonable diligence with a view to trace out the party arises only when he was not found by the process-server. If, however, he was met by the process-server and he refused to accept the notice when tendered by the process-server it is sufficient if the process-server affixes a copy of the summons at a conspicuous part of his house. Here the process-server met the assessee on the 25th March, 1958, and tendered the notice which was refused. It is true that he returned to Purnea thereafter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th March, 1958, and 29th March, 1958, served the notice by affixture. Mr. Tarkeshwar Prasad, however, urged that in view of the conduct of the process-server in returning to Purnea for instructions and again going to Madhipura on the 28th March, 1958, it must be held that the affixture of the notice was not because the assessee refused to accept notice on the 25th March, but because he could not be found and that consequently the latter part of rule 17 of Order 5 of the Code of Civil Procedure would apply. In my opinion, this argument cannot be accepted in the absence of any evidence as to what happened when the process-server returned to Purnea. The assessee could easily have summoned the process-server for cross-examination before any o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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