9911796707
TMI Blog1971 (11) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act by the Income-tax Appellate Tribunal is : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the service of notice under section 22(2) of the Indian Income-tax Act, 1922, was invalid in law ? " A notice under section 22(2) was issued to the assessee, but on the tender being refused, the notice was affixed through the inspector in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng officer had not been examined on oath by the Income-tax Officer. On this finding the Tribunal held that the service of the notice under section 22(2) was invalid and upheld the annulment of the assessment. Learned counsel for the Commissioner of Income-tax has contended that as before the Tribunal the assessee's case was that there was non-compliance under rule 20 of Order 5, Civil Procedure C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appearance of the assessee before the Income-tax Officer in compliance of the notice under section 22(4) of the Income-tax Act. Although the assessee had contended before the Tribunal that there was non-compliance of rule 20 of Order 5, Civil Procedure Code, the assessee did not accept that there was any service made under rule 17 of Order 5. The case of the department was that service had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the words " shall " and " may ". In cases where the return under rule 17 is not verified by an affidavit of the serving officer, the rule says that the court shall examine the serving officer on oath. It is only where the affidavit of the serving officer has been filed that the rule gives a discretion to the court to examine or not the serving officer on oath. In our opinion, where the summons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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