TMI Blog2006 (3) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... dy of appeal. When the facts of this case clearly shows that there is failure of principles of natural justice and the petitioner has made out a strong case, I am of the considered view that this court should invoke the extraordinary jurisdiction under article 226 of the Constitution of India. Accordingly, without going into the merits of the case on the sole ground that no proper notice has been served on the petitioner before passing the impugned proceedings and there is failure of the principles of natural justice, the impugned proceedings of the respondent is quashed and the writ petition is allowed. The petitioner is directed to file its further objections, if any, before the first respondent, within a period of four weeks from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt order at the place of business which is not functional. The above is evidenced by the fact that the recovery notice now issued by the second respondent has been served at the residential address of the partner of the petitioner. 4. A counter-affidavit has been filed by the first respondent, wherein it is stated as follows: ...A final opportunity was given to the petitioner by issue of notice under section 143(2) on December 11, 2003, posting the case for hearing on December 18, 2003, and the notice was served by affixture at the last known address of the petitioner. There was no response from the petitioner to this notice also. But the petitioner's representative in their letter dated March 27, 2003, stated that 'despite our best ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Any such notice or requisition may be addressed- (a) in the case of a firm or a Hindu undivided family, to any member of the firm or to the manager or any adult member of the family; Learned standing counsel submitted that the first respondent by virtue of the provisions contained in section 282 of the Income-tax Act, has caused service of notice by affixture. Learned counsel also drew my attention to Order 5, rule 20, of the Civil Procedure Code, which reads as follows: 20. Substituted service.- (1) Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. 8. Here in this case, admittedly, the first respondent has not recorded any such satisfaction in his order before causing service of notice by affixture. It is also pertinent to point out that as per Order 5, rule 20(1A), the first respondent could have ordered paper publication if the address of the petitioner was not known or same could not be furnished by his representative. But, that too has not been done in this case. When an order of assessment levying tax is being passed, it is incumbent upon the first respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy of appeal. When the facts of this case clearly shows that there is failure of principles of natural justice and the petitioner has made out a strong case, I am of the considered view that this court should invoke the extraordinary jurisdiction under article 226 of the Constitution of India. 11. Finally, learned senior standing counsel for the Income-tax Department submitted that without going into the merits of the case, a direction may be issued to the first respondent to assess the assessment proceedings afresh. She further submitted that time limits may be fixed for further objections by the petitioner and for concluding assessment proceedings. Accordingly, without going into the merits of the case on the sole ground that no prope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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