TMI Blog1993 (4) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that as no valid notice in terms of section 143(2) was served upon the assessee, the order passed by the Income-tax Officer was liable to be set aside. The Appellate Commissioner dismissed the appeal of the assessee which forced him to approach the Income-tax Appellate Tribunal who, vide their order dated December 90, 1980, also dismissed his appeal but in terms of order dated July 20, 1991, referred the following question for the opinion of this court : "Whether, on the facts and in the circumstances of the case, the service of notice under section 143(2), was valid We have heard learned counsel for the parties and perused the record. Mr. Thakur, learned counsel appearing for the Revenue, has submitted that the reference being misconceived was liable to be rejected without giving any opinion as, according to him, the point raised by the assessee was based upon a pure question of fact. It has, however, been contended on behalf of the assessee that as the service of notice was not effected in accordance with the provisions of law as incorporated in section 143(2) of the Income-tax Act (hereinafter referred to as "the Act"), the whole of the proceedings initiated there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Procedure Code. Under rule 9 of Order V, summons can be served upon the defendant if he resides within the jurisdiction of the court issuing summons or upon his agent residing within that jurisdiction provided such an agent is empowered to accept the service of the summons. Where, in any proceedings, the person summoned cannot be found and has no agent empowered to accept the service of the summons, the same may be served on any adult male member of the family who is residing with him. Under rule 18, the serving officer is obliged in all cases in which summons have been served to endorse or annex or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner In which the summonses were served and the name and address of the person, Identifying the person served and witnessing the delivery or tender of the summons. Substituted service is authorised under the circumstances and in the manner specified under Order V, rule 20, Civil Procedure Code. The object of issuing the notice of summons is to intimate the concerned to appear and answer the queries or the questions sought to be clarified by any court or authority. As serious co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of any reassessment made under section 147. If no notice is issued or if the notice issued is shown to be invalid, then the proceedings taken by the Income-tax Officer without a notice or in pursuance of an invalid notice would be illegal and void . . . ..." A Division Bench of this court in the case of B. Johar Forest Co. v. CIT [1973] J K LR 412, held that even the acquisition of knowledge in regard to the issuance of notice under the Act cannot be considered to be equivalent to or a substitute for the service of the notice on the assessee. The notice or requisition must be served in one of the modes mentioned in the section before an assessee can be considered to be in default. In that case, one D. B. Thappa was held to be the manager of the assessee firm during the relevant period and service of notice on him was held to be not a service on the assessee. The onus of proving the service of a notice is upon the Revenue as was held in Fatehchand Agarwal v. CWT [1974] 97 ITR 701 (Orissa). In the facts and circumstances of that case, it was held by the Orissa High Court (at page 702) : "The short question for consideration is whether Basudeb had any authority to receive t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hury [1971] 82 ITR 936 (Cal), which, however, cannot be made a basis to reject the plea of the assessee, because in that case, it was not an issue whether the accountant of the assessee was a duly authorised agent or not and, on facts, it was found that the accountant of the assessee was authorised by the assessee to represent him in connection with the wealth-tax assessment proceedings but was not authorised to accept notices. However, after the service of notice, the assessee duly filed returns in answer to the notices and the reassessment orders were passed. No objection was raised regarding the authority of the accountant to accept service of the notice. It was found that (headnote): "there was proper service, and that, even on the footing that there was no proper service, the assessee having filed the returns without objections had waived any irregularities in service.... No point was taken that the assessee was not properly or validly served. In the original grounds taken before the Appellate Assistant Commissioner also this point was not taken. Taking the cumulative effect of all these factors together, it appeared that there was sufficient evidence to establish that P had b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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