TMI Blog1976 (12) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... file any return and the assessments for the said years were made at nil under section 23(4) of the Indian Income-tax Act, 1922. For the assessment year 1944-45 and subsequent years up to 1948-49, no action had been taken for the respondent's assessment under the Act. For the assessment year 1949-50, the respondent's assessment file was closed on the basis of the report submitted by an inspector of income-tax regarding the financial position of the respondent and, thereafter, no further action was taken for the assessment of the respondent up to the assessment year 1953-54. But it appeared to the revenue that the income of the respondent had escaped assessment to the failure and/or omission on the part of the respondent to disclose fully or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es had not been served upon the respondent. For the assessment years 1952-53 and 1954-55, the notices under section 34(1)(a) of the Act were served by registered post on 5th April, 1961, and on 25th January, 1961, respectively. In view of the fact that such service by registered post had not been specifically denied by the respondent in his affidavit-in-reply, D. Basu J., before whom this writ application came up for hearing, accepted the position that the respondent had been served with the notices for these years. In this appeal, no grievance was made about that finding of the learned trial judge. The learned trial judge, however, was of the view that notices for the assessment years 1940-41 to 1950-51, which were alleged to have been ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erving officer had done so, and the name and address of the person by whom the house was identified and in whose presence the copy was affixed. Rule 19 of Order 5 enjoins that where a summons is returned under rule 17, the court shall if the return under that rule has not been verified by the declaration of the serving officer, and my, if it has been so verified, examine the serving officer, on oath, or cause to be so examined by another court, touching the proceeding and may make such further enquiry into the matter as it thinks fit and then shall declare that the summons has been duly served or order for such service as it thinks fit. Before the learned judge, an affidavit-in-opposition was filed in which it was stated that as the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 CWN 1303; AIR 1916 Cal 317, Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008 and Shanbaggakannu v. Muthu Bhattar, AIR 1971 SC 2468. But as was observed by the Supreme Court in the case of K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526, that under rule 27(1) of Order 41 of the Code of Civil Procedure, the appellate court has the power to allow additional evidence not only if it requires such evidence " to enable it to pronounce judgment ", but also for " any other substantial cause ". There might well be cases where even though the court found that it was able to pronounce judgment on the state of record as it was, and so it could not strictly say that it required additional evidence to enable it to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records in order to find out under what circumstances the process server came to affix the notices, alleged to have been affixed at 8/1, Dacres Lane. All the records were produced and therefrom it appears the circumstances in which the process server had come to affix the notices. In the declaration of the process server it has been stated that after he was ordered by the Income-tax Officer to serve the notices, he went to serve the said notices on 28th March, 1962, at 12.30 p,m. and again on 29th March, 1962, at 3.50 p.m. but could not find the respondent and enquired of the persons who were there whether they would accept service. But they declined to do so and they refused to inform as to when and where the respondent would be available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e when he was not supposed to be available was not making proper effort. It was further contended that proper and substantial efforts must be made to find the persons to be served. Reliance in this connection was placed on the observations of this court in the case of Kassim Ebrahim Saleji v. Johurmull Khemka [1916] 20 CWN 173; AIR 1916 Cal 181(2) and Jhabarmull Dudhwalla v. Bhagatram Serowgie [1947] 51 CWN 189. Whether in a particular case there were proper and substantial efforts or whether reasonable efforts had been made to serve or find the person to be served, depends upon the facts and circumstances of that case. In the instant case, it is to be borne in mind that notices for the subsequent years and previous years had been served by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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