TMI Blog1981 (4) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... assessments ex parte under section 16(5). The case of the assessee was that except for the assessment year 1973-74, no notice under section 16(2) was served on the assessee for any of the years under consideration. Hence, it was urged that the ex parte assessments made on 30-3-1979 were null and void. For the assessment year 1973-74, it was argued that a notice under section 16(2) was no doubt served on the assessee, but the assessee asked for an adjournment and the case was refixed again. On the date so refixed, the representative of the assessee attended. Thereafter, no further notice was served and the assessment was completed ex parte and so the assessment for this year was also null and void. 4. The AAC found that on 23-3-1979 a notice under section 16(2) for all the 12 years was served by affixation requiring the assessee to comply with the terms thereof on 27-3-1979. He examined the Ward Inspector's report regarding the service by affixation and came to the conclusion that the notice under section 16(2) was validly served on the assessee by affixation, on 23-3-1979, fixing compliance on 27-3-1979. Hence, he held that the assessments completed on 30-3-1979 were quite proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and pointed out that a notice under section 16(2), date 2-8-1976, for the assessment years 1963-64 to 1971-72, fixing the date of hearing on 19-8-1976, was served on the assessee personally on 6-8-1976. Then she pointed to the office copy of the notice under section 16(2), dated 3-11-1977, fixing appearance on 18-11-1977, which was personally served on the assessee on 15-11-1977. She also referred to the office copy of the notice under section 16(2), dated 7-1-1978, fixing the hearing on 16-1-1978, for the assessment year 1973-74 onwards, which was served on the assessee. The learned representative for the assessee examined the office copy of these notices and admitted that they had been served on the assessee. Smt. Meenakshi Singh stated that it was enough if a notice under section 16(2) was served once before completing the assessment and so it was not true to say that no notice under section 16(2) was served on the assessee before the completion of the assessment. Then, she referred to the reports dated 8-3-1979 and 23-3-1979 of the Ward Inspector, in which the circumstances under which the notice under section 16(2) had to be served by affixation has been mentioned. In the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 years. The assessments have been made ex parte for the non-compliance of this latter notice which required the assessee's compliance on 27-3-1979. The case of the assessee before us is that the said latter notice was not validly served and so the ex parte assessments made under section 16(5) for the non-compliance of the said notice were null and void. It is, therefore, necessary to see whether that latter notice was validly served and, if not, what are the consequences. 10. Section 41(1) says that notice under the Act may be served either by post or as if it were a summons issued by a court under the Code of Civil Procedure. As pointed out by the learned representative for the assessee, the relevant order and rules of the Code of Civil Procedure state that a personal service should first be tried and only when that attempt fails, the service might be effected by affixation. We find that the WTO tried to effect personal service through the departmental notice server. But the reports of the notice server, already referred to earlier, stated that direct service could not be effected for the reasons stated in his report. Thereupon, the WTO directed the service of the notice by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 16(2) is not properly served, then it does not affect the jurisdiction of the WTO to proceed with the assessment proceedings. In such a case, it will be open to the appellate authority to set aside the assessment and direct to make the assessment afresh after removing the irregularity relating to the service of notice under section 16(2). Hence, even assuming, but not admitting, that the notice under section 16(2) served in this case was not valid, then also, we do not find anything improper in the direction of the AAC to make the assessments afresh after giving a reasonable opportunity of being heard to the assessee. 12. The above conclusion of ours is supported by the decision of the Supreme Court in the case of Guduthur Bros. In that case, the ITO started penalty proceedings under section 28(1)(a) of the 1922 Act and served a notice under section 28(3) of the said Act on the assessee to show cause as to why penalty should not be imposed. The assessee had also filed a written reply in response to the said notice. The ITO did not give any further opportunity of being heard to the assessee but imposed the penalty. The assessee appealed to the AAC and contended that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authority. In the case before us, the AAC has expressly directed the WTO to complete the reassessment in accordance with the law after giving a reasonable opportunity of being heard to the assessee. Hence, we do not find anything improper or irregular in the order of the AAC. 13. We have considered the decision of the Assam High Court in the case of Hardeodas Jagannath but find the said decision to be of no assistance to the assessee because the decision of the Supreme Court in the case of Guduthur Bros. was not brought to the notice of their Lordships in that case. Similarly, we find that the decision of the Bombay High Court dated 23-8-1976 in Misc. Petition No. 1203 of 1979 and the decision of the Gauhati High Court in the case of Jai Prakash Singh have not noticed the decision of the Supreme Court in the case of Guduthur Bros. and so, these decisions should be considered per incuriam. We rely on the decision in the case of Tata Iron Steel Co. Ltd. v. D.V. Bapat, ITO [1975] 101 ITR 292 (Bom.) wherein it has been held that a decision should be held to have been given per incuriam only where it was given in ignorance or forgetfulness of some inconsistent statutory pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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