COMMISSIONER OF INCOME TAX Vs. SATYA NARAIN PODDAR

JUDGEMENT

(1.) THE question referred to us under Section 66(1) of the Income-tax Act by the Income-tax Appellate Tribunal is :

(2.) 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 presence of witnesses. When the assessee did not file a return, a notice under Section 23(4) was issued. The assessee appeared and took certain adjournments but ultimately did not turn up and an ex-parte assessment was made under Section 23(4) of the Indian Income-tax Act, 1922. The assessee filed an appeal and contended that as the notice under Section 22(2) was not issued in accordance with the provisions of Order 5 of the Code of Civil Procedure, the proceedings were void ab initio. The appeal was allowed and the department's appeal before the Tribunal was dismissed on the finding that there was non-compliance of the provisions of Rule 19 of Order 5, Civil Procedure Code, inasmuch as the summons returned under Rule 17 had not been verified by an affidavit of the serving officer and the serving 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.

(3.) WE accordingly answer the question referred to us in the affirmative. The, assessee will be entitled to his costs which we assess at Rs. 200. Counsel's fee is assessed at the same figure.