COMMISSIONER OF INCOME TAX Vs. HABIBULLAH

JUDGEMENT

(1.) A reference was made by the Tribunal, Allahabad Bench, Allahabad, at the instance of the CIT, Kanpur, to this Court under S. 256(1) of the IT Act, 1961, ('the Act") and the said reference was returned unanswered by this Court on 18th Feb., 1982, on the ground that inspite of several opportunities being granted in this behalf the applicant had not supplied the necessary copies of the paper book. Thereafter, the present application was made on 7th Oct., 1983, i.e. after about one year and eight month of the reference being returned unanswered, with the prayer for recalling the order dt. 18th Feb., 1982. The applicant was required to serve the assessee opposite party with the notice of this application and to file an affidavit of service. Notwithstanding several opportunities being given in this behalf, no affidavit service was filed. Ultimately, an affidavit of one K.K. Gupta was filed on 12th June, 1984, stating that on 1st March, 1984 as attempt was made to serve the notice on the assessee at his residence, but it was discovered that the assessee was at present residing in London and consequently, the notice was affixed on the main door of the assessee's residence. The service of notice, however, was not found to be sufficient and a Division Bench of this Court on the same date. i.e. 12th July, 1984, granted one month's further time to the applicant to serve the assessee. Thereafter, the case was listed on several dates with the report that the requisite affidavit of service has not been filed. When the case was listed today, another affidavit of one K.K. Srivastava sworn on 29th Oct., 1984 has been filed, wherein it has been stated that an attempt was made to serve the assessee on 27th Oct., 1984 with the notice of the case but the deponent was informed that the assessee along with his family members had gone away to London and was there since January, 1982, and there was no likely hood of their return within reasonable time and that a copy of the notice was affixed on the outer door of the residence of the assessee. In regard to this affidavit, it may be pointed out that on 16th Nov., 1984, apparently notwithstanding this affidavit which was not filed on that date, a statement was made by the counsel for the applicant that the London address of the assessee could not be ascertained so far.

(2.) HE prayed for and was granted six weeks further time to serve the assessee after finding out his address and file an affidavit of service. In place of doing so, the affidavit mentioned above, sworn on 29th Oct., 1984 has been filed today. Since this Court, by an order dt. 12th July, 1984, has already taken the view on the basis of a similar affidavit that service of notice was not sufficient, we find no good ground on the basis of the present affidavit to hold to the contrary.