ANADI NATH CHAKRABORTY Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE question referred under s. 66(1) of the Act is :

(2.) THE facts discovered from the statement of the case are as follows : THE assessee is an individual doing business in stationery. THE assessment year in question is 1946-47, the financial year ending on 31st March, 1946. A notice under s. 22(2) of the Act was issued to the assessee on 27th Aug., 1946. He filed his return on 11th Feb., 1949, showing an income of Rs. 17,457. A provisional assessment was made on the basis of this return on 16th Feb., 1949. THEreafter, the ITO found that the assessee had done some business in stationery not disclosed in the return. He issued a notice under s. 28(1)(c) of the Act for the levy of penalty on 21st Feb., 1952. THE assessee came forward with a disclosure under the voluntary disclosure scheme in March, 1952. On the basis of this disclosure an assessment was made on an amount of Rs. 49,091. THE ITO thereafter came to know that the assessee had encashed high denomination notes worth Rs. 18,000 after the ordinance of January, 1946, and that he had also made certain deposits in the Midnapore Bank Ltd. which had not been disclosed before. He issued a notice under s. 34(1)(a) of the Act on 4th March, 1955, with the previous approval of the CIT. An attempt was made to serve this notice through the process-server who reported on 9th March, 1955, that the notice could not be served as the assessee was not available. A second attempt made by the process-server on 11th March, 1955, was also not successful and the other inmates of the house of the assessee refused to accept the notice. THE ITO thereafter directed service of notice by registered post. THE notice was put in the post on 14th March, 1955. As no acknowledgment of service was received from the postal authorities even on 29th March, 1955, the ITO ordered that the notice be served by affixation and service was accordingly effected in this manner by the inspector on 30th March, 1955. According to the report of the inspector this affixation was done in the presence of two persons. No return was however filed by the assessee in spite of repeated opportunities allowed by the ITO. An ex parte assessment under s. 23(4) of the Act was made by the said officer adding an amount of Rs. 68,000 to the originally assessed figure of Rs. 49,091.

(3.) IN this case it is not known whether the notice which was sent by registered post reached the assessee or not. But the Revenue authorities have proceeded on the basis that the service was effected by affixation of a duplicate copy of the notice on 30th March, 1955, and it is the validity of this service which has to be examined. IN my opinion, the service is quite in order. The notice was attempted to be served personally on the defendant on 9th March, 1955, as also on 11th March, 1955. On both occasions he was found absent from his residence. On the last occasion the inmates of the house refused to accept service of the notice on his behalf. An attempt was made to serve the notice by registered post on 14th March, 1955. Normally the acknowledgment of the receipt of the notice should have been available at the office of the ITO long before 29th March, 1955. The ITO was certainly justified in taking into consideration the fact that even the notice sent by registered post had not apparently reached the assessee and two attempts made through the process-server on 9th March, 1955, and 11th March, 1955, had been unsuccessful. IN my opinion, the ITO was justified in coming to the conclusion that the assessee could not be found in the ordinary way and that there appeared to be no agent empowered to accept service nor any other person on whom service could be made and consequently his direction that the notice be served by affixation of a copy on the outer door or some other conspicuous part of the house in which the assessee ordinarily resided was in order. It is not suggested in this case that the address of the assessee to which the notice was sent was not his proper address, nor that he had any agent to whom he had given instructions to receive such notices on his behalf. IN my view, reasonable diligence had been used to find the assessee without any avail and the circumstances justified the service of the notice by affixing a copy of it on the outer door or some other conspicuous part of the house in which the assessee lived. Reliance was placed on a judgment of the Division Bench of this Court in Gopiram Agarwalla vs. First Addl. ITO (1959) 37 ITR 493 (Cal) in support of the contention that the service by affixation is not good service unless all efforts to trace the assessee are found to be unsuccessful. There the facts were as follows : When the serving officer went with the notice to the address of the assessee he found that the assessee was out. He offered the notice to a person who was pointed out to him as the assessee's son and on the latter's refusal to accept the service he affixed the notice on the premises. There it was held that " before it can be said that the defendant cannot be found, it must be shown not only that the serving officer went to the place at a reasonable time when he would be expected to be present, but also that if he was not found, proper and reasonable attempts were made to find him either at the address or elsewhere. If after such reasonable attempts the position still is that the defendant is not found, then and then only it can be said that the defendant cannot be found." The facts there were very different from the facts before us. IN that case only one attempt was made to find the defendant when he was found to be absent and merely because his son refused to accept service of the notice it cannot be said that the assessee could not be found. But what are the facts here ? On two occasions, the process-server goes to the assessee's premises, finds him absent on both occasions; the inmates of the house--whoever they were--refused to accept service; the notice is sent by registered post on 14th March, 1955; no acknowledgment is received even on 29th March, 1955; on 30th March, 1955, the process-server goes again and not finding the assessee affixes a copy of the notice on the premises. I do not see why in such a case it should not be held that sufficient attempts had been made to find the assessee. It is well known that in a city like Calcutta people living in the house next door to the house of the person required will hardly be able to say where the said person is to be found. The inmates of the house--usually unconnected with the person required--are not usually helpful in such matters. It is well known that if a letter is sent by registered post to a particular address the peon takes it to the address every day from day-to-day for at least a week or longer to hand over the letter to the addressee or some authorised person. From all the circumstances of the case and specially from the fact that personal attempts on the part of the process-server to find out the assessee and the attempt to serve him by registered post were all unavailing, the ITO was justified in concluding that the assessee was a person who could not be found and service had to be effected on him by affixing a copy of the notice on the outer door of the premises where he lived.