RANI LUXMI DEVI Vs. THE INCOME TAX OFFICER

JUDGEMENT

(1.) This is an appeal against an order of A.C. Sen, J., dated March 31, 1966. The facts are briefly as follows: The Appellant Rani Luxmi Devi is a citizen of Nepal. She has, however, had a long connection with India and is an Assessee under the Income -tax Officer, 'G' Ward, District II(2), Calcutta, being the Respondent No. 1 in this appeal. According to the Appellant, she was until recently the owner of No. 11 Theatre Road, Calcutta, and was residing there. According to her, on January 30, 1964, she sold the said premises No. 11 Theatre Road to Messrs. Ruby Insurance Co., Calcutta, and left for Allahabad. From there she went to Indore. She states that she resides at Indore and at Darjeeling where her husband has a dwelling house. On March 28, 1962, the Appellant was served with 13 notices under Sec. 34 of the Indian Income -tax Act, 1922 (hereinafter referred to as the said Act) in respect of the assessment for 1940 -41 to 1951 -52, stating that her income for the relevant years had escaped assessment and was going to be reassessed, and she was called upon to file a return. On April 5, 1963, the predecessor of the present Respondent No. 1 directed the Appellant to file a return under Sec. 34(1)(a), but she failed to do so. On March 30, 1964, the Respondent No. 1 passed an ex parte order of assessment for the assessment year 194344 under Sec. 23(4) read with Sec. 34 of the said Act. Thereafter, a demand notice was issued under Sec. 29 of the said Act for Rs. 2,22,174 -47 nP. and this demand is stated to have been served on the Appellant on March 30, 1964, by affixation. It is unnecessary to multiply the facts, because we have before us the return of the peon, Purna Kamal Chakraborty, who served the said notice and it runs as follows:

(2.) There is also a declaration made by Gouri Sankar Ghosh, Inspector of Income -tax, Dist. II(2), Calcutta, on the same date, namely March 30, 1964, in the following terms:

(3.) In the application in the Court below, it was the service of the demand notice which was challenged. We are not concerned with the assessment order but only with regard to the service of notice under Sec. 29. It is not disputed before us that notice under Sec. 29 must be served before the amount of the income -tax becomes recoverable. It is not also disputed before us that the service of the notice must be made in accordance with Sec. 63 of the said Act, which provides that notice of requisition under the said Act must be served on the person therein named either by post or through Court as if it were a summons under the Code of Civil Procedure, 1908 (V of 1908). Thus the notice in question had to be served as a summons under the Code of Civil Procedure. It is not also disputed that the service must be under Order 5, Rule 17 of the Code of Civil Procedure as amended by this High Court. The amendment came into effect on July 25, 1928. The amended Rule 17 runs as follows: