BIJOY AND COMPANY Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS application has been presented by the assessee under Section 256(2) of the I.T. Act, 1961, praying therein that the Tribunal may be directed to state the case and refer three questions to this court for its opinion. We may briefly state the facts which have given rise to this application.

(2.) THE 1TO, H-Ward, Jaipur, issued notices to the two partners of the petitioner-firm, M/s. Bijoy and Company, Jaipur, for reassessment after obtaining the sanction of the CBDT. THE assessment, which was sought to be reopened, related to the assessment year 1951-52, and the period of 16 years was to expire on March 31, 1968. THE notices for reassessment under Sections 147/148 of the I.T. Act, 1961, were issued on March 28, 1968, and one set of such notices was sent through an inspector of the I.T. department, while another set of notices was sent by registered post. So far as the notices sent through the inspector of the I.T. department are concerned, a report was submitted by the inspector that the whereabouts of the assessee-firm were not traceable and he affixed the copies of the notices on the outer doors of the residential houses of the partners, namely, Hari Kishan and Sagarmal, on March 29, 1968, THE notices sent by registered post were received back with the endorsement of refusal, so far as Badri Narain, partner, was concerned, but as regards Hari Kishan the notices were returned by the postal authorities with the endorsement that the addressee was not found. THE ITO treated the service as sufficient and as the assessee did not appear, the reassessment proceedings were completed ex parte. On appeal, the AAC held that service of notices was not properly effected upon the partners of the assessee-firm and as such the reassessment proceedings were vitiated. THE department took the matter in appeal before the Income-tax Appellate Tribunal. THE Tribunal, by its order dated April 27, 1972, held that so far as the notices sent through the inspector of the I.T. department were concerned, the service thereof could not be held to be sufficient in law without examining the inspector of income-tax concerned.

(3.) WE have closely examined the order passed by the Tribunal remanding the case to the ITO and we are of the view that the Tribunal did not give any definite finding in the matter. If the Tribunal would have held that the reassessment proceedings were properly initiated, then it would not have proceeded to pass an order of remand, in order to find out whether the service of notices was properly effected on Badri Narain, one of the partners of the assessee-firm. The Tribunal has also directed the ITO to examine the I.T. inspector in order to find out whether the service was properly effected by affixation or not. The concluding part of the order of the Tribunal dated April 27, 1972, convincingly shows that the stray observation made by the Tribunal in para. 8 of its aforesaid order was not a final expression of its opinion, in respect of the question as to whether the proceedings for reassessment are initiated merely by issuance of notices before the time-barring date or the requirement of law is that the notices should not only be issued but they should also be served before the said date.