COMMISSIONER OF INCOME-TAX Vs. BAXIRAM RODMAL

JUDGEMENT

(1.) THE Commissioner of lncome-tax, in, compliance with this Court's order, has referred certain question Under Section 66(2), Income-tax Act, for our decision. The Income-tax Officer issued a notice Under Section 23(2) of the Act to the assessee a joint Hindu family. This was served on Asaram, the accountant of the joint family business. In response to that notice Kisanlal, a member of the joint family, appeared on 19th December 1930 and asked for further time in which to produce his accounts. It is not apparent from the order-sheet exactly what happened but it has been conceded before us that the Income-tax Officer told him that an extension would be allowed and that the date for further hearing would be intimated to him. A notice, in the form used for notices Under Section 23(2), was issued to the joint family and served on Asaram at the joint family shop. The date fixed was 8th January 1931, and on that date no one appeared. The Income-tax Officer accordingly made an ex parte assessment Under Section 23(4). On 28th February 1931 the assessee applied Under Section 27 to have the assessment cancelled and affidavits were filed by Asaram and Kisanlal stating that . the contents of the second notice were not communicated by Asaram to Kisanlal. The Income-tax Officer held that Asaram had implied authority to accept notices and that therefore Kisanlal had a reasonable opportunity to comply with the notice. On appeal the Assistant Commissioner held that a notice to Asaram was a valid notice to the assessee and also that no notice was in fact necessary.

(2.) UNDER Section 63(1) of the Act a notice or requisition under this Act may be served on the person therein named either by post or, as if it were a summons issued by a Court, under the Civil Procedure Code, and such notice or requisition may, in the case of a Hindu undivided family, be addressed to any adult male member of the family. Order 3, Rule 2, Civil P.C., defines 'recognized agents" and Rule 3 provides that processes served on the recognized agent of a party shall be as effectual as if the same had been served on the party in person. Order 5, Rule 12 provides that service shall, wherever it is practiceable, be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient. Order 3, Rule 6 provides that, besides the recognized agents described in Rule 2, any person may be appointed as agent to accept service of process, but such appointment must be made by an instrument in writing signed by the principal. It is not suggested that Asaram was a recognized agent or had been appointed an agent to accept service by an instrument in writing, and the petitioner has therefore urged that there was no valid service on the assessee.

(3.) THE mere fact that Asaram had acted on some occasions in this way would not constitute him an agent on whom a notice or requisition under the Act could be validly served, nor would any statement made by him bind the assessee, and we see no reason why a notice informing the assessee of the adjourned date should be deemed to be validly served when it was merely served on Asaram. The decision in Jangi Bhagat Ramawtar v. Commr. of Income-tax, Bihar and Orissa A.I.R. 1930 Pat. 127, to which reference has been made, does not help the Commissioner of Income-tax because the assessee in that case contended that be had to be served personally and it was held that service on a gomastha, who was his accredited agent, was valid service; it is not clear whether the gomastha was a recognized agent or had been authorized in writing to accept service, and there is no discussion of this point.