Case: Commissioner of Income Tax, Kerala Vs. Thayaballi Mulla Jeevaji Kapasi (Decd.) (By His Legal Representatives)

clear from his reports, made inquiries on March 18, 1954, and March 25, 1954, about the presence of the respondent in Calicut. The process-server was informed on the first occasion that the respondent was in Bombay and that it was expected that he would return to Calicut within a week. On the second occasion also it was found that the respondent was not in Calicut and the process-server was informed that the respondent was " in Bombay or in Ceylon ". The Income-tax Officer was apparently satisfied on a sworn statement made before him about the correctness of the recitals made in the endorsement made by the process-server and he declared the summons duly servedThat attempts were made to personally serve the respondent with the notice cannot, on the materials placed before the court, be denied. Whether the steps taken in a particular case amount to using all due and reasonable diligence must depend upon the circumstances of each case. The respondent was on March 25, 1954, not in Calicut. That is not denied. The only information which the process-server received on March 25, 1954, was that the respondent was " in Bombay or in Ceylon ". It was thereafter that the process-server affixed the notice on the business premises of the respondent. Thereby, prima facie, the statutory requirements were satisfied7. The Tribunal has observed in its order that counsel for the respondent had stated that he gave the Bombay address of the respondent on March 8, 1954. Evidently, this statement was never made before the Income-tax Officer or the Appellate Assistant Commissioner, and no record appears to have been maintained of the statement. Again the statement is obscure : it is not stated whether it was made orally or in writing and even it does not state whether it was made to or given to the Income-tax Officer. Counsel for the respondent suggested that the date, March 8, 1954, was incorrectly recorded, it should be March 18, 1954, and that presumably it was the process-server who was informed about the " Bombay address " of the respondent. If the Tribunal desired to rely upon that statement, it should have formally called upon counsel for the respondent to record the statement in writing so as to enable the Income-tax Officer to meet that case. Counsel for the respondent urged that in any event the Income-tax Officer was otherwise aware of the place of residence of the respondent in Bombay, but of that there is no evidence8. Counsel for the respondent contended that in failing to follow up the information that the respondent was " in Bombay or in Ceylon " the Income-tax Officer was guilty of negligence, and, therefore, service by affixing cannot be regarded as duly made. Counsel relied upon the decision of the Madras High Court in Myitkyina Trading Depot v. Deputy Tahsildar, Paramakudi, and the decision of the Calcutta High Court in Gopi Ram Agarwalla v. First Income-tax Officer. In Myitkyina Trading Depots case, an unregistered firm which had its business mainly in Rangoon and had a branch office in Madras was assessed for the assessment year 1939-40. Proceedings for reassessment were commenced against the firm after the partners had left for Burma and notice was served after the business was closed by affixing it on the house in which the respective wives of the partners resided, and proceedings for reassessment were completed ex parte. Assessments for the subsequent years 1940-41 and 1941-42 were also completed in their absence. On these facts the Madras High Court held that there was no proper or due service of the notice under section 34 on the assessee and the substituted service by affixing did not constitute due service. The court pointed out that at the material time the two partners of the respondent-firm were resident in a country occupied by Japan which was at war with India and postal communications between India and Burma were severed. In the circumstances, the court held that service by affixing the notice at the known residence of the partners, where their respective wives resided, could not be regarded as due service. In Gopi Ram Agarwallas case, it was held that the mere fact that the " serving officer did not find the party to be served with the notice at his address " is not sufficient to establish that he 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 that address or elsewhere. If after such reasonable attempts the position still was that the party is not found, then and then only can it be said that he cannot be found. The principle laid down in that case is unexceptionable, but it has, in our judgment, no application in this caseIn the present case attempts were made to serve the notice upon the respondent at his place of business. He was not then in Calicut. No definite information could be secured in spite of inquiries as to the whereabouts of the respondent, and only thereafter, the notice was served by affixing. The Income-tax Officer held the necessary inquiry and declared the notice duly served. In the circumstances, we do not think that there was any irregularity in the service of the notice under Order V, rule 17, of the Code of Civil Procedure, read with section 63 of the Income-tax Act9. Counsel for the respondent said that before the Income-tax Officer a request was made that the two persons in whose presence the notice was affixed may be examined, but the Income-tax Officer did not examine them. That, however, cannot, in our judgment, affect the validity of the service10. The answer recorded by the High Court to the question submitted by the Tribunal will be discharged and an answer in the affirmative will be recorded

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The notice was, it appears, handed over to a person who, thebelieved, was the son of the respondent. But the service of that notice was defective, and the notice was cancelled. The second notice dated March 24, 1954, was affixed on a conspicuous part of the business premises of the respondent and themade the requisite endorsement. Before theOfficer a sworn statement of thewas recorded and theOfficer declared the service valid6. The Tribunal and the High Court regarded the service as improper. In our view the Tribunal and the High Court were in error in so holding. It is true that Order V, rule 17, of the Code of Civil Procedure, prescribes certain conditions on the existence of which alone a summons served by affixing it to the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain may be deemed to be duly served. There is no dispute in the present case that the notice was affixed on a conspicuous part of the business premises of the respondent. Thehad, it is clear from his reports, made inquiries on March 18, 1954, and March 25, 1954, about the presence of the respondent in Calicut. Thewas informed on the first occasion that the respondent was in Bombay and that it was expected that he would return to Calicut within a week. On the second occasion also it was found that the respondent was not in Calicut and thewas informed that the respondent was " in Bombay or in Ceylon ". TheOfficer was apparently satisfied on a sworn statement made before him about the correctness of the recitals made in the endorsement made by theand he declared the summons duly servedThat attempts were made to personally serve the respondent with the notice cannot, on the materials placed before the court, be denied. Whether the steps taken in a particular case amount to using all due and reasonable diligence must depend upon the circumstances of each case. The respondent was on March 25, 1954, not in Calicut. That is not denied. The only information which thereceived on March 25, 1954, was that the respondent was " in Bombay or in Ceylon ". It was thereafter that theaffixed the notice on the business premises of the respondent. Thereby, prima facie, the statutory requirements wereThe principle laid down in that case is unexceptionable, but it has, in our judgment, no application in this caseIn the present case attempts were made to serve the notice upon the respondent at his place of business. He was not then in Calicut. No definite information could be secured in spite of inquiries as to the whereabouts of the respondent, and only thereafter, the notice was served by affixing. TheOfficer held the necessary inquiry and declared the notice duly served. In the circumstances, we do not think that there was any irregularity in the service of the notice under Order V, rule 17, of the Code of Civil Procedure, read with section 63 of the, however, cannot, in our judgment, affect the validity of the service10. The answer recorded by the High Court to the question submitted by the Tribunal will be discharged and an answer in the affirmative will be recorded