Case: Commissioner of Income Tax, West Bengal Iii and Others Vs. Ramendra Nath Ghosh

The assessment year with which we are concerned in these appeals are1 and. The assessment for those assessment years was completed by thex Officer on November 28, 1961. Thereafter, the Commissioner ofx initiated proceedings under section 33B and issued notices to the assessees on October 19, 1963. Notices were issued by registered post. They were also entrusted to thex inspector for personal service. It is conceded that the notices sent to the assessees by registered post were served long after the Commissioner passed his orders under section 33B. He passed those orders on November 2, 1963, and the notices sent by registered post were only served on the assessees on November 18, 1963. Therefore, we can ignore those noticesNow coming to the notices sought to be served personally by thex inspector, Mr. Neogi, we have two reports of his before us. In the first report dated October 21, 1963, he stated" Had been to the above address for serving the notice under section 33B on the above assessee. I contacted two persons who had been working there and gathered from them that M. Ramendra Nath Ghosh, a member of their family, who is usually available there had just then left for Calcutta and that he would not turn up during the rest of the day. They have however asked me to call on Mr. Ghosh tomorrow. Accordingly I have fixed up a time and have left a slip requesting Mr. Ghosh to wait for me."It may be noted that that report does not mention the names of the persons who pointed out the place of business of Mr. Ghosh to Mr. Neogi. Now we proceed to the next report submitted by Mr. Neogi on October 22, 1963. That report reads thus" Today also I had been to the above address again but unfortunately Mr. Ramendra Nath Ghosh was not available at the appointed time. However I contacted the said persons whom I saw there yesterday. Enquired about Mr. Ramendra Nath Ghosh, they informed that Mr. Ghosh has left the station and is expected back after a month or so. On further enquirythey informed that there was no second man to receive the notice in the absence of Mr. Ghosh. Mr. Ghoshs correct address and the place for which he left were not also furnished. From my conversation with them it appeared to me that they were avoiding the service of the notice. In the circumstances, I contacted thex Officer concerned and served the notice by affixation under his orders."      On the strength of those reports, the Commissioner came to the conclusion that the assessees were properly served and on that basis he proceeded to exercise his powers under section 33B, ex parte

Reasoning: The report of the serving officer does not mention the names and addresses of the person who identified the place of business of the assessees. That officer does not mention in his report nor in the affidavit filed by him that he personally knew the place of business of the assessees. Hence, the service of notice must be held to be not in accordance with the law. The possibility of his having gone to a wrong place cannot be ruled out. The High Court after going into the facts of the case very elaborately, after examining several witnesses, has come to the conclusion that the service made was not a proper service. Hence, it is not possible to hold that the assessees had been given a proper opportunity to put forward their case as required by section 33BWe cannot leave this case without expressing our disapproval as regards the procedure adopted by the High Court. The question whether the assessees had been served in accordance with the law or not is essentially a question of fact. Thex Act provides for an appeal against the order under section 33B. Normally, the assessee should have gone up in appeal against the order under section 33B. They should not have been allowed to invoke the extraordinary jurisdiction of the High Court. This court has emphasised that aspect in more than one decision. The learned judges while noticing those decisions have tried to bypass those decisions. But, it is needless to go into that question now. It cannot be said that the High Court had no jurisdiction to entertain the writ petitions though it should not have exercised its discretion in favour of the assessee in view of the adequate alternative remedy they had