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Keshab Narayan Banerjee v. Commissioner Of Income-Tax And Another
Structured Summary of the Opinion
Factual and Procedural Background
This appeal under clause 15 of the Letters Patent challenges a judgment dated 14 June 1993 of a learned single judge. The writ application was filed by the appellant, Keshab Narayan Banerjee, against reassessment and related proceedings. For assessment years 1983-84 to 1987-88 the Assistant Commissioner (respondent No. 2) passed orders under section 147 of the Income-tax Act on 8 March 1990, assessing the appellant's income by estimate and initiating penalty proceedings. The assessment order recited that a notice under section 148 had been served by affixation after an earlier registered-post attempt allegedly came back unserved. The Commissioner (respondent No. 1) later invoked section 263, issued show-cause notices (dated 21 February 1992) alleging error in the earlier assessments for not levying interest under section 139(8), and gave the appellant a hearing on 4 March 1992.
The appellant filed a writ under article 226 challenging the validity of the section 147 orders on the primary ground that they were not preceded by proper service of notices (and so were passed without a hearing). The learned single judge quashed the section 263 order on the basis that if the section 147 order was not properly preceded by service of notice, the later revision under section 263 was also bad. The single judge considered three modes of service (personal tender/refusal, affixation, and registered post) and concluded that service by registered post should be deemed to have been accomplished although the contents of the registered covers required proof; as a result the learned single judge directed respondent No. 1 to reconsider the question of service limited to proof of contents of the registered covers. The present Letters Patent appeal challenges that operative direction and the findings regarding service by registered post.
Legal Issues Presented
- Whether the orders passed under section 147 of the Income-tax Act (dated 8 March 1990) were validly made when the notices preceding assessment were alleged to have been served by affixation after attempts at registered-post service allegedly failed.
- Whether service of notices by registered post (in the factual circumstances of this case) could be deemed to have been accomplished, such that the requirement of prior service for a valid section 147 order was satisfied.
- Whether the Commissioner’s exercise of revisionary jurisdiction under section 263 was valid if the foundational section 147 orders were themselves invalid for lack of proper service.
Arguments of the Parties
Appellant's Arguments
- The principal and primary contention before the learned single judge (and carried into this appeal) was that the order under section 147 was bad in law because it was not preceded by proper or appropriate service of notice, thereby denying the appellant an opportunity of hearing.
- Because the section 147 order was alleged to be invalid, respondent No. 1 had no jurisdiction to invoke section 263 to revise that order.
Respondents' Arguments
- The respondents maintained consistently that service was effected by affixation where regular/personal service was not possible; the assessment order and their affidavits describe attempts at service and eventual affixation.
- At the Letters Patent appeal stage a representative (Mr. Prasad) sought to challenge the single judge's adverse findings on the first two modes of service (personal/refusal and affixation), but the respondents had not appealed nor filed cross-objections against those findings before the appellate court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Madan and Co. v. Wazir Jai-vir Chand, (1989) 1 SCC 264 : AIR 1989 SC 630 | Principle that where a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can be attributed to the addressee's conduct; read “served” as “sent by post” and “receipt” as tender of the letter by the postal peon at the address mentioned. | The learned single judge relied on this case to hold that registered covers should be deemed to have been served. The appellate bench examined Madan and Co., distinguished its facts (including that Madan dealt with a statute prescribing service by registered post alone) and held that Madan and Co. was not applicable on the facts because there was no endorsement on the envelopes indicating attempts at service, refusal, or unavailability; consequently the appellate court declined to apply Madan and Co. to deem service by registered post. |
| Miss D. Ennis v. Calcutta Vyapar Pratisthan Ltd., AIR 1991 Cal 152 | Used by the learned single judge as additional authority in support of the conclusion that registered-post service could be treated as accomplished (as cited alongside Madan and Co.). | The learned single judge cited this case in support of its conclusion on registered-post service. The appellate court noted the single judge's reliance on it but held that, on the particular record (absence of meaningful postal endorsements and the respondents' pleaded case), the finding that registered-post service was deemed could not stand. |
| ITO v. S. Veeriah Reddiar, [1967] 64 ITR 70 (SC) | Proposition that a court should not allow a new case or ground to be set up by a party when that ground was not raised in the petition/affidavit; the High Court should not decide a point not averred in the pleadings. | The appellate court relied on this authority to reject the respondents' attempt (through Mr. Prasad) to upset findings on refusal and affixation modes of service because the respondents had not appealed nor raised the registered-post case in their pleadings before the single judge; the court applied the principle to bar setting up a new case after the fact. |
Court's Reasoning and Analysis
The appellate bench undertook a stepwise analysis grounded on the record before the single judge and the pleadings:
- Scope of earlier judgment: The learned single judge had considered three modes by which the notices preceding the section 147 order could have been served — (a) personal tender with alleged refusal, (b) affixation at residence, and (c) service by registered post — and concluded (only) that registered covers should be deemed served while requiring proof of contents because envelopes were found opened.
- Finality of findings on refusal and affixation: The appellate court refused to permit the respondents to challenge the single judge's adverse findings on the first two modes of service (personal/refusal and affixation) because the respondents had not appealed against those findings nor filed cross-objections. The court applied the principles underlying Order 41, rule 22(1) of the Civil Procedure Code (as applied to Letters Patent appeals) to hold that a partly successful respondent who does not appeal or file cross-objections cannot be permitted at the appellate stage to unsettle relief granted to the petitioner by seeking to overturn those findings. Consequently, the findings on refusal and affixation were treated as final.
- Examination of the record on registered-post service: The appellate court inspected the original registered covers and found no meaningful endorsements indicating attempts at delivery, refusal, or that the addressee had left. The only endorsement noted was “redirect to Labr./LB.” There was no endorsement from the postal authorities demonstrating an attempt to tender the registered envelope at the appellant’s residence or a clear indication of refusal or absence.
- Application and limitation of Madan and Co.: The court analysed the single judge’s reliance on Madan and Co. The bench observed that Madan and Co. concerned a statute (J & K Rent Control Act) that prescribed service by registered post alone, whereas section 282 of the Income-tax Act provides alternative modes of service (including the procedure akin to Order 5, rule 17 CPC). The appellate court held that Madan and Co.'s reasoning was not applicable in the present facts because the minimum required indicia of postal attempts (enduring endorsements showing attempt/refusal/unavailability) were absent.
- Procedural posture and parties' pleaded case: The appellate court emphasised that the respondents had consistently maintained in pleadings and affidavit-in-opposition that the notices were served by affixation and had not urged registered-post service at any stage. Because the registered-post theory was not set up by the respondents before the single judge, the single judge’s independent invocation of that theory constituted an error — the appellate court relied on ITO v. S. Veeriah Reddiar to underline that courts should not decide on a ground not raised in pleadings.
- Consequence of lack of valid service: Given the absence of adequate proof of service by registered post and the respondents’ own averments that service was by affixation (and the single judge’s adverse findings on affixation and refusal having been left undisturbed), the appellate court concluded there was neither material nor pleaded case to justify deeming registered-post service to have been effected.
- Conclusion on validity of orders: Because service of the requisite notices was a necessary pre-condition to the making of valid assessment orders under section 147, and because the court found service by registered post not properly effected, the section 147 orders were held to be bad in law. Consequently, revisionary proceedings and orders under section 263 that originated from those section 147 orders were also held to be impermissible.
Holding and Implications
APPEAL ALLOWED; the operative part of the judgment under appeal is set aside.
Direct holdings and immediate effects:
- The appellate bench set aside the single judge's finding that notices under section 147/148 were properly served by registered post and held that registered-post service was not properly effected in the absence of adequate postal endorsements or proof.
- Because valid service of notice is a condition precedent to making assessment orders under section 147, the court held that the section 147 orders impugned in this litigation were bad in law.
- As the section 263 proceedings originated from the invalid section 147 orders, the Commissioner of Income-tax was not justified in invoking section 263 in relation to those assessments; those revision proceedings could not be sustained.
- The appeal was allowed without any order as to costs.
Broader implications: The opinion confines its decision to the facts and record of the case (absence of postal endorsements and the respondents' pleaded case). The court specifically distinguished the Supreme Court authority relied upon by the single judge (Madan and Co.) on the basis of different statutory contexts and insufficient proof of postal attempts; the decision does not purport to create a new general rule beyond its factual and procedural findings.
V.K Gupta, J.:— This appeal under clause 15 of the Letters Patent is directed against the judgment dated June 14, 1993, passed by the learned single judge of this court whereby the writ applicatim filed by the appellant, Keshab Narayan Banerjee, was disposed of by directing respondent No. 1 to reconsider the question of service of the notices under sections 148 and 139(2) of the Income-tax Act, 1961, and the assessment orders passed under section 147 of the Income-tax Act on the question whether service of such notices under sections 148 and 139(2) under registered cover was effected or not, limited to the question of proof of the contents of the covers sent by registered post to the appellant. The brief facts leading to the filing of the appeal may be summarised thus:
For the assessment years 1983-84, 1984-85, 1985-86, 1986-87 and 1987-88, respondent No. 2, Assistant Commissioner of Income-tax, Central Circle-I, Calcutta, passed orders under section 147 of the Income-tax Act on March 8, 1990. By invoking his power of reassessment under the said section 147 of the Income-tax Act, he assessed the total income of the appellant at Rs. 12 lakhs on estimate and also initiated penalty proceedings under sections 271(1)(b), 271(1)(c) and 273(2)(a) of the Act. It was mentioned in this assessment order that a notice under section 148 of the Act was served on the assessee by affixation. Since, however, no return in compliance with the said notice served by affixation was filed, a notice under section 142(1) of the Act was sent to the assessee by registered post which came back unserved. Subsequently, the notice was served by affixation again. Since the assessee did not comply with the notice served upon him by affixation, the proceedings under section 147 were completed in the absence of the assessee and, as observed above, the income was computed at Rs. 12 lakhs on estimate. It appears that respondent No. 1, Commissioner of Income-tax, Central Circle-II, Calcutta, invoked his jurisdiction under section 263 of the Income-tax Act and issued notices on February 21, 1992, upon the appellant to show cause as to why action under section 263 of the Act be not initiated in respect of the aforesaid assessment years since it appeared to respondent No. 1 that the assessment orders passed by respondent No. 2 on March 8, 1990, for the aforesaid assessment years were erroneous and prejudicial to the interests of the Revenue for the reason that although interest under section 139(8) of the Act was leviable in all the above noted assessment years, the Assessing Officer did not levy the same. The appellant was accordingly given an opportunity of hearing on March 4, 1992. It is at this stage of issuance of the aforesaid notice itself that the appellant approached this court by filing a writ application under article 226 of the Constitution of India. During the pendency of the writ application, a final order in terms of section 263 of the Act was also passed by respondent No. 1, but this order was also quashed and set aside by the learned single judge, in the light of the observations and the reasoning given in support of her judgment allowing the writ application, as shall be noticed later.
2. The primary and the main ground, rather the only ground which was urged before the learned single judge by the appellant in support of his contention about the invalidity of the proceedings and the orders impugned in the writ application was that the order under section 147 of the Act passed on March 8, 1990, was bad in law since it was not preceded by the service upon the appellant of any proper or appropriate notice and because the appellant was denied the opportunity of such a notice and thus a right of hearing, the order under section 147 of the Act was invalid and illegal. It was accordingly urged and contended that respondent No. 1 had thus no jurisdiction to invoke section 263 of the Act to revise the order earlier passed under section 147 of the Act for levying interest on the amount of income-tax assessed because the order under section 147 of the Act itself was bad. The learned single judge, therefore, while agreeing with the points raised by the appellant partly, did agree with the contention mainly with regard to the observations of the mandatory requirement of service of notice upon the appellant resulting in the passing of the order under section 147 of the Act and held that if the order under section 147 of the Act was not preceded by the service of a proper notice upon the appellant, such order was bad and accordingly proceedings under section 263 of the Act emanating and originating from such an order were also bad.
3. Three modes of sendee, additionally or alternatively to one another were taken notice of by the learned single judge about the notice preceding the passing of the order under section 147. The first mode was the attempt through personal service. The notice was stated to have been tendered to the appellant on October 1, 1987. This mode of service was not accepted by the learned single judge since the notice was not actually served upon the appellants but was deemed to have been served only because of the alleged refusal on the part of the appellant to accept the notice. The learned single judge was of the view that since particulars of the person who allegedly refused, to accept the service or the date and place of receiving the notice, etc., etc., were not indicated in the endorsement regarding the refusal, service by this mode was not properly effected. The second mode of service (not mentioned in this order in the judgment-under appeal) was by affixation at the residence of the appellant. This mode of service also was not accepted by the learned single judge. Relying upon section 282 of the Income-tax Act, which prescribed two alternative modes of service, one by registered post and the other as if by way of summons under the Code of Civil Procedure, and read in the context of Order 5, rule 17, of the Code of Civil Procedure, the learned single judge held that the service by affixation, as claimed by the respondents was also not proper since it was not in conformity with the requirement of Order 5, rule 17 of the Civil Procedure Code. The learned single judge held that one of the main reasons for resorting to affixation was either the refusal on the part of the appellant or that there was no likelihood of him being found at his residence within a reasonable time and that there was no other person duly authorised and empowered to accept the service on his behalf. Observations were also made about the number of times the serving officer were required to go to the residence of the appellant to effect service and the extent of enquiries he was supposed to make with regard to the whereabouts of the appellant and his assertion that, there was no likelihood of the appellant being found at his place within reasonable time. This now brings us to the third mode of effecting service of notices (not in that order as mentioned in the judgment). The learned single judge was of the view that the appellant was sent notices by registered post and that, in the facts and circumstances of the case, the registered covers should be deemed to have been served upon the appellant, even though there would not be a definite and conclusive proof of the service of contents of these registered covers. The learned single judge has mainly relied upon the judgment of the Supreme Court in the case of Madan and Co. v. Wazir Jai-vir Chand, (1989) 1 SCC 264 : AIR 1989 SC 630. The following observations of their Lordships in that judgment were quoted by the learned single judge to lead her to the conclusion that service by registered post, in the manner it was allegedly done in this case, should be deemed to have been accomplished (page 633):
“… if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to retain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective equitable and practical interpretation and that would be to read the word ‘served’ as ‘sent by post’, correctly and properly addressed to the tenant and the word ‘receipt’ as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.”
4. The learned single judge, relying upon the aforesaid observations of the apex court appears to have made the following observations purportedly as the basis for holding that the registered covers were deemed to have been served upon the appellant:
“Although the envelope may not contain the word ‘left’ or ‘not claimed’ (although there is an almost indecipherable scribble which may be the word ‘left’) nevertheless, on the authority of Madan and Co.'s case, (1989) 1 SCC 264 : AIR 1989 SC 630, I must hold that there was proper service of the notices (see Miss D. Ennis v. Calcutta Vyapar Pratisthan Ltd., AIR 1991 Cal 152).”
5. After holding that she was of the view that the registered covers were deemed to have been served upon the appellant, but faced with the situation that after having been received back by the respondents these covers were opened by the respondents for effecting service by affixation, she observed that there could not be a conclusive proof of the service of the contents of these covers since the covers were found opened and therefore evidence might be needed to be adduced to prove the service of the contents of the covers. It is in the light of these observations that she ultimately disposed of the writ application by directing respondent No. 1 to reconsider the question of service of notices in the light of her findings and to find out whether the contents of the registered covers were actually there or not when these were deemed to have been served upon the appellant.
6. Let us first deal with the submission of Mr. Prasad, learned advocate appearing for the respondents. He urged before us that we upset the findings of the learned single judge with regard to the first two modes, of service, viz., refusal and affixation, both findings having been returned against the respondents. The contention of Mr. Prasad cannot be accepted for a very simple reason. The respondents have not come up in appeal against the judgment of the learned single judge. The respondents have not also filed any cross-objections in the present appeal filed by the appellant. They have not challenged the aforesaid findings of the learned single judge.
7. Sub-rule (1) of rule 22 of Order 41, Civil Procedure Code, reads as under:
“Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow.”
8. Proceedings in a writ application filed under article 226 of the Constitution and an appeal arising therefrom under clause 15 of the Letters Patent strictly would not be civil proceedings in the sense that technically they are not governed by the provisions of the Code of Civil Procedure, yet they being in the nature of civil proceedings, the principles contained in Order 41, rule 22 of the Civil Procedure Code, should apply in all Letters Patent appeals. After all a respondent who was partly successful in the writ proceedings should clearly decide whether to appeal against the unsuccessful part of the judgment of the learned single judge or to agitate in the appeal court the finding which may go against him. Such a partly successful respondent, therefore, can prefer its own appeal against that part of the judgment which goes against it or may, in the appeal of the writ petitioner decide to file cross-objection(s) in respect of the findings which have gone against him. If he does neither, it is still open to him to take recourse to the provision contained in rule 22(1) of Order 41, Civil Procedure Code, and urge the court hearing the appeal that the finding against him by the learned single judge in respect of an issue ought to have been in his favour. This is the limited right made available under the amended rule 22(1). This right, however, has to be exercised with clear limitation and a contingent condition that the ultimate result of the appeal shall not amount to upset the judgment of the learned single judge in so far as the nature and extent of the relief granted to the writ petitioner (appellant in the Letters Patent appeal) is concerned. A person, the respondent in the writ application, who does not choose to file appeal against the judgment of the learned single judge, even though a substantial part of such judgment goes against him, nor does he choose to file cross-objections in the appeal filed by the writ petitioner, cannot be permitted to urge the court to set at naught even that relief which was partially given to the writ petitioner by the learned single judge. Subject to such limitation and contingent condition, such a respondent may be allowed to assail a finding on an issue returned by the learned single judge which went against him. In the present case, as noticed, the Revenue has neither filed any appeal against the judgment of the learned single judge nor did it file any cross-objections in the appeal filed by the petitioner and yet it wanted to challenge the aforesaid two findings regarding the mode of service based on “refusal” and “affixation”. If the respondent is allowed to challenge these two findings, or even one of them, and if the challenge is successful, the result would be that in the appeal we shall have to hold that the service of notice by “refusal mode” or “affixation mode”, as the case may be, or by both of them was proper, and if once we take that view, even the limited relief given by the learned single judge to the appellants would have to be set aside. The net result, therefore, would be that the appellant who filed the appeal against the part of the relief which was not given to him by the learned single judge would be deprived of even that part which was given to him, only because he came up in appeal against the unsuccessful part, even though the respondent did not prefer any appeal against any part of the judgment, successful or otherwise. We have no hesitation to hold that such a course of action, from the interpretation of rule 22(1) is not permissible. We, therefore, did not permit Mr. Prasad to challenge these two findings under rule 22(1). These two findings, therefore, in our view, have assumed finality and cannot be upset or disturbed by us in this appeal.
9. This now takes us to the issue raised by Mr. Pal in the appellant's appeal with regard to the finding by the learned single judge that the notice was deemed to have been served by registered post, even though the proof of its contents was required to be adduced.
10. We have seen the original records produced before us by the respondents. We found that in the registered cover (envelope) stated to have been sent to the appellant, there was no endorsement of either refusal of service or even return of the envelope to the sender. The only endorsement which we found on the registered cover was “redirect to Labr.” “LB” perhaps stands for “P.O Labpur” in District-Birbhum. We have very carefully looked at every possible nook and corner of the registered cover (envelope) but failed to find any endorsement which could have directly or indirectly amounted to indicate any refusal on the part of the appellant or even the fact that the appellant had left. Whether any attempt at all was made by the postal authorities to actually serve the said cover upon the appellant or tender it to any one at his residence is not at all discernible from any endorsement on the envelope. The observations of their Lordships of the Supreme Court in Madan and Co., (1989) 1 SCC 264 : AIR 1989 SC 630, with utmost respect we feel, are not applicable in this case because the minimum that was required to be shown by the respondents for establishing proper service by registered post was an endorsement to be meaningful and informative, that an attempt was made to serve the appellant and that either the appellant refused to take service or that the appellant was not available at his residence or that there was no one willing to accept service on his behalf. This we are saying despite the fact that Madan and Co., (1989) 1 SCC 264 : AIR 1989 SC 630, was dealing with section 12 of the J & K Houses and Shops Rent Control Act, 1966, wherein service by registered post alone was the mode of service prescribed, whereas in our case, under section 282 of the Income-tax Act admittedly alternative modes of service under Order 5, rule 17, has clearly been provided. This is just one aspect of the matter.
11. The second and more important aspect is that the learned single judge culled out the issue relating to service by registered post entirely on her own. At no stage of the proceedings, right from the passing of the order under section 147 of the Act uptill the conclusion of the proceedings in the writ application had the respondents set up any plea that the notices were served upon the appellant by registered post. In fact, to be fair to the parties, the consistent stand of the respondents all along clearly has been that the notices could not be served even by registered post and, therefore, the service by affixation had to be resorted to.
12. Affidavit-in-opposition filed by the respondents before the learned single judge in answer to the writ application was the best medium of explaining in so far as the question of service, as understood by the respondents themselves, was concerned. In the entire affidavit-in-opposition there is no averment to the effect that the appellant was served the notices by registered post. All along the consistent stand of the respondent has been that the service of notice was effected by affixation. The following averments in the affidavit-in-opposition may be reproduced with advantage to prove this point:
“I state further that as regular service of the notice was not possible the same was served by the Inspector of this Department by affixation and this was a valid service in the facts and circumstances of the case. This last mode of service is also a well recognised service at law.”
13. The following may also be reproduced with advantage:
“Notices under section 148 for the assessment years 1983-84 to 1986-87 were issued on September 22, 1987, but these could not be served by the N.S as the petitioner allegedly refused to receive the same. Thereafter the notices were issued by the Inspector and duly served by affixation December 23, 1987. Notice of hearing for the above assessment year were also served by the petitioner on January 17, 1990, by the Inspector by affixation as regular service was not possible.”
14. Going much before the filing of the affidavit-in-opposition, at the very threshold of the controversy, in the recital to the order dated March 8, 1990, passed under section 147 of the Act even the Assessing Officer was clearly aware that the attempt to serve by registered post did not succeed and materialise and, therefore, the notices were sent by affixation. There is in fact a clear finding by the Assessing Officer himself that the notice by registered post had come back (unserved). The following observations in the very first part of the order under section 147 of the Act may be quoted thus:
“A notice under section 148 was served on the assessee by affixation. No return in compliance to the said notice was filed. A notice under section 142(1) was sent to the assessee by registered post which came back unserved. Subsequently, the same was served by affixation.”
15. Even respondent No. 1, the Commissioner of Income-tax in the order passed under section 263 of the Act pursuant to the show-cause notice has observed as under with regard to the service of notice:
“The learned advocate has raised the issue that no notice under section 148 was received by the assessee in the assessment years under consideration. I have gone through the records of the case and I find that the notice under section 148 for the assessment years 1983-84, 1984-85, 1985-86 and 1986-87 all dated September 22, 1987, and notice under section 139(2) dated September 22, 1987, for the assessment year 1987-88 were sent by notice server who has returned the same with his remark dated October 7, 1987, that the assessee has refused to take the notices and hence returned. Later on, the said notices were served by affixation on December 22, 1987, by an Inspector. In his report dated December 23, 1987, for the service of the above notices, the Inspector has mentioned that he had attempted to contact the assessee for personal service on December 21, 19,87, between 2 p.m and 2.30 p.m and again on December 22, 1987, between 11.30 a.m and 12 noon and having failed in those attempts he had served the notices by affixation on December 22, 1987, between 2.30 p.m and 2.45 p.m”
16. In the case of ITO v. S. Veeriah Reddiar, [1967] 64 ITR 70 (SC), it has clearly been held that no new case can be allowed to be set up. The following observations may be reproduced (page 72):
“The main point urged on behalf of the appellant in this appeal before us is that the High Court wrongly exercised its jurisdiction in quashing the notice issued by the appellant on a ground which was not raised by the respondent in his petition under article 226 of the Constitution. This submission has to be accepted. Learned counsel appearing for the respondent was unable to show any averments in the affidavit filed on behalf of the respondent where such a ground might have been raised. The respondent, in that affidavit, clearly understood that the notice issued by the appellant was under clause (a) of sub-section (1) of section 34 of the Act, and yet, confined the challenge to the ground that the appellant had no reasons whatever to believe that the income of the respondent had escaped assessment or had been underassessed. It was at no stage stated that the appellant had no reason to believe that the escape of income from assessment, or the underassessment of income, was the result of any failure or omission on the part of the assessee to make a return, or to disclose fully and truly all material facts necessary for his assessment. Since there were no such averments in the petition or the affidavit in support of it, the appellant also did not, in the counter-affidavits, make any specific averment that he had reasons to believe that the escapement or under assessment of income was occasioned by the failure or omission on the part of the respondent to make the return, or to disclose fully and truly all necessary material facts. In spite of this circumstance that neither party had, in its affidavit, made averments relating to this question of fact, the High Court proceeded to infer from the affidavits that the appellant had not entertained any such belief, and allowed the writ petition. On the face of it, there was no justification for the High Court to set up such a new case on behalf of the respondent and to decide it in the absence of any averments of facts by the respondent to justify going into that question. On this ground alone, the order made by the High Court must be set aside.”
17. We, therefore, are of the view that there is neither any material which could justify the inference or finding that service by registered post was either effected or should be deemed to have been accomplished nor was this the case of the respondents before the learned single judge and thus the learned single judge erred in law in returning such a finding.
18. We have, therefore, no hesitation in holding that the service by registered post of the notices allegedly sent to the appellant writ applicant, resulting in the passing of the order under section 147 of the Act was not properly effected or accomplished. Since, admittedly, the service of such notices was a necessary pre-requisite, a condition precedent for passing of the orders under section 147 of the Act, we also have no hesitation in holding that such orders were bad in law, and, therefore, the proceedings under section 263 of the Act, admittedly, originating from such orders could not be initiated against the appellants.
19. The service of such notices, therefore, not having taken place, the Commissioner of Income-tax was not in law justified to invoke his jurisdiction under section 263 of the Act. On an overall consideration, therefore, we do not find ourselves in agreement with the view taken by the learned single judge that the notice under section 147/148 of the Income-tax Act was properly served by registered post. We set aside such finding of the learned single judge and because the entire basis of the operative part of the judgment of the learned single judge proceeded on the premises of due service of the registered cover, contents being subject to proof, such basis having been knocked out, nothing survives in so far as the operative part of the judgment under appeal is concerned. The judgment under appeal, therefore, is set aside in so far as the operative part is concerned. The appeal accordingly is allowed, but without any order as to costs.
B. Bhattacharya, J.:— I agree.
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