1. The Commissioner of Income-tax, in compliance with this Court's order, has referred certain questions under Section 66(2) of the 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 S. 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 S. 23(4). On 28th February, 1931 the assessee applied under S. 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 Code of Civil Procedure, and such notice or requisition Page: 176may, in the case of a Hindu undivided family, be addressed to any adult male member of the family. O. 3, R. 2 of the CPC, defines “recognized agents” and R. 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. O. 5, R. 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. O. 3, R. 6 provides that, besides the recognized agents described in R. 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.
3. 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.
4. The Commissioner of Income-tax has supported the finding of the Assistant Commissioner that it was incumbent on the assessee to find out for himself the date to which the case had been adjourned and that it was not necessary for the Income-tax Officer to inform him of that date. Ordinarily it may be the duty of the assessee who applies for an adjournment to find out the date fixed, but when the Income-tax Officer tells the assessee that an adjournment will be allowed and that the adjourned date will be intimated to him, we are of opinion that it is not incumbent on the assessee to find out that date but that he is entitled to await the promised information: Commr. of Income-tax, Madras v. Perianna Pillai, A.I.R 1930 Mad. 113 (S.B). It appears that Asaram has received notices on behalf of the assessee on previous occasions and has appeared before the Income-tax Officer on behalf of the assessee. In giving evidence Asaram stated:
“I used to take income-tax notices addressed to my master. Whenever the owner was in the shop he used to take them but in his absence I was not taking the notices but the process server threatened me that he would return the notice with the remark that the assessee refuses to take the notice though he is present. I had therefore to take the notice.”
5. The mere fact that Asaram had acted on some occasions in this way would not constitute him an agent on whom notice or requisition under the Act ??? be validly served, nor would any statement made by him bind the assesses and we see no reason why a notice ??? forming the assessee of the adjourn date should be deemed to be valid served when it was merely served on Asram. The decision in Jangi Bhagat Ramawtar v. Commissioner Of Income-Tax, Bihar & Orissa*, A.I.R 1930 P.C 127, to which reference has been made does not help the Commissioner of Income-tax because the assessee in this case contended that he had to be ??? personally and it was held that service on a gomastha, who was his accredit agent, was valid service; it is not ??? whether the gomastha was a recogniz agent or had been authorized in ??? to accept service, and there is no ??? of this point.
6. The Commissioner of Income-tax ??? stated that he does not believe the a davits stating that the contents of the notice were not communicated by Asram to Kisanlal; but even if these ??? be disbelieved, a point which ??? not been considered by the Income-tax Officer and Assistant Commissioner there is no evidence to show that the notice did in effect reach Kisanlal. We do not think it unreasonable to ins that Income-tax Officers, in doing ??? very important work of assessing income-tax, must take the elementary ??? caution of seeing that the person ??? whom they are dealing is in fact authorized to represent the assessee, a they are not entitled to assume ??? merely because such person has on ??? signed a notice, possibly ??? pressure, or produced account books ??? inspection. Our answers on the point referred to us are: (1) and (2). The service of the notice on Asaram was ??? a valid service on the assessee. (3). The assessee had not a reasonable ??? to comply with the notice. The assessee's petition must therefore be allowed with costs. Counsel's fee Rs. ???
7. Petition allowed.
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