Judgment

HEGDE, J.:- These appeals by certificate raise a common question of low namely whether the essessees (respondents in these appeals) have been properly served before action was taken under Section 33-b of the Indian Income-tax Act. 1922 which will be hereinafter referred to as the Act .

2. The assessment years with which we are concerned in these appeals are 1959-50, 1960-61 and 1961-62. The assessment for those assessment years was completed by the Income-tax Officer on 28-11-1961. Thereafter the Commissioner of Income-tax initiated proceedings under Section 33-B and issued notices to the assessees on 19-10-1963. Notices were issued by registered post. They were also entrusted to the Income-tax 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 33-B. 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 notices.3, Now coming "to the notices sought to be served personally by the Income-tax 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 33-B 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:

"To day 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 end is expected back after a month or so. On further enquhy they informed that there was no second man to receive the notice in the absence of Mr. Ghosh. Mr. Ghosh s correct address and the place for which he left were not also furnished. From my conversation with their, it appeared to me that they were avoiding the service of the notice. In the circumstances, contacted the I. T. O. concerned and served the notice by affixation under his orders,"

4. On the strength of these reports, the Commissioner came to the conclusion that the assessees were properly served and on that basis he proceeded to exercise his powers under S. 33-B, ex parte.

5. The assessee instead of appealing against those orders straightway approached the High Court of Calcutta under Article 226 of the Constitution. The High Court entertained those Writ Petitions. The learned single Judge who heard the Writ Petitions at the first instance dismissed one of the petitions holding that the assessee had been given reasonable opportunity for representing his case before the Commissioner. But strangely enough he had earlier allowed a writ petition of one of the other assessees whose case was identical with that of the assessee whose writ petition he later dismissed.

But-on appeal to the Letters Patent Bench the decision of the single learned Judge was reversed. The appellate Bench came to the conclusion that there was no proper service on the assessees and therefore the impugned orders cannot be sustained. Thereafter this appeal has been brought after obtaining a certificate from the High Court.

6. As mentioned earlier the only question that we have to decide in these appeals is whether the assessees have been properly