1965 Supreme(Cal) 257

HIGH COURT OF CALCUTTA
H. K. Bose, B. C. Mitra
COMMISSIONER OF INCOME-TAX - Appellant
Versus
KIRAN DEVI SINGHEE - Respondent
A. F. O. O.  56  Of  1965
Decided On : DECEMBER 24, 1965

The Calcutta Amendment to Order V, Rule 17 of the Code of Civil Procedure, which dispenses with the requirement of using due and reasonable diligence before effecting service by affixing, is applicable to the service of notices under Section 33-B of the Income Tax Act, 1922.

Headnote:

INCOME TAX - Section 33-B - Service of notice - Validity - Calcutta Amendment to Order V, Rule 17 of the Code of Civil Procedure - Applicability - Alternative remedy - Availability - Exercise of discretion under Article 226 of the Constitution.

Fact of the Case:

The respondent, an assessee under the Income Tax Act, 1922, received a notice issued by the appellant under Section 33-B of the Act, informing her of the intention to revise her assessment orders for certain years. The notice was served on the respondent by affixing it at her declared address and also at another address known to the appellant. The respondent challenged the validity of the service, contending that it was not in accordance with the provisions of Order V, Rule 17 of the Code of Civil Procedure, as amended by the Calcutta Amendment. The respondent also contended that she had not been given a reasonable opportunity to be heard, as required by Section 33-B of the Act. The trial court upheld the respondent's contentions and quashed the impugned order passed by the appellant. The appellant challenged the trial court's decision in this appeal.

Finding of the Court:

The Calcutta Amendment to Order V, Rule 17 of the Code of Civil Procedure, which dispenses with the requirement of using due and reasonable diligence before effecting service by affixing, is applicable to the service of notices under Section 33-B of the Income Tax Act, 1922. The service of the notice on the respondent by affixing at her declared address was valid, as the serving officer was satisfied that she was absent from her residence and there was no likelihood of her being found there within a reasonable time. The requirement of an opportunity of being heard under Section 33-B of the Act is different from the requirement of a statutory notice under Section 34 of the Act. In the case of a proceeding under Section 33-B, it is sufficient if the assessee is informed of the grounds for the revision of the assessment and is given an opportunity to be heard. The respondent had an alternative remedy by way of an appeal to the Tribunal under Section 33-B(3) of the Act, which was an adequate and efficacious remedy. In the absence of any explanation or reason justifying the recourse to the special jurisdiction of the Court under Article 226 of the Constitution, the Court should decline to interfere with the order of the Tribunal.

Issues: 1. Whether the Calcutta Amendment to Order V, Rule 17 of the Code of Civil Procedure is applicable to the service of notices under Section 33-B of the Income Tax Act, 1922? 2. Whether the service of the notice on the respondent by affixing at her declared address was valid? 3. Whether the requirement of an opportunity of being heard under Section 33-B of the Act is different from the requirement of a statutory notice under Section 34 of the Act? 4. Whether the respondent had an alternative remedy by way of an appeal to the Tribunal under Section 33-B(3) of the Act? 5. Whether the Court should decline to interfere with the order of the Tribunal in the absence of any explanation or reason justifying the recourse to the special jurisdiction of the Court under Article 226 of the Constitution?

Ratio Decidendi: 1. The Calcutta Amendment to Order V, Rule 17 of the Code of Civil Procedure, which dispenses with the requirement of using due and reasonable diligence before effecting service by affixing, is applicable to the service of notices under Section 33-B of the Income Tax Act, 1922, as the reference to the Code of Civil Procedure in Section 63(1) of the Act must be held to be a reference to the Code as amended. 2. The service of the notice on the respondent by affixing at her declared address was valid, as the serving officer was satisfied that she was absent from her residence and there was no likelihood of her being found there within a reasonable time. 3. The requirement of an opportunity of being heard under Section 33-B of the Act is different from the requirement of a statutory notice under Section 34 of the Act. In the case of a proceeding under Section 33-B, it is sufficient if the assessee is informed of the grounds for the revision of the assessment and is given an opportunity to be heard. 4. The respondent had an alternative remedy by way of an appeal to the Tribunal under Section 33-B(3) of the Act, which was an adequate and efficacious remedy. 5. In the absence of any explanation or reason justifying the recourse to the special jurisdiction of the Court under Article 226 of the Constitution, the Court should decline to interfere with the order of the Tribunal.

Final Decision: The appeal was allowed. The judgment and order of the trial court were set aside, and the Rule was discharged. The respondent was ordered to pay the costs of the appellants both of this and of the trial Court.