Service of notice by affixing is valid only if the conditions specified in Order V, Rule 20 of the Code of Civil Procedure are satisfied.

C.S.P. Singh, J

1. THE controversy raised in this petition falls within a very narrow compass. We will set out only such facts as are necessary for the disposal of this application. The question that arises is as to whether there was valid service of the notice of demand on the assessee, petitioner No. 1. The petitioner, in his petition, has alleged that no notice of demand was served on him. In order to ascertain the facts correctly we directed Sri Deokinandan, counsel for the department, to produce the relevant papers. The "record was produced in court. From the record, it appears that N. D. challan for interest and challan for regular payment and I. T. 30 Form were sent by the process server addressed to the petitioner, assessee No. 1, on October 3, 1972 ; the process server on the back of this made the following endorsement in Hindi which translated runs:

"I inquired at a number of places but could not find out."

2. ON October 4, 1972, i.e., on the next day, the Income-tax Officer passed the following orders:

"I. T. I.--Please serve by affixture on the last known address."

On December 13, 1972, there is an endorsement running:

"Served by affixture in the presence of Sri Mahabir Prasad, N. S. today."

3. MAHABIR Prasad had endorsed that the affixture took place in his presence. The question is as to whether service by affixture effected in these circumstance is sufficient service as contemplated by the Act. Section 282 of the Act provides that the notice may be served on the person named therein either by post or as if it were a summons issued by a court under the Code of Civil Procedure. In the present case, the notice was not served on the assessee by post. It was served by affixture. As it was served by affixture, it has to be seen as to whether it was served in the manner required by the Code of Civil Procedure for service of summons. The provision for issue of service of summons is made in Order V of the Code of Civil Procedure. Counsel for the petitioner has urged that the matter was covered by Order V, Rule 17, of the Code of Civil Procedure, and there has been a clear non-compliance with that provision; as such, the service cannot be deemed to be sufficient. On the contrary, counsel for the revenue has contended that the matter is covered by Order V, Rule 20 of the Code and there has been sufficient compliance with this provision. Order V, Rule 17 and Order V, Rule 20, Clause (i), may be extracted :

"Rule 17.--Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

Rule 20. (1) Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit."

4. NOW, if the matter is considered with reference to Order V, Rule 17 and Rule 19, in v