The main legal point established in the judgment is the requirement to ensure proper service of notices under the Indian Income Tax Act, emphasizing the need to verify the authority of the person served with the notice and the implications of refusal to accept service.

R.S. Garg, J.

1. This judgment shall finally decide MAIT No. 62 of 2005 (Bhagirath Rajput v. CIT), MAIT No. 29 of 2005 (Bhagirath Rajput v. CIT), (MAIT No. 63 of 2005 (Bhagirath Rajput v. CIT) and MAIT No. 64 of 2005 (Bhagirath Rajput v. CIT).

2. Learned counsel for the appellant after taking us through Section 282 of the Indian Income Tax Act and the provisions of Order V of the "CPC (unamended) specially Rule 12, Rule 15, Rule 17, Rule 19 and Rule 19A of Order V of the CPC, submitted that in the present matter service of notice issued under Section 148 or under Section 142(1) of the Income Tax Act was patently bad because one of the notices was served upon the erstwhile/ex-accountant of the appellant who was even otherwise not empowered as an agent to accept the notice and that the other notice was served upon minor son of the noticee/appellant.

3. It is submitted that the notice under Section 148 of the Act was issued on 20th Feb., 1997 and was served upon the Munim/accountant Harish Chandra on 24th Feb., 1997. The submission is that nobody ever verified from said Harish Chandra that whether he was an agent empowered to accept the service. It is submitted that notice under Section 142(1) of the Act was issued on 15-12-1998 and was served on the minor son on 19-12-1998. The submission is that nobody ever verified the age of minor son even when the appellant had filed his personal affidavit before the Commissioner (Appeals) and had also filed copy of school certificate where the son studied. The submission is that affidavit was also brought on record before the Tribunal but the Tribunal by passing a cryptic order simply observed that the birth certificate of the son was not from the high school or from the municipality. It is submitted that the appellant was not provided an opportunity and has been unnecessarily sacrificed.

4. Learned counsel for the revenue, however, submitted that on 10-8-1998 notice under Section 142(1) was issued and the same was refused by the appellant on 11-8-1998, therefore, the service was valid and assuming that notice issued on 15-12-1998 was not validly served then the service of earlier notice would fix liability on the appellant.

5. Section 282 prior to its amendment provided that a notice or requisition under the Act may be served, on the person therein named either by post or as if it was a summons issued by the court under the CPC. In the present matter notices were not issued by post but were sought to be served as summons issued by Court. For effecting service, Order V of CPC provides various modes. Rule 12 of Order V provides that wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. While making service upon any person who is not a member of the family of the noticee, it shall be the duty of the serving officer/process server to verify that such person is an agent empowered to accept the service. If such facts are not brought on record that the person on whom the service was effected, was an agent empowered to accept service then service of notice on such person cannot be deemed to be a valid service upon noticee. In the present matter unfortunately nothing has been brought on record to show that Harish Chandra was an agent empowered to accept the service.

6. Service can also be presumed to be valid in a case where the defendant refuses to accept the service. In such a situation Rule 17 would come into operation But, however, application of Rule 17 would always be subject to Rule 19 which clearly provides that where a summons is returned under Rule 17, the court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if ithas been so verified, examine the serving officer on oath, or cause himto be so examined by another Court, touching his proceedings and may make such further enquiry in the matter as it