Invalid service of income-tax notice where process-server return lacked affidavit verification and oath examination

Service of notice under section 22(2) was held invalid where the process-server's return under Order 5 Rule 17 was not verified by affidavit and the serving officer was not examined on oath, because the procedural rule required such examination when no affidavit verification was filed. The reference was limited to the validity of service, and the broader assessment order was not open for consideration. On the facts found by the Tribunal, the statutory service requirements were not complied with, so the notice failed in law and the Tribunal's view was upheld.

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Issues: Whether service of notice under section 22(2) of the Indian Income-tax Act, 1922, was invalid where the return under Order 5 Rule 17 of the Code of Civil Procedure was not verified by affidavit and the serving officer was not examined on oath.

Analysis: The reference was confined to the validity of service of notice, and the broader question of the assessment order was not open for consideration. The applicable procedural rule drew a distinction between cases where an affidavit verifying the return was filed and cases where it was not. Where the return was not verified by affidavit, the authority was bound to examine the serving officer on oath. Non-compliance with that requirement was treated as non-compliance with Order 5 Rule 19. On the facts found by the Tribunal, the process-server had not verified the return by affidavit and had not been examined on oath.

Conclusion: The service of notice was invalid in law, and the Tribunal was right in so holding.

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