TaxTMI 
TaxTMI 
1967 (8) TMI 15
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....al and the relevant assessment year is 1951-52, the previous year being Samvat year 2006. The assessee was carrying on business in tobacco, bidi leaves and other goods at Anjar in Kutch District. The original assessment on the assessee for the assessment year 1951-52 was made on January 11, 1952, on a total income of Rs. 11,284. Thereafter, the Income-tax Officer received some information, which led him to believe reasonably that the income chargeable to tax had escaped assessment so far as the assessment year 1951-52 was concerned; and after obtaining the sanction of the Commissioner of Income-tax, the Income-tax Officer reopened the assessment for the year 1951-52, by a notice issued under section 34(1)(a). This notice was issued on April 16, 1959, and was served on May 4, 1959, on Kumbhar Nameri, a part-time employee of the assessee. The assessee filed a return under protest and objected to the validity of the reopening of the assessment under section 34(1)(a). The assessee did not contest before the Income-tax Officer the validity of the service of the notice issued by the Income-tax Officer under section 22(2) read with section 34(1)(a). This return under protest was filed on ....
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.... set out above has been referred to us. In its order in paragraph 3, the Tribunal has pointed out the contention which was urged on behalf of the assessee and the contention was that, though Kumbhar Nameri was neither specifically authorized by the assessee in writing nor verbally so authorized, the filing of the return by the assessee after somehow getting the notice would not make an improperly served notice a valid notice. This contention urged before the Tribunal on behalf of the assessee was accepted by the Tribunal. The Tribunal in coming to its conclusion relied upon the decision of the Mysore High Court in C. N. Nataraj v. Fifth Income-tax Officer, City Circle II, Bangalore, and some other decisions of the Kerala High Court, where also, according to the Tribunal, a similar view was taken. A decision of the Bombay High Court directly in point does not appear to have been cited before the Tribunal. That decision is in K. C. Tiwari & Sons v. Commissioner of Income-tax. There the assessee was a firm of four partners with equal shares manufacturing and selling bidis at Nasik. For the assessment year 1952-53, corresponding accounting year being S. Y. 2007, the assessee subm....
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....the assessee must be deemed to have waived that irregularity by admitting that he had received the same and having thereafter proceeded to obtain a further adjournment. For these reasons, in our opinion, the contention raised by Mr. Palkhivala that there was not a proper and valid service of notice in the present case, because the manager on whom the notice and the letter were served had no authority in writing to receive the same is unsustainable. " This judgment of the Bombay High Court was delivered before the bifurcation of the bilingual State of Bombay on May 1, 1960, and is, therefore, binding on us. Apart from the said decision being binding on us, we are in respectful agreement with the principle laid down in that decision. The mode of service which has been prescribed in section 63(1) of the Act provides for the mode of service of a notice or a requisition as if it were a summons issued by a court under the Code of Civil Procedure, 1908. If a notice or requisition has been served in a manner other than the manner laid down for the service of a summons under the Code of Civil Procedure, the question might arise for consideration whether in fact the assessee had received ....
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....e, were issued in the individual names of the minor assessees and not in the name of their guardian. These notices were served on one K. Shivanna, a clerk of Nagappa, the father of the minor assessees ; and thereafter the question arose whether the notices were properly served on the assessees. It was on these facts that the notices issued under section 148 of the Income-tax Act of 1961 were held not to have been properly served on the assessees. At page 255 of the report it has been pointed out that the notices served on the minor assessees, which formed the basis of the proceedings under section 147 of the Act, were wholly invalid notices and the petitioners could not be assessed in pursuance of those notices. The decision in Ramnivas's case, being the earlier decision of the Bombay High Court, which was followed by the Bombay High Court in K. C. Tiwari's case, was cited before the Mysore High Court but on the facts of the case before it the Mysore High Court took the view that it was not necessary to consider the correctness of the decision of the Bombay High Court in Ramnivas's case. Thus, the view taken by the Bombay High Court in Ramnivas's case and followed in K. C. Tiwari's....