1971 (11) TMI 35

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....s under section 66(1) of the income-tax Act by the Income-tax Appellate Tribunal is : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the service of notice under section 22(2) of the Indian Income-tax Act, 1922, was invalid in law ? " A notice under section 22(2) was issued to the assessee, but on the tender being refused, the notice was a....

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....avit of the serving officer and the serving officer had not been examined on oath by the Income-tax Officer. On this finding the Tribunal held that the service of the notice under section 22(2) was invalid and upheld the annulment of the assessment. Learned counsel for the Commissioner of Income-tax has contended that as before the Tribunal the assessee's case was that there was non-compliance ....

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....s to go into the question about the effect of the appearance of the assessee before the Income-tax Officer in compliance of the notice under section 22(4) of the Income-tax Act. Although the assessee had contended before the Tribunal that there was non-compliance of rule 20 of Order 5, Civil Procedure Code, the assessee did not accept that there was any service made under rule 17 of Order 5. The c....

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....cedure Code, are mandatory. This rule uses both the words " shall " and " may ". In cases where the return under rule 17 is not verified by an affidavit of the serving officer, the rule says that the court shall examine the serving officer on oath. It is only where the affidavit of the serving officer has been filed that the rule gives a discretion to the court to examine or not the serving office....