TaxTMI 
TaxTMI 
2006 (3) TMI 128
X X X X Extracts X X X X
X X X X Extracts X X X X
....n several grounds, the one ground which according to the writ petitioner is sufficient to dispose of the writ petition, is ground No. "d", which reads as follows: "d. The first respondent being well aware of the closure of the operations and also in possession of the residential address of the partners of the petitioner, ought to have served the notice and order on anyone of the partners. However, the first respondent has adopted a curious approach in serving the mandatory notice of personal hearing on the chartered accountant of the petitioner and affixed the assessment order at the place of business which is not functional. The above is evidenced by the fact that the recovery notice now issued by the second respondent has been se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ioner is that no opportunity was given to him to produce further evidence to support his claim. If the notice had been served on him personally, he would have appeared and submitted his further objections. 6. On the other hand, learned senior Central Government standing counsel for the Income-tax Department invited my attention to section 282 of the Income-tax Act, 1961, which reads as follows: "282.(1) A notice or requisition under this Act may be served on the person therein named either by post or as if it were a summons issued by court under the Code of Civil Procedure, 1908 (5 of 1908). (2) Any such notice or requisition may be addressed- (a) in the case of a firm or a Hindu undivided family, to any member....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e adopted. 7. It is no doubt true that the first respondent under section 282 can invoke the provisions of the Civil Procedure Code and Order 5, rule 20 of the Code of Civil Procedure provides for "substituted service". As per the said provision, before resorting to substituted service, under Order 5, rule 20, the court should be 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, and then only 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 defenda....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged." In this case, as pointed out above, proper notice has not been served on the petitioner to enable him to effectively participate in the assessment proceedings and put forth its objections. In such circumstances, it is not proper to ask the petitioner to take recourse to alternative remedy of appeal. When the facts of this case clearly shows that there is f....