D.N.Sinha, J. - (1.) This application relates to the income-tax assessment of the petitioner Rampiyari Khemka, vidow of late Mahadeo Prasad Khemka, residing at 48, Nandlal Mitra Lane, Howrah. The facts are briefly as follows: According to the petitioner, in or about February, 1961 she filed a return of her income for the assessment year 1960-61 in the office of the Income-tax Officer, Howrah, pursuant to a notice under section 22 (1) of the Income-tax Act, therein-after referred to as the 'said Act'). It is stated that the Income-tax Officer called for returns of the earlier years and the petitioner filed a return for the assessment years 1953-54 to 1959-60. According to the Commissioner of Income-tax, as stated by him in the impugned order under section 33B of the said Act, dated 7th February, 1963 the assessee filed a voluntary return of income for the assessment years 195^-54 to 1960-61, all date 14-2-61 excepting the last one which was dated 13-2-61. Cognisance of the returns was taken by the Income-tax Officer Shri H. Biswas and notices under section 23(2) of the said Act were issued and served on Shri. J.L. Kherria, an Income-tax practitioner who was an authorised representative of the assessee. On the 18th February, 1961 assessment orders were passed for the years 1953 to 1961. On 20th January, 1963 the Commissioner of Income-tax, West Bengal issued a notice upon the petitioner under section 33B of the said Act. This notice has been referred to in the pleadings but no copy has been annexed. I have, therefore, called for the original notice to be produced and I have directed that a copy be kept on the record marked as Ext. 1. It is necessary to set out the contents of the notice, which is in the following terms: "On calling for and examining the records of your case for the assessment years 1953-54, 1954-55, 1955-56, 1950-57, 1957-58, 1958-58, 1959-60 and 1960-61 and other connected records 1 consider that the orders of assessment passed by the Income-tax Officer 'D' Ward, Howrah on 18-2-61 are erroneous in so far as they are prejudicial to the interests of revenue for the following reasons amongst others. (2) Enquiries made have revealed that no business was carried on by you as alleged in the Returns. Also the Income-tax Officer was not justified in accepting the initial capital, the income from business, the acquisition and sale of jewellery etc. without any enquiry or evidence whatsoever. (3) I, therefore, propose to pass such orders thereon as the circumstances of the cases justify after giving you an opportunity of being heard under the powers vested in me under section 33B the Income-tax Act, 1922. The cases will be heard at 11 A.M. on 7-2-63 at my above office when you are requested to produce the necessary evidence in support of your contentions. Objections in writing accompanied by the necessary evidence, if any. received on or before the appointment for personal hearing will also be duly considered. (4) Please note that no adjournment of the hearing will be granted."
(2.) The notice was sent by registered post to the petitioner, addressed to 48, Nandlal Mitra Lane, Howrah. This registered cover was delivered at the said address and Gita Bhai Khemka, daughter of the petitioner received the same and signed the acknowledgment receipt on or about 1st February, 1963, Meanwhile, on the 29th January, 1963 notice was also served by Inspector, Sri K. M. Naskar of the Income Tax Department who took it to premises No. 48, Nandlal Mitra Lane. Howrah and R. S. Khemka, son of the petitioner, received the same and signed for it On 2nd February, 1963 the said R, S. Khemka sent back the two unopened covers containing the notices mentioned above, to the Commissioner of Income-tax with a covering letter, a copy whereof is annexed to the petition and is included in Ext. A at page 3. He stated that on the 29th January. J963 an Inspector from the Income-tax Officer came to serve him with a notice "for Sm. Rampiyari Khemka". He does not mention that she was his mother. He further stated as follows: "The husband of the lady died on 19th January, 1963 and the lady is in state of mourning. In conformity with rites, the lady went out of Calcutta for two months and hence, I pleaded my inability to accept the said cover as neither, I am authorised to accept any documents on her behalf nor in a position to communicate with the lady. Despite my pleadings your Inspector insisted for serving the said cover on me. As your Inspector was very much adamant on serving the said cover despite my pleadings, I had to accept the said cover and I signed the acknowledgment for myself and under protests. While accepting the said cover I disclaimed any responsibility and pointed out to your Inspector that, if possible, I will send the said cover to the lady but up to this day, I could not transmit the said cover."
(3.) Here again, R.S. Khemka was writing about his mother, the petitioner, as -- 'the lady' without stating that she was his mother. He further stated that the registered cover was delivered to his minor sister, by the postal peon 'by misrepresentation and distortion of facts'. It is not stated that misrepresentation and distortion of facts had been made. On the 5th February, 1963 a further communication was addressed by the petitioner's solicitor Messrs, G. P. Lath and Co. a copy whereof is included in annexure 'A' to the petition, at page 4. It was stated therein that on the 29th January. 1963 a closed cover was left with R.S. Khemka who neither resided with the petitioner nor was her authorised agent to accept service. It was further stated that on the 1st February. 1963 a registered cover addressed to the petitioner was delivered to the petitioner's minor daughter. These two covers had been returned to the commissioner. It was stated that the petitioner was out of Calcutta on the two dates when service was sought to be effected, and she was not aware of the contents of the returned covers. The letter concluded as follows: "In the circumstances aforesaid, we are hereby instructed to write to you to serve the contents of the said covers on us as her representatives immediately to enable us to convey the said contents to our client for necessary instructions".;