Chakravartti, C.J. - (1.) I confess I do not feel altogether happy about the way in which the facts have been found in this case or the manner, in. which the case has been stated. Not that it is impossiole to answer the question, as framed, but since the question touches only a fringe of the real controversy between the parties, it is not possible to feel sure that should the answer be against the assessee, his contention will be fairly laid to rest.
(2.) The facts are as follows. On 23-1-1949, a notice under Section 34, Income-tax Act, was served on the assessee, Malchand Surana, with respect to the assessment year 1945-46. The notice was sent under registered post and it is not disputed that it was correctly addressed. The assessee, however, was not present at his shop at the time the postal peon took the letter there for delivery - in fact, he was not even in Calcutta - and the delivery of the letter was taken by a brother of the assessee, named Chaganlal. It has been found that Chaganlal is separate from the assessee in mess and also lives separately and further that he is not concerned with the assessee's business, nor had he any authority to receive the notice on the assessee's behalf. It has further been found that at the relevant time he happened to be at the shop only casually.
(3.) The assessee did not file any return in response to the notice and in due course the Income-tax Officer made a summary assessment under Section 23(4) of the Act. Thereafter, the assessee made an application under Section 27 for a cancellation of the assessment on the ground that he had been prevented by sufficient cause from making a return in compliance with a notice under Section 34. The sufficient cause was stated to be that the notice under Section 34 had not been served on him.;