ARUN K.MUKHERJEA, J. - (1.) THIS is an appeal against a judgment and order dt. 19th Nov., 1965, of Banerjee J. by which the appellant's application for quashing of certain proceedings under s. 33B of the IT Act was dismissed.
(2.) WHEN the matter came up for decision before Banerjee J. various points were urged including the point as to whether the appellant had been given reasonable opportunity of being heard, before the CIT exercised his powers under s. 33B of the Indian IT Act, 1922, for the purpose of revising the assessment of the appellant's income for the asst. yrs. 1959-60 to 1961-62. Banerjee J. found that all the points raised by the appellant except the point as to reasonable opportunity were covered by a decision of this Court in Kalawati Debi Haralalka vs. CIT (1964) 53 ITR 314 (Cal) and did not require any fresh consideration. These points were all summarily rejected by the learned Judge. The only point that the learned Judge seriously considered and then decided against the appellant-petitioner was the point as to reasonable opportunity. At the time of hearing of this appeal Mr. A. K. Sen, appearing on behalf of the appellant, also confined himself to the point of reasonable opportunity. Therefore, in relating the facts and circumstances of this case we confine ourselves only to those which are relevant for consideration of the point of reasonable opportunity. On 19th Oct., 1963, the Commissioner of Income-tax (hereinafter referred to as the CIT) issued a notice addressed to the appellant concerning a proposed revision under s. 33B of the Indian Income-tax Act of the assessments of the appellant-petitioner for the years 1959-60 to 1961-62. In the letter constituting this notice it is stated that according to the CIT the orders of assessment passed by the ITO, "D" Ward on 28th Nov., 1961, in respect of the aforesaid assessment years had been " erroneous in so far as they were prejudicial to the interests of revenue ". The CIT in that letter gave reasons as to why he considered those orders erroneous and then stated that he proposed to pass orders on those cases after giving the appellant-petitioner an opportunity of being heard. The hearing was fixed on 2nd Nov., 1963, at 10-30 a. m. at the office of the CIT where the appellant was requested to produce all necessary evidence. The appellant was also told that any written objections accompanied by necessary evidence in support of these objections received on or before the appointment for personal hearing would be duly considered by the CIT. This notice, as we shall presently see, was never served on the appellant in time. The notice was sent by registered post to three addresses, viz., (i) 7, Banerjee Para Street, Uttarpara, Hooghly, (ii) 2, Grand Trunk Road, Ballykhal, Howrah, and (iii) 47, Banerjee Para Street, Uttarpara, Hooghly. All these three registered letters were served upon the appellant on or about 18th Nov., 1963, through a post office in Midnapore. In the meantime the CIT caused a copy of the notice to be served upon the petitioner by affixation at No. 2, Grand Trunk Road, Ballykhal, Howrah, on 22nd Oct., 1963. There is lot of controversy regarding the factum as well as the validity of this service. We shall in due course deal with those controversies. But it is necessary now to take notice of two statements of H. P. Neogi, Income-tax Inspector, dt. 21st Oct., 1963, and 22nd Oct., 1963, respectively. These were in the shape of reports submitted by him to his office. The reports are so important for the purpose of this appeal that I consider it necessary to set out these reports verbatim. The reports were as follows : Report dt. 21st Oct., 1963. "Reg.-Sri Ramendra Nath Ghosh for and on behalf of Sailendra Nath Ghosh and Ors. of 2 G. T. Road, Ballykhal, Howrah. Sm. Sibani Rani Ghosh, 2, G. T. Road, Ballykhal, Howrah...... Sm. Rashmoni Ghosh, 2, G. T. Road, Ballykhal, Howrah........ Sri Ramendra Nath Ghose, 2, G. T. Road, Ballykhal, Howrah. Had been to the above address for serving the notice under s. 33B on the above assessee. I contacted two persons who had been working there and gathered from them that Mr. Ramendra Nath Ghosh, a member of their family who is usually available there, had just then left for Calcutta and that he would not turn up during the rest of the day. They have however asked me to call on Mr. Ghosh tomorrow. Accordingly, I have fixed up a time and have left a slip, requesting Mr. Ghosh to wait for me. Sd./- H. P. Neogi, 21-10-63. Seen report. Re : Inspector will please try to serve the notices tomorrow on Sree Ramendra Nath Ghosh and Ors., failing which the notices should be served by affixation. Sd./- Illegible, 21-10-63." Report dt. 22nd Oct., 1963. "Reg : Sri Ramendra Nath Ghosh for and on behalf of Sailendra Nath Ghosh and Ors. of 2, G. T. Road, Ballykhal, Howrah. Sm. Sibani Rani Ghosh, 2, G. T. Road, Ballykhal, Howrah. Sm. Rashmoni Ghosh, 2, G. T. Road, Ballykhal, Howrah. Sri. Ramendra Nath Ghosh, 2, G. T. Road, Ballykhal, Howrah. Today also I had been to the above address again but unfortunately Mr. Ramendra Nath Ghosh was not available at the appointed time. However, I contacted the said persons whom I saw there yesterday. Enquired about Mr. Ramendra Nath Ghosh, they informed that Mr. Ghosh has left the station and is expected back after a month or so. On further enquiry they informed that there was no second man to receive the notice in the absence of Mr. Ghosh. Mr. Ghosh's correct address and the place for which he left were not also furnished. From my conversation with them it appeared to me that they were avoiding the service of the notice. In the circumstances, I contacted the I. T. O. concerned and served the notice by affixation under his orders. Sd./-H. P. Neogi, 22-10-63. " These two reports should be read with an affidavit made by Shri H. P. Neogi on 22nd Oct., 1963. The affidavit was in the following terms : "I, H. P. Neogi, Inspector of the Office of the I. T. O., Howrah, Calcutta, solemnly affirm and declare : That on 19th Oct., 1963, I received a notice No. J 26569 C. T. dt. 19th Oct., 1963, from the CIT of I. T. W. B. for service on Sri Ramendra Nath Ghosh, 2, G. T. Road, Ballykhal, Howrah. I attempted to contact the assessee for personal service on 21st Oct., 1963, between the hours 1 p. m. to 2 p. m. and again on 22nd Oct., 1963, between the hours 2 p. m. to 3 p. m. and having failed in these attempts I have served the above notice by affixation on 22nd Oct., 1963, between the hours 3 p. m. to 4 p. m. in the presence of Sri Nakuleshwar Chakrabarty, peon, Howrah. Sd./-H. P. Neogi, 22-10-63. Nakuleshwar Chakrabarty, 22-10-63. Affirmed before. 22-10-63." On 2nd Nov., 1963, the CIT passed an order under s. 33B of the IT Act, 1922. The order was passed ex parte as neither the assessee, i.e., the petitioner, nor anybody on his behalf was present. It is not necessary for us to go into the contents of this order except to take note of what the CIT says regarding the notice that he had served on the petitioner. For that purpose it is enough to set out the first two paragraphs of the CIT's order which were as follows : "As on calling for and examining the records of the proceedings under the IT Act, 1922, for the asst. yrs. 1959-60 to 1961-62, in the case of the above-mentioned assessee, I considered that the assessment orders passed by the ITO, D-Ward, Howrah, for these assessment years were erroneous in so far as they were prejudicial to the interests of the Revenue, a show cause notice was issued to the assessee by a letter dt. 19th Oct., 1963, for giving him an opportunity of being heard today, i.e., on 2nd Nov., 1963. 2. In response to this notice nobody has attended in person nor any written communication has been received so far, as served by the Inspector by affixation. I am satisfied that the notice has been served properly and therefore proceed to pass order ex parte on the basis of the merits of the case. As the points involved in all the assessments are common, they are disposed of by a consolidt. order."
(3.) IT will be noticed that the CIT was satisfied that proper service of the notice had been effected and that on the basis of this satisfaction he passed an order ex parte. The CIT cancelled the previous assessments of the petitioner under s. 33B of the IT Act and directed fresh assessments after proper enquiries and investigation. By a letter dt. 24th Jan., 1964, addressed by the appellant's solicitors, Mukherjee and Biswas, to the CIT, a protest was lodged against this order dt. 2nd Nov., 1963, It was stated in that letter that the notice to the appellant about a hearing on 2nd Nov., 1963, had in fact been delivered to the appellant on 18th Nov., 1963. The letter called upon the CIT to recall and rescind the notice of 19th Oct., 1963, as well as the order passed on 2nd Nov., 1963. There was further correspondence between the IT authorities and the appellant regarding this order passed on 2nd Nov., 1963, with which we are not really concerned for the purpose of deciding this appeal. The present petition was made some time in February, 1964, praying for a writ of certiorari to quash the order of 2nd Nov., 1963, as well as the proceedings relating thereto and for other appropriate writs and orders. Sinha, J. (as his Lordship then was) issued a rule nisi on 26th Feb., 1964. His Lordship also granted a temporary stay of the proceedings. Before the petition came on for hearing, an affidavit-in- opposition affirmed by one Krishnarao Bhadra Narasinham, ITO, " D " Ward, Howrah, was filed on behalf of the respondents. In that affidavit it was claimed that the notice dt. 19th Oct., 1963, was proper and valid and also that the notice had been properly and validly served. Beyond making a bare statement to this effect no further particulars of service had been mentioned in that affidavit. When the matter came up for hearing, the respondents, it appears, were asked to furnish particulars regarding the service of notice on the petitioner. Pursuant to that direction one Dwijendra Nath Banerjee, ITO, " D " Ward, Howrah, made an affidavit wherein, on the basis of information received from the records of the case, the deponent made certain statements regarding the mode of service of the notice upon the petitioner. The IT authorities were subsequently compelled to resile from all the statements made in this affidavit and to abandon the case made in this affidavit completely. It is necessary, however, to state what was the first case made out by the respondents on this point. The two relevant paragraphs of the affidavit of Dwijendra Nath Banerjee dt. 19th Jan., 1965, are as follows : "2. I state that notice dt. 19th Oct., 1963, under s. 33B of the IT Act, 1922, was sent by registered post to No. 7, Banerjee Para Street, Uttarpara, Hooghly as also No. 47, Banerjee Para Street, Uttarpara, Hooghly, and No. 2, Grand Trunk Road, Ballykhal, Howrah. The said letter was properly addressed and all necessary fees were properly paid. I crave leave to refer to the receipt of the postal authorities to that effect. It appears that the said registered letters were received by the assessee on the 22nd Nov., 1963. In view of the delay in receiving the said letters the IT Department made enquiries of the postal authorities and a copy of the letter written to the postal authorities and the reply from them are annexed herewith in a bundle and marked with the letter 'A'. It appears that the assessee was avoiding service. ;