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H. P. Neogi, 22-10-63."

These two reports should be read with an affidavit made by Shri H. P. Neogi on 22nd October, 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 October, 1963, I received a notice No. J 26569 C. T. dated 19th October, 1963, from the Commissioner 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 October, 1963, between the hours 1 p.m. to 2 p.m. and again on 22nd October, 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 October, 1963, between the horse 3 p.m. to 4 p.m. in the presence of Sri Nakueshwar Chakrabarty, peon Howrah.

Mr. Sen appearing for the appellant condemned the two reports of H. P. Neogi as well as his affidavit with great vehemence. He complained first that No. 2, Grand Trunk Road, Ballylhal, Howrah, being the address of a company which had already gone pinto voluntary liquidation there was no point in affixing the notice at that address. The whole story of the inspector centers round what he had been told by top persons who are alleged to have been working at No. 2, Grand Trunk Road, Ballykhal. These two person whose names have not been given in the reports are alleged to have top the inspector that Ramendra Nath Ghosh was a member of their family and that Ramendra Nath Ghosh was usually available there and had just left for Calcutta on the 21st October, 1963. They are also alleged to have asked the inspector to call on the following day. Inspector Neogi records that he fixed a time and left a slip requesting the appellant top wait for him. Then on the next day when he called, he met the same two persons again and was told that the appellant had left the station and was expected back only after a month or so. They could not give the correct address of the place for which the appellant had left. From these statements, inspector Neogi concludes that "they were avoiding the service of the notice". By "they" inspector Neogi, of course, was referring to these two persons. He could not be referring top the appellant by the word "they". Thereafter, inspector Neogi served the notice by affixation under orders of the Income-tax Officer. In the affidavit of Neogi there is no reference to these two persons and no reference to the alleged conversation that took place between himself and these two unnamed persons. On this state of the evidence Mr. Sen contented that the whole case of the income-tax authorities regarding service of the notice by affixation must be taken as a case based on hearsay of the worst description. The persons with whom the inspector had a conversation are not only not named but their connection with the appellant is not mentioned and what is more significant is, as Mr. Sen points, out, that in the affidavit of 22nd October, 1963, there is no mention about these two persons. The reports dated 1st October and 22nd October, 1963, standing by themselves, cannot in any case be treated as evidence. Even if the affidavit be taken as evidence the whole story about the two named relations of Ramendra Nath Ghosh does not appear there at all. Mr. Sen contends that on these materials the learned judge should not have come to the finding that the service of the notice by affixation had been done really. Indeed, Mr. Sen contends that the learned judge should not have believed the story of Inspector Neogi at all. There are some controversies also as to whether No. 2, Grand Trunk Road address was a disclosed address of the appellant. Mr. Sen sought to rely on a letter dated 10th October, 1963, alleged to have been addressed by the appellant to Income-tax Officer, "L" Ward, Company District I, in which the appellant gives notice of discontinuance of business of Bally Pug Mill Works Private Ltd. under section 176(3) of the Income-tax Act, 1961, and also told the Income-tax Officer that the address of 2, Grand Trunk Road, Ballykhal, Howrah, was closed for the time being. There is also a statement in that letter to the following effect :

Neogi said that when he went to serve the notice at No. 2, Grand Trunk Road, he found that the premises looked an office. He knew this office to be the office of Bally Pug Mills. He found two men there who described the appellant as a member of their family. He asked them for their names but they refused to disclose their names. He could not explain why he did not mention their refusal to disclose the names either in his report or in his affidavit. The only explanation he gave was that his report was a short one and that is why he did not mention this fact. According to Neogi he had been told by his office that No. 2 Grand Trunk Road was the residential address of Ramendra Nath Ghosh. He said that one Mr. Chowdhury, Income-tax Officer, had given him this information. Neogi did not know that the Uttarpara address was a residential address. He had only been asked to serve the notice at No. 2, Grand Trunk Road, and nothing more. The two persons whom Neogi met at the office had told him on the second day that Ramendra Nath Ghosh had left the station and would be coming after a month. He then contradicted his earlier statement and stated that he had not been told by anybody whether the premises at No. 2, Grand Trunk Road, was a residence or an office. He had only received the directions that he was to serve the notice at No. 2, Grand Trunk Road.

(vi) No attempt at all was made to serve the notice either personally or by affixation at the residence. The only attempt was made at the office address;
(vii) Ordinarily, the practice of the income-tax authorities is to serve such notices by affixation at the residential address of an assessee.

Mr. Gouri Mitter realised that his case must stand or fall with the evidence of H. P. Neogi. He could not, however, argue that Neogis evidence was completely satisfactory. So, with his usual persuasiveness Mr. Mitter asked us to accept the evidence of Neogi in spite of its short-comings on the ground that it was not inconsistent with his affidavit of October 22, 1963. We find it impossible, however, to rely on the evidence of Neogi. Neogi in his evidence says that he knew the premises at No. 2, Grand Trunk Road to be the residence of Ramendra Nath Ghosh and that this was the residential address of Ramendra Nath Ghosh and that this was there residential address of Ramendra Nath Ghose which had been given to him by his office (Qq. 90-91). Later on he had to admit that No. 2, Grand Trunk Road, was the office address of Bally Pug Mills Ltd. A question was put to him if he had been told whether No. 2, Grand Trunk Road, was the office address or the residential address. To that question his answer which is to be gathered from there questions (Qq. 104-106) seems top be this that he had only been asked to serve the notice at No. 2, Grand Trunk Road by affixation and he was not told that that was either his office address or his residential address. Thus he contradicts his earlier evidence. Narasingham in his evidence had, however, stated (in answer to question 102) that he had supplied the residential address of Ramendra Nath Ghosh to the Commissioners Office "for all purposes under section 33B" and Narasingham of course made it quite clear that residence of Ramendra Nath Ghosh was in Banerjee Para Lane, Uttarpara, and that it was only his office that was at No. 2, Grand Trunk Road (Qq. 114-115).