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Showing contexts for: Post of process server in Income-Tax Officer, 'I' Ward And Ors. vs B.N. Bhattacharya on 3 December, 1976Matching Fragments
6. It had been further stated that the process server was unable to serve the notices personally at 8/1, Dacres Lane, as well as at 19, Mayfair Road. But as the report of the process server was not produced before the learned trial judge and as there was no further affidavit clarifying the circumstances under which the notices were affixed, the learned judge was unable to find out whether the notices had been affixed in accordance with the requirements of law. The learned judge did not as such disbelieve the statement in the affidavit-in-opposition that the notices had been served by affixation. But the learned judge was unable to find the circumstances under which the notices were affixed and, therefore, could not hold that those were affixed in accordance with law. Such circumstances have been sought to be clarified by placing reliance on the report of the process server and the entries in the order sheets of the Income-tax Officer and we required the production of such records in order to find out under what circumstances the process server came to affix the notices, alleged to have been affixed at 8/1, Dacres Lane. All the records were produced and therefrom it appears the circumstances in which the process server had come to affix the notices. In the declaration of the process server it has been stated that after he was ordered by the Income-tax Officer to serve the notices, he went to serve the said notices on 28th March, 1962, at 12'30 p.m. and again on 29th March, 1962, at 3.50 p.m. but could not find the respondent and enquired of the persons who were there whether they would accept service. But they declined to do so and they refused to inform as to when and where the respondent would be available. Thereupon, the process server stated that he informed the concerned Income-tax Officer and the concerned Income-tax Officer had directed him to try again at 19, Mayfair Road, and there also he met with the same fate and thereupon pursuant to the direction of the Income-tax Officer the process server stated that he had affixed the said notices at 8/1, Dacres Lane, on 30th March, 1962. The said declaration is witnessed by the Inspector of the income-tax department. The order sheet of the Income-tax Officer indicated that on 30th March, 1962, he had been informed that the notices could not be served at 19, Mayfair Road, and thereafter he directed service by affixation at 8/1, Dacres Lane. The entries in the order sheet on the 31st March, 1962, indicated that the Income-tax Officer had examined the Inspector and the process server and he was satisfied that the notices were validly served. On behalf of the respondent it was contended that the said report of the process server was defective. It is true that the report has not been stated in very clear language, but if the report is read in its entirety along with the entries in the order sheet, it would be apparent that the process server first went to 19, Mayfair Road, and thereafter went to 8/1, Dacres Lane. On behalf of the respondent it was further submitted that in order to be a valid service by affixation, it must be shown that the process server had gone to serve the notice at reasonable time. Going to a businessman's house when he was not supposed to be available was not making proper effort. It was further contended that proper and substantial efforts must be made to find the persons to be served. Reliance in this connection was placed on the observations of this court in the case of Kassim Ebrahim Saleji v. Johurmull Khemka [1916] 20 CWN 173; AIR 1916 Cal 181 (2) and Jhabarmull Dudhwalla v. Bhagatram Serowgie [1947] 51 CWN 189. Whether in a particular case there were proper and substantial efforts or whether reasonable efforts had been made to serveyor find the person to be served, depends upon the facts and circumstances of that case. In the instant case, it is to be borne in mind that notices for the subsequent years and previous years had been served by registered post and these have been accepted. Here also the process server states that he went on two different dates at two different times at two different places but he could not find the respondent nor get any information about the time and place where the respondent could be found. In the background of the instant case, in our opinion, it could not be said that the notices had not been properly served. Further, in view of the fact that the Income, tax Officer, who had issued the said notices, was satisfied after examining the process server and the Inspector that the notices were served in accordance with Rule 19 of Order 5 of the Code of Civil Procedure. In that view of the matter, we are of the opinion that the respondent has failed to establish that the notices under Section 34(1)(a) of the Income-tax Act for the assessment years 1940-41 to 1950-51 had not been served in accordance with law.