JUDGMENT
Narasimham, C.J.
1. On the 30th March, 1964, the income-tax Officer, Purnea, assessed the petitioner to income-tax under Section 34, read with Section 22 (2) of the Income-tax Act, 1922, the year of assessment being 1949-50. He reopened the assessment for that year as he felt that certain facts were not fully and truly disclosed and issued notice under Section 34, read with Section 22 (2) of the Act. But as no additional information was supplied by the assessee, he assessed him to the best of his judgment on that date (30th March, 1964). On appeal the Appellate Assistant Commissioner upheld the order of assessment. One of the important points taken up before him was that the actual notice informing the assessee that assessment for 1949-50 was being reopened was served on him after the 1st April, 1958, more than eight years after the end of the assessment year, namely, after the 31st March, 1950, and that, consequently, the reopening of the assessment was barred by limitation. This was rejected by the Appellate Assistant Commissioner, who held that the notice was served on him on the 25th March, 1958, and also on the 29th March, 1958. The same point was urged before the Income-tax Tribunal which upheld the view taken by the Appellate Assistant Commissioner. Then on an application under Section 66 (1) of the Income-tax Act, the Tribunal referred the following two questions for opinion of this Court:–
“(1) Whether in the facts and circumstances of the case the notice under Section 34 (1) (a) for the assessment year 1949-50 had been properly served on the assessee on the 29th March. 1958?
(2) Whether in the facts and circumstances of the case the re-assessment proceedings under Section 34 for the assessment year 1949-50 are barred by limitation.”
2. The facts as found by the Income-tax authorities are as follows : A notice under Section 34 of the Act was sent for service on the assessee through a process-server of the department who was accompanied by the Inspector of Income-tax. They both went to Madhipura where the petitioner resided on the 25th March, 1958, and met him there. The process-server present-
ed the notice to him, but the assessee refused to accept the same “after being acquainted with the facts of the notice”. The Inspector ot Income-tax then remained there and sent the process-server to the Income-tax Officer of Purnea “for further instructions”. There is no evidence adduced by either party to show what happened when the process-server returned to Purnea. It is not known as to whether he met the Income-tax Officer and what further instructions that officer gave him. But the process-server returned to Madhipura and made a great search for the petitioner on the 28th March, 1958, and again on the 29th March, 1958, but he could not meet him. Then he hung the notice at a conspicuous part of the house of the petitioner at Madhipura on the 29th March, 1958, in the presence of witnesses. The Income-tax Officer examined the process-server on oath and also examined two of the witnesses and then held that the notice was duly served on the petitioner on the 29th March, 1958. and that view has been upheld by all the superior Income-tax authorities.
3. There was also an attempt to serve the process by registered post which was sent to the assessee on the 24th March, 1958. But that was received on the 3rd April, 1958, after the expiry of the period of limitation. Hence service by registered post need not be further discussed here.
4. Mr. Tarkeshwar Prasad for the asses-see contended that on the facts as found it could not be held in law that the notice under Section 34 of the Act was duly served on the petitioner on the 29th March, 1958. He urged that the notice should have been sewed in the manner provided in Rule 17 of Order 5 of the Code of Civil Procedure, read with Sec 63 of the Income-tax Act. According to him, before serving the notice by affixture at the residence of the petitioner at Madhipura on the 29th March, 1958, the serving officer should have used “all due and reasonable diligence” to trace out the assessee and that there is no finding of any of the Income-tax authorities to the effect that the process-server used all due and reasonable diligence in tracing out the assessee. It is true that there is no express finding to that effect, but, the Income-tax Tribunal and the lower authorities have merely held that notice under Section 34 was duly served on the petitioner on the 29th March, 1958.
5. Rule 17 of Order 5 of the Code of Civil Procedure consists of two parts. The first part is to the effect that whether the defendant refuses to sign the acknowledgment of the notice the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides. The second part is to the effect that where the serving officer after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf (omitting immaterial portions) the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house of the defendant. It will be noticed that the exercise of due and reasonable
diligence with a view to trace out the party arises only when he was not round by the process-server. If, however, he was met by the process-server and he refused to accept the notice when tendered by the process-server it is sufficient if the process-server affixes a copy of the summons at a conspicuous part of his house. Here the process-server met the assessee on the 25th March, 1958, and tendered the notice which was refused. It is true that he returned to Purnea there after and again went back to Madhepura and searched for the assessee on the 28th March, 1958, and 29th March, 1958, and did not see him. Then he served the notice by affixture- But in examining the validity of the service oi notice by such a affixture on the 29th March, 1958, the fact that the process-server had met the assessee on the 25th March, 1958, and tendered the notice which was refused by the assessee cannot be overlooked. The incidents from the 25th March, 1958, till the 29th March, 1958, form one transaction. Rule 17 of Order 5 does not say that where there is a refusal by the defendant to accept the notice the processserver should forthwith serve the notice by affixture Some reasonable time may elapse between the actual tender of the notice by the process-server to the defendant, his refusal to accept the same and the subsequent affixture of the notice at his residence. In my opinion, the mere fact that there was an interval of three days between the date of refusal of the assessee to accept the notice (25th March, 1958) and the date of affixture (29th March, 1958) would not suffice to show that there was non-compliance with the requirements of Rule 17 of Order 5. It is true that during this interval the process-server returned to Purnea for instructions But there is no evidence as to whether he met the Income-tax Officer and, if so, what instructions were given to him. But the fact remains that he returned to Madhepura and after a vain search for the assessee on the 28th March, 1958, and 29th March, 1958, served the notice by affixture.
6. Mr. Tarkeshwar Prasad, however, urged that in view of the conduct of the process sever in returning to Purnea for instructions and again going to Madhepura on the 28th March, 1958, it must be held that the affixture of the notice was not because the assessee refused to accept notice on the 25th March, but because he could not be found and that consequently the latter part of Rule 17 of Order 5 of the Code of Procedure would apply. In my opinion this argument cannot be accepted in the absence of any evidence as to what happened when the process server returned to Purnea. The assessee could easily have summoned the process-server for cross-examination before any of the three lower Courts of fact with a view to ascertain whether the process-server met the Income-tax Officer and, if so, what instructions were given to him. He did not take any such step. On the facts found by all the lower Courts it must be held that the affixture of the notice on the 29th March, 1958, is intimately connected with the refusal of the assessee to receive the notice when personally tendered to him on the 25th March, 1958, and that consequently the first part of
Rule 17 of Order 5 of the Code of Civil Procedure would apply. The service must, therefore, be held to have been validly effected on the 29th March, 1958.
7. Mr. Tarkeshwar Prasad thereupon urged that there was only an attempt to effect substituted service under Order 5, Rule 20, of the Code of Civil Procedure and that attempt was not successful. In my opinion the question of substituted service under Rule 20 does not arise here. For such substituted service first of all there should be an order of the authority concerned (here the Income-tax Officer) directing the service of notice under Rule 20, and then only the notice may be served by affixture both at the place of residence of the assessee and at a conspicuous part of the office of the Income-tax Officer. The assessee had at no stage urged that there was an order of the Income-tax Officer to effect service on him under Order 5, Rule 20, Code of Civil Procedure nor did he make any attempt to elicit the necessary evidence by cross-examining the process-serve! Or any other, competent witness. Hence Mr. Tarkeshwar Prasad’s reliance on Rule 20 of Order 5 is futile,
8. For these reasons the questions are answered as follows : —
(1) Question No. 1 :— This is answered in the affirmative. The notice was properly served on the assessee on the 29th March, 1958.
(2) Question No. 2 :– This is answered in the negative. The assessee must pay costs of Rs. 200/- to the respondents,
U.N. Sinha, J.
9. I agree.