JUDGMENT
1. By this application under Section 256(2) of the Income-tax Act, 1961, the applicant (assessee) requires us to direct the Tribunal to refer the following questions for the opinion of this court :
“(a) Whether there was any material on record for the Appellate Tribunal to legally hotel that there was substituted service of the notice on the assessee appellant in accordance with the law?
(b) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in law in upholding the order of the Appellate Assistant Commissioner which was based on some alleged certification by the Income tax Officer that proper service was effected
and, which certification was acted upon without its being first put to the assessee, resulting in denial of the rules of natural justice and rendering the order of the Appellate Assistant Commissioner as illegal and void which could not be upheld in law by the Appellate Tribunal ?
(c) Whether the assessee who was an appellant before the Tribunal could be punished for following the legal advice of or for the apparent mistakes of the assessee’s counsel ?
(d) Was the Appellate Tribunal justified in law in rejecting the assessee’s application filed under Section 254(2) without hearing the assessee in spite of the jurisdiction, High Court’s order that grant of opportunity of hearing on such applications is mandatory and a must (sic) ?
(e) Was the Appellate Tribunal justified in law and it did not act arbitrarily in rejecting the first ever prayer of the assessee made for a short adjournment of hearing in the assessee’s own appeal which was sought by the assessee as per the advice of the assessee’s counsel for filing paper book connected with the assessee’s appeal as per the rules of the Appellate Tribunal and time for filing which is invariably extended right up to even the date of hearing?
(f) Was the Appellate Tribunal justified and correct in law in upholding the order of the Appellate Assistant Commissioner which was stated to be founded on Inspector’s report dated March 11, 1986, but which report of the Inspector was never put to the assessee before it was acted upon?
(g) Was there any material with the Appellate Tribunal to hold in law that the ex parte assessment made by the Income-tax Officer was in accordance with the law especially when there was no material to show that there was service of statutory notice in accordance with the law ?”
2. In this case, the Income-tax Officer passed the ex parte order as the applicant (assessee) failed to appear before him pursuant to the notice issued under Section 143(2). The service was effected on the applicant by resorting to affixation. The dispute was carried in appeal to the Appellate Assistant Commissioner, who dismissed the appeal. Then the dispute was further carried to the Tribunal which too decided the appeal ex parte.
3. None of the questions raised by the assessee in this application relates to the merits of the case. All the questions set out in the application raise the controversy whether or not service was properly effected. Nothing
has been said that there was violation of any provision of the law while resorting to service by affixation. The Tribunal recorded the finding of fact that service was properly effected on the assessee by affixation and, when he failed to appear, the ex parte order was rightly passed by the Income-tax Officer. This is a finding of fact. In our opinion, no question of law arises. Therefore, the application is dismissed.