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Validity of service of notice under section 148 of IT Act on

Posted on 18 June 2009 by Nirav Pankaj Shah

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Citation



Judgement

Validity of service of notice under section 148 of IT Act on wife of assessee in his absence

The service of notice on the wife of the assessee in his absence is entirely in accordance with the law as laid down in Order V Rule 15 of the CPC and section 282(1) of the Act.
ITAT, AMRITSAR BENCH, AMRITSAR
ITO
v.
Gurbax Singh Gill
ITA No. 67 (ASR)/2003
September 8, 2008
RELEVANT EXTRACTS:
** ** ** ** ** ** ** ** ** ** ** **
13. The provisions of the CPC regarding service of a summons issued by a civil court are contained in Order V thereof. Rule 15 of Order V of the CPC, which is the relevant provision for our present purpose reads as follows:
“Order V
ISSUE AND SERVICE OF SUMMONS
Rule 15 Where service may be on an adult member of defendant’s family – Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likehood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.” (emphasis ours)
14. Thus, as per Order V Rule 15 of the CPC, service of a summons issued by a civil court can be made on any adult member of the family of the defendant, residing with him, whether male or female. So, in accordance with section 282(1) of the I.T. Act, service of a notice can be made on any member of the family of the assessee, residing with him, whether male or female, where the assessee is absent from his residence at the time when the service of the notice is sought to be effected on him and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the notice on his behalf.
15. In the present case, service of the notice under section 148 was sought to be effected on the assessee at his residence on 10-11-1999. The assessee was absent from his residence at the time. There was no likelihood of his being found at his residence within a reasonable time. He had no agent empowered to accept service of the notice on his behalf. It was thus that the notice was served on Smt. Satwant Kaur, wife of the assessee, an adult member of his family residing with him.
16. We find that the said service of notice on the wife of the assessee in his absence is entirely in accordance with the law as laid down in Order V, Rule 15, CPC and section 282(1), I. T. Act.
17. The assessee has all through maintained that Order V, Rule 15, CPC runs as follows :-
“15. Where in any suit the defendant is absent and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him”. (emphasis supplied).
18. It has been hitherto remains the assessee’s case that since his wife is not a male member of his family, service of the notice on her is invalid in view of the express provisions of Order V, Rule 15, CPC.
19. However, the stand taken by the assessee is found to be grossly incorrect. Rule 15, Order V of the CPC as quoted by the assessee is as it was in force prior to its substitution by the extant Rule 15, as reproduced hereinabove, by the CPC (Amendment) Act, 1976, section 55 w.e.f. 1-2-1997. Clauses 58, sub-clauses (ii) and (iii) of S. O. R. (Gaz. Of India 8.4.74, Pt. I, s.2, Ext., P 312) in this regard is as under:-
“Clause 58, sub-clause (ii) and (iii) – Rule 15 provides that where in a suit the defendant cannot be found and has no agent to accept service, service may be made on any adult member of his family residing with him. The rule is being substituted to provide that the service of the summons may be made on any adult member of the family, male or female, where the defendant is absent from his residence and there is no likelihood of his being found at the residence within a reasonable time”. (emphasis supplied)
(source – The A.I.R. Manual Civil & Criminal -5th Edition Volume 5, page, 432)
20. Thus, Rule 15 of the Order V of the C.P.C., prior to its abovesaid substitution by the Amendment Act of 1976 (supra) did not recognize service on any female member of the defendant’s family, whereas after its substitution, it does so. As such, the applicable Rule 15 of Order V of the CPC is the extant Rule as reproduced hereinabove, and not that quoted by the assessee.
21. The Id. Counsel for the assessee has stressed that the existing Rule 15 of Order V of the C.P.C. was brought on the code only in 2002 and that it is not applicable retrospectively to the assessment year under consideration, i.e., 1997-98. This, however, is not correct. As noticed in the preceding paragraphs, the extant Rule 15 of Order V of the C. P. C. was substituted for the then Rule 15 or Order V by the Code of Civil Procedure (Amendment) Act, 1976, with effect from 1-2-1977. It has not been shown by the assessee that the same was adopted for the state of Punjab only in 2002. Therefore, the assessee’s contention in this regard holds no force and is rejected as such. N
22. In ‘CIT v. Kiran Devi Singhee’, 65 ITR 501 (Cal.), it has been held that the validity of service of notice effected in accordance with the CPC should be judged according to the provisions of the CPC as are applicable to that particular state. It cannot be disputed that the existing provisions of Order V, Rule 15, CPC as reproduced hereinabove, are applicable as such to the state of Punjab. No amendment has been made therein by the Hon’ble Punjab and Haryana High Court.
23. Thus, judged according to Rule 15, Order V of the CPC, as applicable to Punjab, as provided by section 282(1) of the Income-tax Act, the service of the notice under section 148 of the Income-tax Act on the wife of the assessee in his absence from his residence on 10-11-1999 is held to be valid. The case laws cited by the learned counsel for the assessee in this regard are, therefore, not applicable.
24. The order of the Id. CIT (A) in this regard is thus upheld, but due to the above reasoning. The ground raised by the assessee concerning this issue is, hence, rejected.




Tags :- validity service notice section 148 act




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