JUDGMENT B.P. Jeevan Reddy, C.J.
1. The Income-tax Appellate Tribunal, Delhi Bench, has stated the following two questions under Section 256(1) of the Income-tax Act, 1961 :
"(1) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that there was valid service of notices under Section 147(a) of the Income-tax Act, 1961, for the assessment year 1949-50 and under Section 34(1)(a) of the Indian Income-tax Act, 1922, for the assessment years 1952-53 to 1955-56 on the assessee-Hindu undivided family ?
(2) If the answer to the first question is in the negative and in favour of the assessee, whether the assessment made in pursuance of the said notices for the five assessment years 1949-50, 1952-53 to 1955-56 are valid in law?"
2. The assessee is a Hindu undivided family represented by its karta, Kailash Chand Jain. During the years 1949 to 1955, it carried on banking business under the name and style of Mansa Ram and Sons, with its head office at Dehradun and branches at Mussoorie, Saharanpur, Rishikesh and Hardwar. In this reference, we are concerned with the validity of the reassessment orders made under Section 147 for the years 1949-50, 1952-53, 1953-54, 1954-55 and 1955-56. The ground upon which the reassessment orders are said to be bad is that the notices under Section 34(1) of the Indian Income-tax Act, 1922, and under Section 147 of the Income-tax Act, 1961, were not served upon the assessee. Inasmuch as such service is a condition precedent to a valid assessment, it is urged that reassessments made are totally illegal and void. For a proper appreciation of the question, it is necessary to state a few more facts as they appear from the statement of the case and the Tribunal's order. In the year 1955, there was a huge rush at the assessee's bank. The assessee could not meet all the demands of its customers. Insolvency petitions were filed by the creditors wherein the District Judge, Saharanpur, appointed the official receivers at Saharanpur and Dehradun to be interim official receivers of the entire properties of the assessee-Hindu undivided family and to administer them to the best advantage of the creditors with full powers of administration (vide order dated July 26, 1955, in Insolvency^Case No. 1 of 1955). In pursuance of this order, the interim official receivers took charge and continued as such till July 5, 1968. There was another Insolvency Petition No. 8 of 1971, in which the assessee-Hindu undivided family was adjudged insolvent by the District Judge, Dehradun, by his order dated April 22, 1976. During these proceedings, the Official Receiver, Dehradun, was again appointed as interim receiver of the properties of the assessee and, in this capacity, he again functioned as interim official receiver of the properties of the assessee from 1971 till April 23, 1976 and, thereafter, as the official receiver.
3. With respect to the assessment years 1952-53, 1953-54, 1954-55 and 1955-56, notices under Section 34(1) of the 1922 Act were issued on January 7, 1960. The notices were issued to the assessee-Hindu undivided family represented by its karta. These notices were served on the interim official receiver, Dehradun, on January 8, 1960. With respect to the assessment year 1949-50, notices under Section 147/148 of the 1961 Act were issued on February 28, 1966, and were served upon the clerk of the interim official receiver on March 3, 1966. In response to the notices served upon him, the receiver filed returns for the four assessment years 1952-53 to 1955-56 on November 7, 1960, November 10, 1960 and November 19, 1960. Inasmuch as the interim receiver had no concern with the said assessment years, the returns filed by him were not taken into account. Thereupon, returns were filed by the karta of the assessee-Hindu undivided family on May 22, 1971. It is on the basis of these returns that the reassessment orders were passed. So far as assessment year 1949-50 is concerned, a return was filed by the karta of the assessee-Hindu undivided family on February 10, 1967, on the basis of which an order of reassessment was made. During the course of reassessment proceedings, the asses-see raised a contention through its letters dated September 15, 1972 and October 12, 1972, that the notices under Section 34/148, not having been served upon the assessee-Hindu undivided family, no reassessment can be made on the basis of such notices. The Income-tax Officer rejected the said objection and passed orders of reassessment. The appeals filed by the assessee were rejected by the Appellate Assistant Commissioner, whereupon the matter was carried to the Appellate Tribunal in further appeal. It would be appropriate to notice the findings of the Tribunal :
(i) "It is an undisputed fact that insolvency petitions were filed against the assessee-family by its creditors and that in the said insolvency proceedings, the learned District Judge, Saharanpur appointed, by his order dated July 26, 1955 in Insolvency Case No. 1 of 1955, the official receivers at Saharanpur and Dehradun to be the interim official receivers of the entire properties of the debtors in the two districts of Saharanpur and Dehradun, respectively, to take possession of the said properties and to administer them to the best advantage of the creditors, with full powers of administration, including that of filing suits on behalf of the debtors for the realisation of their assets.
(ii) The interim receivers were in charge of the properties till July 5, 1968. Subsequently, in Insolvency Petition No. 8 of 1971, the Official Receiver, Dehradun, was again appointed as the interim receiver of the properties of the assessee and he continued as such till April 23, 1976, whereafter he continued as the official receiver under the orders of the court.
(iii) Notices under Section 34/147, 148 were served upon the interim receiver, Dehradun. The dates on which these notices were served fell within the first spell of the interim receivers, which commenced on July 26, 1955, and continued up to July 5, 1968. During this period of 13 years, the interim receivers were in possession and administration of the properties of the assessee-Hindu undivided family.
(iv) The notices were, undoubtedly, addressed to the assessee-Hindu undivided family, Mansa Ram & Sons. It is not, and also cannot be, the case of the assessee that these five notices were not passed on to him by the interim official receiver and that he was not aware or had no knowledge of these notices at all. On the contrary, the assessee's conduct in 1950-51 assessment shows that the assessee was fully aware of the legal position, as he had made an endorsement on the office copy of the notices under Section 147(a), dated March 27, 1967 to the effect that 'the Official Receiver functioning under the District Magistrate is handling the affairs of Mansa Ram & Sons' ".
(v) The karta of the assessee-Hindu undivided family filed returns in pursuance of the said notices, but did not raise any objection whatever about the service of notices. These returns were filed on May 22, 1971, with respect to the assessment years 1952-53 to 1955-56 and on February 10, 1967, with respect to the assessment year 1949-50. It is only by its letters dated September 15, 1972, and October 12, 1972, that the assessee chose to raise this objection. In the circumstances, the assessee cannot complain that there was no service of the notices under Section 34/147, 148 upon him, nor can the reassessment orders be invalidated on the ground of non-service of the said notices."
4. After the orders of the Tribunal, the assessee applied for and obtained this reference.
5. Sri V. B. Upadhyaya, learned counsel for the assessee, raised the following contentions :
(i) That the notices were not served upon the assessee-Hindu undivided family in the manner prescribed by Section 282 of the Act. The service of notice upon the interim receiver is wholly unauthorised and is liable to be ignored. The interim receiver was not authorised to receive the said notices on behalf of the assessee-Hindu undivided family.
(ii) That the interim receiver was appointed not with respect to the assessee-Hindu undivided family but with respect to the banking business carried on by a partnership, Mansa Ram and Sons. The Tribunal has confused itself on this factual aspect. In the year 1952, there was a partial partition amongst the members of the Hindu undivided family whereunder the banking business was taken over by a partnership wherein all the members of the assessee-Hindu undivided family were partners. The immovable properties remained with the Hindu undivided family and the Hindu undivided family continued. The appointment of interim receivers in Insolvency Cases Nos. 1 of 1955 and 8 of 1971 was in respect of the banking business done by the said firm and was totally unconnected with the assessee-Hindu undivided family. This fact would be evident from the assessment order relating to 1955-66, copy of which is available in the records of I. T. R. No. 221 of 1981. If so, the service of the notices under Sections 34/147, 148 on the interim receiver was totally unauthorised and irrelevant and cannot constitute the foundation for making a valid reassessment against the assessee-Hindu undivided family.
6. There was a good amount of controversy on the question whether the interim receiver was appointed with respect to the properties of the assessee-Hindu undivided family or with respect to the banking business of the partnership-firm. Learned counsel for the assessee sought to contend that the appointment was only with respect to the banking business of the partnership-firm, on the basis of (a) paragraph 13 of the statement of the case, and (b) the assessment order relating to the assessment year 1965-66 (copy of which is found in the record of I. T. R. No. 221 of 1981--Mansa Ram and Sons v. CIT [1991] 191 ITR 46 (All) and which was posted for hearing along with this reference). So far as the assessment order relating to the year 1965-66 is concerned, we are afraid, we cannot treat it as part of the record of this reference, nor can we read that order into this record. We have to confine ourselves to the statement of the case and the annexures thereto. We cannot travel beyond the same. Now, so far as paragraph 13 of the statement of the case is concerned, we must first state what it deals with. Besides the two questions referred by the Tribunal and which we are considering now, the assessee had asked two sets of two questions each also to be referred. Paragraph 13 deals with one such set of two questions. It reads as follows :
"The remaining two questions in the reference applications for the assessment years 1953-54 to 1955-56 also cannot be referred as they are also pure questions of fact. The Tribunal examined the question regarding the ownership of the banking business in paragraphs 42 to 48 of its order in the appeal relating to the assessment year 1953-54. It would be seen from a perusal of the findings in paragraphs 46 to 48 that we have followed the findings in the assessee's own case in I. T. A. No. 738 and 740 (Delhi) of 1973-74 and I. T. A. No. 922 (Delhi) of 1976-77 dated May 31, 1978, and also the judgment and order of the insolvency judge of Dehradun in Insolvency Case No. 8 of 1971 dated February 24, 1976, where it was held that the banking business belonged to a partnership-firm consisting of Mahabir Prasad Jain and his four sons as partners. The Tribunal pointed out that the learned District Judge declared the firm of Mansa Ram and Sons and its partners as insolvents. The above findings of the Tribunal are pure findings of fact from which no point of law can be spelt out. We are, therefore, unable to accept the contentions of learned counsel for the assessee that any question of law arises out of these findings of the Tribunal."
7. The above paragraph, according to learned counsel for the assessee, does establish his contention that the insolvency proceedings were taken only against the firm, Mansa Ram and Sons, and were, in no way, concerned with the assessee-Hindu undivided family, we are afraid. We cannot accept the said proposition for more than one reason. Firstly, the said paragraph 13 refers only to Insolvency Case No. 8 of 1971. It does not refer to Insolvency Case No. 1 of 1955 wherein the interim receivers were appointed for the first time, and it is those interim receivers who received the notices in question on behalf of the assessee-Hindu undivided family. The said notices were not received by the interim receiver appointed in Insolvency Case No. 8 of 1971 referred to in paragraph 13. Secondly, the said observations were made while declining to refer two other questions under Section 256. The statement made in the said paragraph cannot militate against, much less ineffectuate, the repeated statements made in the order of the Tribunal as well as in the statement of the case (relevant to the questions referred) to the effect that the interim receiver was appointed in respect of the business and properties of the assessee-Hindu undivided family. A perusal of the order of the Tribunal shows that, from the very beginning to the end of the discussion, the Tribunal proceeded on the footing that the banking business was being done by the assessee-Hindu undivided family and that the insolvency proceedings were taken against it and the interim receivers were appointed in respect of the assessee-Hindu undivided family's business only. Since this is a reference under Section 256, we cannot depart from the oft-repeated statement in the order of the Tribunal as well as in the statement of the case. We must take that statement of fact as correct and proceed. Mr. V. B. Upadhyaya then contended that since the statement of the case contained inconsistent statements of fact, we should call for a supplementary statement from the Tribunal on this aspect. We are not satisfied that such a course is called for in the circumstances of the case, for the very same reasons which we have recorded hereinbefore. We shall, therefore, proceed on the footing that the interim receivers were appointed in the year 1955 with respect to the business and properties of the assessee-Hindu undivided family and that they took possession of the entire business and properties of the assessee-Hindu undivided family and were administering the same till the year 1968, with all the powers including the power to sue and be sued.
8. As a proposition of law, there can be little dispute with the proposition that the service of notice under Sections 34/147, 148 upon the assessee is a condition precedent to the making of a valid reassessment. This is well established by the decision of the Supreme Court in CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147 as also from a decision of a Full Bench of this court in Laxmi Narain Anand Prakash v. CST [1980] 46 STC 71. Though the Full Bench decision of this court is rendered under the U. P. Sales Tax Act, the relevant provisions of the Sales Tax Act were understood as reading the same as Sections 34 and 148 and the decision is influenced mainly by decisions rendered under the Income-tax Act.
9. The real question is whether service of the notices on the interim receiver is service upon the assessee, Section 282 of the Income-tax Act, 1961, prescribes the mode of service of notice. Section 63 of the 1922 Act is almost in the same terms (the only difference is that in the case of a Hindu undivided family, the previous Act permitted service of notice upon any adult male member of the family, whereas the present Act permits service on any adult member of the family. This distinction is not relevant for the present purpose). Section 282 reads thus :
"282. (1) A notice or requisition under this Act may be served on the person therein named either by post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908 (5 of 1908).
(2) Any such notice or requisition may be addressed-
(a) in the case of a firm or a Hindu undivided family, to any member of the firm or to the manager or any adult member of the family ;
(b) in the case of a local authority or company, to the principal officer thereof ;
(c) in the case of any other association or body of individuals, to the principal officer or any member thereof ;
(d) in the case of any other person (not being an individual), to the person who manages or controls his affairs."
10. Sub-section (1) shows that a notice under the Act may be served either by post or as if it were a summons issued by the court under the Code of Civil Procedure. Sub-section (2) provides that any such notice addressed to a Hindu undivided family may be served upon the manager or any adult member of the family. This section, no doubt, does not expressly say that where an interim receiver is appointed under the provisions of the Insolvency Act, such a notice may be served upon such interim receiver, but, in our opinion, the provisions of the said Act must be read consistent and in harmony with the provisions of the Income-tax Act. In this case, the interim receivers were appointed by the court, and they were empowered to take possession of the entire properties of the assessee-Hindu undivided family and to administer them to the best advantage of the creditors, with full powers of administration including that of filing a suit on behalf of the debtors for the realisation of their assets (see paragraph 7 of the Tribunal's order). In such a situation, the interim receivers would also be competent to receive notices on behalf of the assessee-Hindu undivided family. No attempt was made by the assessee before any of the authorities under the Act to show by producing the order/warrant of appointment of the interim receivers that the powers conferred upon them did not include the power to receive notices on behalf of the assessee-Hindu undivided family. Since full powers of administration were conferred upon the interim receivers and also because they were appointed in insolvency proceedings held against the assessee-Hindu undivided family, we must hold that the interim receivers were authorised to receive the said notices on behalf of the assessee-Hindu undivided family. It is further found by the Tribunal that these notices were passed on by the interim receivers to the assessee. The assessee, in fact, filed returns in response to them and also participated in the assessment proceedings, though at a later stage, it chose to raise this objection.
11. Mr. Upadhyaya, learned counsel for the assessee, then argued that if the service of notices upon the receivers was a proper service, then the assessment ought to have been made upon the receivers as the representative-assessee under Section 160 of the 1961 Act. It must be remembered that the said notices were addressed to the Hindu undivided family. They were not addressed to the receivers as the representatives of the assessee-Hindu undivided family. Moreover, the income of the assessment years concerned was not received by the receivers and if so, no assessment could be made upon the receivers under Section 160(1)(iii). Section 160, in so far as it is relevant, reads as follows :
"160. (1) For the purposes of this Act, 'representative assessee' means . . . .
(iii) in respect of income which the Court of Wards, the Administrator-General, the Official Trustee or any receiver or manager (including any person, whatever his designation, who in fact manages property on behalf of another) appointed by or under any order of a court, receives or is entitled to receive, on behalf or for the benefit of any person, such Court of Wards, Administrator-General, Official Trustee, receiver or manager."
12. Since, admittedly, the receivers were not in receipt of the income in respect of the assessment years concerned herein, no assessment could be made upon them under the said provision.
13. For the above reasons, we answer the first question referred in the affirmative, that is, in favour of the Revenue and against the assessee. Since we have answered the first question in the affirmative, the second question does not arise and need not be answered. The reference is answered accordingly. No costs.