Wealth Tax Act (XV of 1963)---

---Ss. 16(4)(5) & 41---Civil Procedure Code (V of 1908), O. V, R. 17-- Service of notices---Ex parte assessment ---Assessee a Cooperative Housing Society, was served statutory notices---Process-server reported that assessee was not traceable---Process was issued to be served on Authorised Representative of the assessee---Service of notice was made through affixture by Inspector---No body turned up thus ex pane assessment was made---First Appellate Authority upheld the action of the Revenue---Feeling aggrieved, assessee came up for further appeal---Held, if the notice for hearing of appeal could not be served, the Appellate Authority ought to have got the service effected through affixture as provided in O.V, R.17 of C.P.C. and S. 41, Wealth Tax Act, 1963---Absence of such attempt on the part of First Appellate Authority had resulted into legal lacuna and rendered the ex parse assessment improper---Valuable right of service in accordance with law had been denied to the assessee---Appellate Tribunal set aside the impugned order and case was remanded to First Appellate Authority to decide the appeals on merits in circumstances.

Khurshid Ahmad for Appellant.

Khalid Aziz Banth, D.R. for Respondent.

Date of hearing: 5th April, 1997.

ORDER

NASIM SIKANDAR (JUDICIAL MEMBER). ---These further appeals in the years 1982-83 to 1987-88 arise out of a consolidated order recorded by AAC, Range-II, Lahore on 31-12-1991 whereby the appeals of the assessee were rejected.

2. The assessee is a Cooperative Housing Society, which has served statutory notices under sections 17 and 16(4) of the Wealth Tax Act, 1963 for the years under consideration. However, the Process Server reported that the assessee was untraceable on the address given. Thereupon, as per consolidated assessment order recorded for these years on 16-8-1988 the process were issued to be served on the A.R for the assessee Mr. Nisar Ahmad. However, on his refusal to accept, the service of notices was made through affixture by the Inspector. Since no body turned up even there after ex parte assessments in all these years under section 16(5) of the Wealth Tax Act were recorded computing taxable wealth at Rs.20,83,007, Rs.94,47,802, Rs.1,07,52,897, Rs.57,95,172, Rs.43,57,890 and Rs.37,25,339.

3. First appeals before the aforesaid authority failed as the assessee did not turn up to prosecute them. Learned first appellate authority observed that notices issued from time to time for appearance could not be served in spite of best efforts of the Notice Server. Therefore, the appeals were decided ex pare and the action of the assessing officer was maintained. This has brought the assessee in further appeal before us.

4. Parties have been heard. Learned counsel for the assessee vehemently controverts the findings recorded by the authorities below. It is contended that the assessee has a registered office and is still available at the same address. Further states that the assessing officer also recorded a wrong finding of fact, that attempts were made to effect service on the AR for the assessee. The alleged refusal by the A.R. is also challenged. Learned counsel further states that the first appellate order itself indicates that no service through affixture was made which, even if the other facts are admitted as correct, was sine qua non for hearing and disposal of appeals on merits.

5. Learned D.R. on the other hand supports the orders of the authorities below for the reasons stated therein.

6. Having heard the parties, we are persuaded to agree with the legal objections made by the learned counsel. If the notices for hearing of appeals could not be served then the appellate authority ought to have got the service effected through affixture as provided in Order V, Rule-17 of Civil Procedure Code. Section 41 of Wealth Tax Act, 1963 enjoined upon the learned first appellant authority to get the service of appearance notices effected either by post or in the manner provided for service of summons issued by a Court under C.P.C. (V of 1908). The aforesaid rule 17 of Order V of the Code lays down the procedure for service when a defendant refuses to accept the process or cannot be found. According to the appellate order, the appellant was not found in spite of alleged best efforts of the Process Server. In this situation the service was required to be effected through affixture. This procedure, however, does not appear to have been adopted. Therefore, learned first appellate authority could not proceed to decide the matter ex parte. The absence of such an attempt on the part of the first appellate authority has resulted into a legal lacuna and, therefore, rendered the ex parte order as improper both in law as well as in fact. We have also noted that service by affixture was made by the assessing officer in original proceedings and the learned first appellate authority could very conveniently adopt the same procedure for service in appeal.

7. Therefore, as said above, a valuable right of service in accordance with law has been denied to the assessee. The proceedings conducted after the alleged "best efforts" of the Process Server are set at naught. The impugned order is set aside and the case is remanded to the first appellate authority to decide the appeals on merits after hearing the appellant who shall be entitled to a notice of hearing in accordance with the aforesaid provision of the Code.

8. Before parting we would like to recall that in recent case decided on 22-11-1996 in W.T.As. Nos.282 to 287/LB/96, WTA No.102/93 and W.T.As. Nos.106 to 111/LB/93 we have ruled upon the exigibility of Wealth Tax on the properties held by the Cooperative Housing Societies. Learned first appellate authority may like to benefit from that order while deciding the appeals on remand.

9. Case remanded.

C.M.S./413/Trib. ??????????????????????????????????????????????????????????????????? Case remanded.