Sicpa India Ltd. vs Commissioner of Income Tax

The appeal was admitted on 27th February, 2007. There is, however, nothing to show that the notice of appeal was ever served. Naturally, no one appeared on behalf of the respondent.

On 6th June, 2014, the matter was in the list. The learned advocate appearing for the appellant was unable to tell us whether notice of appeal has been served. In the circumstances, the registry was directed to furnish a report as to whether the notice of appeal was served. The registry by its report dated 24th June, 2014 informed this Court that no notice had been taken out by the appellant from the section for service upon the respondent. There was as such a clear violation of Chapter XXXI Rule 8 of the Original Side Rules of this Court which provides as follows:

"8. Notice of Appeal. Within one week from the date of admission of an appeal, or within such extended time as may be allowed by the Registrar, the appellant shall take out and deliver to the Sheriff a Notice of Appeal for service on the respondent; in default, the appeal may be set down before the Appellate Court for disposal:

Provided also that in cases where the appellant''s advocate acting on the Original Side has received a letter from the defendant''s advocate acting on the Original Side expressing readiness to accept service, the appellant''s advocate acting on the Original Side or some person employed by him may serve the notice of appeal upon the respondent''s advocate acting on the Original Side. "

Since notice of appeal was not served, the appeal became liable for disposal.

On 29th January, 2015, the matter was again in the list. Rather than disposing of the appeal we were inclined to give another opportunity and as a matter of fact, granted an opportunity to the appellant to serve and to file affidavit of service. In spite thereof, the appellant did not wake up.

On 26th February, 2015, again the matter was in the list and the matter was adjourned on the prayer of the learned advocate for the appellant for four weeks. Thereafter, the matter was listed yesterday when a brief adjournment was granted and the matter is on the day''s list under the heading "For Dismissal".

Mr. Das, learned advocate appearing for the appellant has filed an affidavit of service affirmed on 3rd March, 2015 from which it does not appear that the notice of appeal was served. He has filed yet another affidavit of service affirmed on 31st January, 2015 which also does not go to show that the notice of appeal as required by the Rules was ever served. The appellant did not also take steps to serve notice of appeal in spite of repeated opportunities granted by the Court.

It is an appeal under section 260A of the Income Tax Act, 1961. Sub-section (7) of Section 260A reads as follows:--

"(7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section."

The relevant provisions as regards service of notice of appeal are to be found in Order 41 Rule 14. Sub-section 1 of Rule 14 provides for service of notice in the same manner as a summon is required to be served on the defendant.

Rule 1 of Order 5 provides for issuance of summons, Rule 10 provides for mode of service of the summons. Rule 1 of Order 9 provides for appearance of the parties on the day fixed in summons for the defendant to appear. Rule 2 provides for dismissal of suit where summons were not served in consequence of plaintiff''s failure to pay costs. Order 9 Rule 2 is reproduced below:--

"Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by rule 9 of Order VII, the Court may make an order that the suit be dismissed:

Provided that no such order shall be made, if notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer. "

Rule 5 provides for dismissal of suit where plaintiff, after summons returned unserved, fails for [seven days] to apply for fresh summons. To be precise Rule 5 of Order IX provides as follows:--

"(1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of [seven days] from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons, the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that--

(a) he has failed using his best endeavours to discover the residence of the defendant, who has not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time,

in which case the Court may extend the time for making such application for such period as it thinks fit.]

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit."

It would appear that both under the Original Side Rules of this Court and the provisions of the Code of Civil Procedure, failure to serve notice of appeal is a ground for dismissal of the appeal.

Under Sections 129 and 130 of the Code of Civil Procedure High Courts are empowered to make their own rules. This Court was established under the Letters Patent and is guided by Letters Patent of 1865. Clause 37 of the Letters Patent confers powers on this Court to make rules for proceeding in civil cases before it. To be precise Clause 37 reads as follows:--

"37. Regulation of Proceedings.--And we do further ordain, that it shall be lawful for the said High Court of Judicature at Fort William in Bengal from time to time to make rules and order for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty, Testamentary, Intestate, and Matrimonial jurisdictions respectively: Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure, being an Act passed by the Governor-General in Council, and being Act No. VIII of 1859, and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India."

Rules made by this Court are, therefore applicable which we have quoted above.

The omission to serve notice of appeal as required by rules quoted above coupled with failure on the part of the appellant to serve notice of appeal inspite opportunity granted after time prescribed by rules to serve had expired leaves no other option to the Court except to dismiss the appeal.

The appeal is, therefore, dismissed.