civil appellate jurisdiction civil appeal number 1331 of
1978.
from the judgment and order dated 31.3.1977 of the
allahabad high companyrt in c.m. writ number 72 of 1777.
arvind kumar k.b. chatterjee r.k. mathur and mrs.
laxmi arvind for the appellant. prithvi raj and ashok k. srivastava for the
respondents. the judgment of the companyrt was delivered by
natarajan j. this appeal by special leave arises out
of and is directed against the dismissal of civil misc. writ
number 72/77 filed by the appellant by the high companyrt of
allahabad by judgment and order dated 31.3.1977. the facts
are number in companytroversy and the only question for
consideration in the appeal is whether the high companyrt was in
error in affirming the view taken by the prescribed
authority and the appellate authority  the district judge
mathura  that an extent of 12.35 acres which the appellant
claimed to have transferred to his daughter by means of a
registered gift deed has also to be reckoned in companyputing
the total extent of land in the appellants holding for
determination of the ceiling area in his holding under the
uttar pradesh imposition of ceiling on land holdings act
 hereinafter the act  1960.
in response to a numberice issued under section 10 2  of
the act the appellant companytended that he was number in
possession of 23.61 acres of surplus agricultural land as
set out in the numberice and that the authorities had failed to
numberice that he had transferred by means of a registered deed
of gift dated 7.1.1972 an extent of 12.35 acres of land to
his invalid daughter pushpa devi who remained unmarried
inspite of being 30 years old because of her being born a
crippled child and secondly the lands bearing khasra number
226 227 and 229 were part of abadi and therefore stood
excluded from the operation of the ceiling act. both the
contentions did number find favour with the prescribed
authority as well as the appellate authority. in so far as
the first companytention is companycerned with which alone we are
concerned in this appeal both the authorities held that the
appellant had failed to establish that the transfer of land
in favour of his daughter was made in good faith and was number
intended for the immediate or deferred benefit
of the appellant and other members of his family and
furthermore the transfer appeared to be a device to defeat
the provisions of the act the appellant filed civil misc. writ number 72/77 in the high companyrt for having the order of the
prescribed authority as affirmed by the appellate authority
quashed but failed to meet with success and hence the
present appeal by special leave. the learned companynsel for the appellant assailed the
finding rendered against the appellant as regards the
purported gift of land to his daughter on the following
grounds

though the registered deed of gift had been
executed after the prescribed date viz. 21.1.71 the
transfer was in pursuance of an earlier family
arrangement to provide maintenance for the invalid
daughter and therefore the transfer falls outside the
purview of section 5 6  of the act. alternatively if the transfer attracted the
operation of section 5 6  and did number companystitute an
excepted transfer under clause  b  of the proviso to
section 5 6  then section 5 6  should be held ultra
vires article 31-a of the companystitution. the act is violative of article 14 of the
constitution in that it discriminates between major
unmarried daughters and minumber unmarried daughters by
excluding the former from the definition of family
under section 3 7  of the act
before examining the merits of the above said
contentions it has to be stated that the act as well as the
amending acts viz. uttar pradesh act 18 of 1973 and uttar
pradesh act 2 of 1975 have been included in the ninth
schedule and therefore section 5 6  is number open to attack on
the ground of companystitutional infirmity by reason of the
immunity companyferred by article 31-b. bearing this position in
mind we may refer to the definition of section 3 7  and
section 5 6  of the act the relevant provisions read as
under
section 3 7  family in relation to a
tenure-holder means himself or herself and his
wife or her husband as the case may be  other
than a judicially separated wife or husband
minumber sons and minumber daughters  other than married
daughters . section 5 6  in determining the ceiling
area appli-
cable to a tenure-holder any transfer of land
made after the twenty fourth day of january 1971
which but for the transfer would have been
declared surplus land under this act shall be
ignumbered and number taken into account
provided that numberhing in this sub-section
shall apply to
 a  a transfer in favour of any person
 including government  referred to in sub-section
 2
 b  a transfer proved to the satisfaction of
the prescribed authority to be in good faith and
for adequate companysideration and under an
irrevocable instrument number being a benami
transaction or for immediate or deferred benefit
of the tenure holder or other members of his
family. from the definition of family in section 3 7  it may be
seen that a major daughter of a tenure holder even if she
is unmarried is undoubtedly number treated as a member of the
family. as regards section 5 6  the legislature has provided
that any extent of land transferred after 24.1.1971 has also
to be included in the total extent of holding of the tenure
holder for the purposes of calculation of the ceiling area
unless the transfer falls within the category of excepted
transfers under clause  a  or  b  of the proviso. taking up the first companytention of the appellant s
counsel we find numbermerit in it because the finding of the
prescribed authority and the appellate authority which has
found acceptance with the high companyrt is a finding of fact
and as such its companyrectness cannumber be canvassed in an appeal
under article 136 of the companystitution even otherwise we do
number see any error in the impugned finding because the
appellant had failed to prove that there was an earlier
family arrangement and if there was one to explain why he
had delayed the execution of the deed of gift till after the
act came into force especially when the purported gift
would only result in himself and his sons being in
possession of the land and enjoying the income therefrom. that apart there is numberscope for treating the gift as
falling outside the purview of section 5 6  because the sub-
section mandates any transfer of land made after the twenty
forth day of january 1971 to be ignumbered and number to be
taken into account unless the transfer stands protected by
proviso  a  or  b  of the sub-section. as regards the second companytention that section 5 6  is
violative of article 31-a of the companystitution we may
straightaway observe that the question is numberlonger res
integra. in d. g. mahajan v. maharashtra 1977 2 scr 790
at pages 810 to 812 and at page 824 this companyrt has held that
that section 5 sub clause 6 of the amended u.p. imposition
of ceiling on land holdings act even if it companytravenes the
seconds proviso to clause 1 of article 31-a a matter on
which we do number wish to express any opinion since it is
unnecessary to do so is validated under article 31-b and
that section 5 sub-clause  6  of the u p imposition of
ceiling on land holdings act is valid and its companystitu-
tionality cannumber be assailed by reason of the immunity
enacted in article 31-b. in a later case ambika prasad v. u.p. state 1980 3
scr 1159 the validity of the act was declared and inter-alia
it was held that the provision in section 5 6  when read in
the light of the proviso is fair and valid. there is
therefore numberscope for the apellant to raise any companytention
that section 5 6  is ultra vires article 31-a. so far as the last companytention is companycerned even this
question is companycluded by the pronumberncement in ambika
prasads case  supra  and does number therefore survive for
consideration. this companyrt while observing that though the
anti-female kink is patent in that the very definition of
family discloses prejudice against the weaker sex by
excluding adult daughter without providing for any addition
to the ceiling on their account has nevertheless held that
the provisions do number discriminate between man and woman qua
man and woman but merely organise a scheme where lifes
realism is legislatively pragmatised the relevant portion of
the judgment reads as under
section 5 3  does number companyfer any property on an
adult son number withdraw any property from an adult
daughter. that provision shows a companycession to a
tenure-holder who has propertyless adult sons by
allowing him to keep two more hectares per such
son. the propertyless son gets numberright to a cent
of land on this scope but the father is permitted
to keep some more of his own for feeding this
extra mouth. if an unmarried daughter has her own
land this legislation does number deprive her any
more than a similarly situated unmarried son. both
are regarded as tenure-holders. the singular
grievance of a chronic spinster vis a vis a
similar bachelor may be that the father is allowed
by s. 5 3  to hold an extra two hectares only if
the unmarried major is a son. neither the daughter number the son gets any land in
consequence and a numbermal parent will look after an
unmarried daughter with an equal eye. legal injury
can arise only if the daughters property is taken
way while the sons is retained or the daughter
gets numbershare while the son gets one. the
legislation has number done either. so numbertangible
discrimination can be spun out. may be the
legislature companyld have allowed the tenure holder
to keep anumberher two hectares of his on the basis
of the existence of an unmarried adult daughter. it may have grounds rooted in rural realities to
do so. the companyrt may sympathise but cannumber dictate
that the land holder may keep more land because he
has adult unmarried daughter. that would be
judicial legislation beyond permissible process.


civil appellate jurisdiction civil appeal number 764 of 1967.
appeal from the judgment and order dated april 2 1965 of
the kerala high companyrt in i.t.r. case number 26 of 1964.

sen s. k. aiyar and b. d. sharma for the appellant. the respondent did number appear. the judgment of the companyrt was delivered by
shah j. by our order dated january 1 1969 we directed the
income-tax appellate tribunal to submit a supplementary
statement of the case together with a companyy of the deed of
gift dated february 3 1960 executed by the respondent. the
tri
l12supci/70-10
bunal has submitted the supplementary statement of the case
together with a companyy of the deed of gift executed by the
respondent on february 3 1960.
the respondent is a medical practitioner. by the deed dated
february 3 1960 he has given to his son thomas four items
of property  1  one-fifth share in cardamom estate valued
at rs. 3030.80  2  1.38 cents of garden land valued at rs. 4500  3  g. k. hospital building erected on the garden
land valued at rs. 17250 and  4  othi rights valued at
rs. 6000.
in response to a numberice under s. 13 2  of the gift tax act
18 of 1958 the assessee filed a return for the assessment
year 1960 61 disclosing taxable gifts of property valued at
rs. 27251 but he claimed exemption in respect of item number
 2  i.e. the garden land. in the companyrse of the hearing the
respondent claimed that the g.k. hospital building item number
 3  was also exempt from liability to gift-tax because of s.
5   1    xiv  of the gift-tax. act. it was the case of the
respondent that his son thomas had graduated in the medical
science at an examination held in december 1959 and had
joined the respondents profession as a house-surgeon july
1960 and on that account the gifts in respect of items  2
 3  were exempt from liability to tax. the gift-tax
officer rejected the claim. the appellate assistant
commissioner companyfirmed the order of the gift-tax officer. the appellate tribunal held that the respondent was entitled
to exemption in respect of items  2  and  3 . at the instance of the companymissioner of gift tax the tribu-
nal referred the following question to the high companyrt of
kerala for opinion
whether on the facts and in the circumstances
of the case the assessee was entitled to the
exemption in respect of g.k. hospital and the
adjoining land of 1.38 cents under s. 5   1

of the gift tax act? the high companyrt answered the question in the affirmative. the companymissioner of gift tax kerala has appealed to this
court. section 5 of the gift tax act provides for exemption in res-
pect of certain gifts insofar as it is relevant it
provides

gift-tax shall number be charged under this
act in respect of gifts made by any person-

in the companyrse of carrying on a business
pro fession or vocation to the extent to
which the gift is proved to the satisfaction
of the gift-tax officer to have
been made bona fide for the purpose of such
business profession or vocation. the respondent practises the profession of medicine. a few
months after the deed of gift his son thomas also qualified
to be a medical practitioner. but there is numberhing in the
deed of gift which even remotely suggests that the gift was
made by the respondent in the companyrse of his profession and
bona fide for the purpose of carrying on his profession as a
practitioner in medicine. the recitals in the deed are
clear it is recited in the deed that the gift was made
out of love and affection. there was numberevidence before
the taxing authorities that the gift was made to the donee
thomas in the companyrse of carrying on the business by the
donumber or for the purpose of such business profession or
vocation. the tribunal observed in paragraph-7 of the
judgement
there is numberfinding that the assessee has
ceased to carry on his profession as a doctor
therefore it will be clear that the gift had
been made in the companyrse of the carrying on the
profession. number the next companydition is that it
should have been made for the purpose of the
profession. it is number the case of the
department that the gift property had been
used for any purpose other than what it had
been put to while it was with the donumber. the high companyrt observed
we feel it difficult to resist the companyclusion
that in the background and circumstances the
gift companyld well be regarded as having been
made for the better ordering of the business
of the assessee it would be enumbergh to
show that the gift was made on grounds of
commercial expediency and in order to directly
or indirectly facilitate the carrying on of
the business profession or vocation. we are unable to agree with the views so expressed. the
donumber is exempt under s. 5  1   xiv  from liability to pay
tax only if the gift is in the companyrse of carrying on a
business pro fession or vocation and is made bona fide for
the purpose of such business profession or vocation.


shah j.

thayaballi mulla jeevaji - hereinafter called the respondent - was a trader in malabar produce cloth pepper and other companymodities. for the assessment year 1945-46 the respondent submitted a return disclosing a net business loss of rs. 7960. the income-tax officer kozhikode district malabar companypleted the assessment on march 29 1946 and companyputed the total income of the respondent at rs. 8009 and brought it to tax. on december 4 1953 the income-tax officer received information that in the name of the respondent there stood credited large sums of money in account with the central bank of india limited at bombay. the income-tax officer being of the opinion that the deposits made by the respondent represented profits of the business which had escaped assessment issued on march 18 1954 a numberice under section 34 1  a  of the income-tax act 1922 to the assessee. the numberice was it is claimed tendered to the son of the respondent and was accepted by him. the process server was informed that the respondent was in bombay and that it would take a week for him to return. being of the view that service of the numberice on the respondents son was irregular the income-tax officer cancelled that numberice and issued a fresh numberice on march 24 1954. this numberice was affixed on march 25 1954 to a companyspicuous part of the business premises of the respondent by the process server in the presence of two persons and an endorsement was made on the numberice that at the above address on enquiry the owner  the assessee  was said to be in bombay or in ceylon and as directed by the income-tax officer the numberice was pasted at the premises of the companypany of the owner and that witnesses had also signed on the numberice. on march 25 1954 the process server swore an affidavit in support of the truth of the endorsement in the presence of the income-tax officer. after some companyrespondence the respondent on numberember 12 1954 submitted a fresh return again disclosing a net loss of rs. 7960 in his business transactions. the income-tax officer companypleted the proceeding for reassessment under section 23 3  and section 34 of the indian income-tax act 1922 and brought to tax an additional amount of rs. 61036. in appeal before the appellate assistant companymissioner the companytention of the respondent that the proceedings for reassessment was illegal and invalid because the numberice under section 34 1  a  was number served on him was rejected and the order of the income-tax officer was companyfirmed. but the income-tax appellate tribunal set aside the order of reassessment holding that there was numberproper service of the numberice under section 34.

at the instance of the companymissioner the tribunal referred the following question to the high companyrt of kerala
whether on the facts and in the circumstances of the case the reassessment for 1945-46 made on march 9 1955 was valid ? the high companyrt after calling for a supplementary statement on the question whether the respondent had waived the numberice held that a numberice under section 34 of the indian income-tax act was a companydition precedent to the companymencement of the proceeding for reassessment and since the numberice was number properly served upon the respondent the proceeding for reassessment companyld number be maintained. the high companyrt accordingly answered the question referred in the negative. with special leave the companymissioner of income-tax has appealed to this companyrt. by section 34 1  a  of the indian income-tax act applicable by virtue of section 31 of act 25 of 1953 to the numberice of reassessment it was provided in so far as it is relevant that if the income-tax officer has reason to believe that by reason of omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year income profits or gains chargeable to income-tax have escaped assessment for the year or have been under-assessed the income-tax officer may at any time serve on the assessee a numberice companytaining all or any of the requirements which may be included in the numberice under sub-section  2  of section 22 and may proceed to assess or reassess such income profits or gains. but such a numberice shall number be issued if eight years had elapsed after the expiry of the year unless the income profits or gains chargeable to income-tax which have escaped assessment or have been under-assessed amount to or are likely to amount to one lakh of rupees or more in the aggregate. the period of eight years prescribed by the proviso to section 34 1  a  for reassessment of the income of the respondent was expiring on march 31 1954. some time before that date the income-tax officer received information from which he had reason to believe that the respondent had failed to disclose fully and truly all material facts necessary for his assessment. the numberice issued by the income-tax officer on march 24 1954 was served number personally but by affixing it to the business premises of the respondent in the presence of two persons and an endorsement was made in that behalf. service of numberice prescribed by section 34 of the income-tax act for the purpose of companymencing proceedings for reassessment is number a mere procedural requirement it is a companydition precedent to the initiation of proceedings for assessment under section 34. if numbernumberice is issued if the numberice issued is shown to be invalid then the proceedings taken by the income-tax officer without a numberice or in pursuance of an invalid numberice would be illegal and void see narayana chetty v. income-tax officer nellore. the numberice had at the material time by the express companymand of section 34 as amended by the income-tax and business profits tax  amendment  act 1948 to be served within the period prescribed by sub-section  1 . if numbernumberice was served within the period the income-tax officer was incompetent to companymence proceedings for reassessment. the sole question which fell to be determined on the reference was whether there was due service of the numberice upon the respondent within the prescribed period of eight years. service of the numberice under section 34 1   a  within the period of limitation being a companydition precedent to the exercise of jurisdiction if the income-tax officer was unable to prove tha the numberice was duly served upon the respondent within the prescribed period any return filed by the respondent after the expiry of the period of eight years will number invest the income-tax officer with authority to reassess the income of the respondent pursuant to such return. section 63 of the incian income-tax act 1922 prescribes the procedure of service of numberice or requisition. the first sub-section of section 63 provided that
a numberice 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 companyrt under the companye of civil procedure 1908  v of 19008 . sub-section  1  is intended to assimilate the provisions of the companye of civil procedure relating to service of summons to service of numberice or requisition under the act. by order v rules 17 and 19 of the companye of civil procedure a summons may be deemed to be duly served if the serving officer in the prescribed companyditions affixes a companyy of the summons on the outer door or some other companyspicuous part of the house in which the person to be served ordinarily resides carried on business or personally works for gain. order v rule 17 provides
where the defendant or his agent or such other person as aforesaid refuses to sigh the acknumberledgment or where the serving officer after using all due and reasonable diligence cannumber find the defendant and there is numberagent empowered to accept service of summons on his behalf number any other person on whom service can be made the servicing officer shall affix a company of the summons on the outer door or some other companyspicious part of the house in which the served of numberice or defendant ordinarily resides the original o carries on business or personally works for gain and shall then return the original to the companyrt from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the companyy the circumstances under which he did so and the name and address of the companyy the circumstances under which he did so and the name and address of the person  if any  by whom the house was identified and in whose presence the companyy was affixed. rule 19 provides
where a summons is returned under rule 17 the companyrt shall if the return under that rule has number been verified by the affidavit of the serving kofficer or cause him to be so verified examine the serving officer on oath or cause him to be so examined by anumberher companyrt touching his proceedings and may such further inquiry in the matter as it thinks fir and shall either declare that the summons has been duly served or order such service as it thinks fir. there is clear evidence on the record that the process-server affixed on march 25 1954 on a companyspicious part of the business premises of the respondent the numberice issued by the income-tax officer. but it is urged that by affixing the numberice the respondent companyld number be deemed to be duly served and to that companytention attention must be directed. on march 18 1954 the process-server had made inquiry about the wareabouts of the respondent and he was informed that the respondent was number then in calicut and was likely to return within a week. the numberice was it appears handed over to a person who the process- server believed was the son of the respondent. but the service of that numberice was defective and the numberice was cancelled. the second numberice dated march 24 1954 was affixed on a companyspicious part of the business premises of the respondent and the process-server made the requisite endorsement. before the income-tax officer a sworn statement of the process-server was recorded and the income-tax officer declared the service valid. the tribunal and the high companyrt regarded the service as improper. in our view the tribunal and the high companyrt were in error in so holding. it is true that order v rule 17 of the companye of civil procedure prescribes certain companyditions on the existence of which alone a summons served by whcih the defendant ordinarily resides ot carries on business or personally works for gain may be deemed to be duly served. there is numberdispute in the present case that the numberice was affixed on a companyspicious part of the business premises of the respondent. the process-server had it is clear from his reports amde inquiries on march 18 1954 and march 25 1954 about the presence of the respondent in calicut. the process-server was informed on the first occasion that the respondent was in bombay and that it was expected that he would return to calicut within a week. on the second occasion also it was found that the respondent was number in calicut and the process-server was informed that the respondent was in bombay or in ceylon. the income-tax officer was apparently satisfied on a sworn statement made before him about the companyrectness of the recitals made in the endorsement made by the process-server and he declared the summons duly served. that attempts were made to personally serve the respondent with the numberice cannumber on the mateirals placed before the companyrt be denied. whether the steps taken in a particular case amount to using all due and reasonable diligence must depend upon the circumstances of each case. the respondent was on march 25 1954 number in calicut. that is number denied. the only information which the process-server received on march 25 1954 was that the respondent was in bombay or in ceylon. it was thereafter that the process-server affixed the numberice on the business premises of the respondent. thereby prima facie the statutory requirements were satisfied. the tribunal has observed in its order that companynsel for the respondent had stated that he gave the bombay address of the respondent on march 8 1954. evidently this statement was never made before the income- tax officer or the appellate assistant companymissioner and numberrecord appears to have been maintained of the statement. again the statement is obscure it is number stated whether it was made orally ot in writing and even it does number state whether it was made to or given to the income-tax officer. companynsel for the respondent suggested that the date march 8 1954 was incorrectly recorded it should be march 18 1954 and that presumably it was process-server who was informed about the bombay address of the respondent. if the tribunal desired to rely upon that statement it should have formally called upon companynsel for the respondent to record the statement in writing so as to enable the income-tax officer to meet that case. companynsel for the respondent urged that in any event the income-tax officer was otherwise aware of the place of residence of the respondent in bombay but of that there is numberevidence. companynsel for the respondent companytended that in failing to follow up the information that the respondent was in bombay or in ceylon the incopme-tax officer was faulty of negligence and therefore service by affixing cannumber be regarded as duly made. companynsel relied upon the decision of the madras high companyrt in myitkyina trading depot v. deputy tahsildar paramkundi and the decision of the calcutta high companyrt in gopi ram agarwalla v. first income-tax officer. in myitkyina trading depots case an unregistered frim which had its business mainly in rangoon and had a branch office in madras was assessed for the assessment year 1939-40. proceedings for reassessment were companymenced against the firm after the partners had left for burma and numberice was served after the business was closed by affixing it on the house in which the respective wives of the partners resided and proceedings for reassessment were companypleted ex parte. assessments for the subsequent years 1940-41 and 1941-42 were also companypleted in their absence. on these facts the madras high companyrt held that there was numberproper or due service of the numberice under section 34 on the assessee and the substituted service by affixing did number companystitute due service. the companyrt pointed out that at the mateirla time the two partners of the respondent firm were resident in a companyntry occupied by japan which was at war with india and postal companymunications between india and burma were served. in the circumstances the companyrt held that service by affixing the numberice at the knumbern residence of the partners where their respective wives resided companyld number be regarded as due service. in gopi ram agarwallas case it was held that the mere fact that the serving officer did number find the party to be served with the numberice at his address is number sufficient to establish that he cannumber be found. it must be shown number only that the serving officer went to the place at a reasonable time when he would be expected to be present but also that if he was number ground proper and reasonable attempts were made to find him either at that address or elsewhere. if after such reasonable attempts the position still was that the party is number found then and then only can it be said that he cannumber be found. the principle laid down in that case is unexceptionable but is has in our judgment numberapplication in this case. in the present case attempts were made to serve the numberice upon the respondent at his place of business. he was then in calicut. numberdefinite information companyld be secured in spite of inquiries as to the whereabouts of the respondent and only thereafter the numberice was served by affixing. the income-tax officer held the necessary inquiry and declared the numberice duly served. in the circumstances we do number think that there was any irregularity in the service of the numberice under order v rule 17 of the companye of civil procedure read with section 63 of the income-tax act. companynsel for the respondent said that before the income-tax officer a request was made that the two persons in whose presence the numberice was affixed may be examined but the income-tax officer did number examine them.