1. HAMOODUR RAHMAN, C. J.-This is a petition for special leave to appeal from an order of a Division Bench of the Peshawar High Court in a petition under Article 98 of the Constitution of 1962 which was filed to call in question an order of the Income-tax Officer, Hazara Circle, Abbottabad, dated the 29th of June 1965, by which the petitioner was called upon to deposit Rs. 24,156 as the income- tax due from him for the year 1960-61.
2. The ground upon which the order was sought to be challenged was that the Income-tax Officer had proceeded to make an ex parte assessment against the petitioner on the basis of a substituted service, which was illegal and without jurisdiction. Hence the assessment was also without jurisdiction.
3. The petitioner, it appears, had appointed in writing the learned counsel now appearing on his behalf to act as his authorised representative in the income-tax proceedings and empowered him as such representative to receive, amongst others, notices on his behalf and to do all acts that may be necessary for conducting the proceedings. The learned counsel accepted this authority by affixing his signature at the foot of this written authority and regularly appeared before the Income tax Officer on behalf of the petitioner. On one such occasion, namely, the 28th of August 1963, he filed an application praying that the statutory notices may be served on the assesses personally as he was unable to contact the assessee in his village Baghpur Dehri due to lack of means of communication. In the alternative, he also prayed that in case the service already effected on him was to be treated as good service, then an adjournment tray be gr4n~ed to enable him to contact th9 assesses.
4. On this application, the Income-tax Officer adjourned the case to the 20th of September 1963, on the basis of the alternative prayer but, on the adjourned date, neither the authorised representative nor the assessee appeared before him.
5. The Income-tax Officer could have, on that very day, proceeded to make the assessment ex parte, as the learned counsel now very frankly concedes; but instead of doing so, the Income-tax Officer directed fresh notices to issue by ordinary post. This was done, but again no one appeared. The Income-tax Officer then directed issuance of notice by registered post/acknowledgment due asking the petitioner to appear on the 12th of April 1965. Again no appearance was entered.
6. The Income-tax Officer then caused a notice to be served on the authorised representative on the 10th of May 1965. He, however, returned the notice with the endorsement that the petitioner had gone for Haj and was not likely to return till the end of June or the beginning of July.
7. The Income-tax Officer could even at this stage have proceeded ex parts, but again he did not do so. He treated the endorsement of the authorised representative as a refusal to accept service and directed that substituted service be effected on the authorised representative.
8. The bailiff did so in the presence of two witnesses and reported that he had personally affixed the notice at a conspicuous place in the office of the authorised representative, in the District Courts at Abbottabad.
9. It is only when no one appeared even in response to this notice that the Income-tax Officer decided to proceed ex parte and passed the impugned order.
10. The learned counsel contended before the High Court that the substituted service was bad, as it had been made without complying with the provisions of section 63 of the income-tax Act and rule 17 of Order V of the Code of Civil Procedure. The precise contention was that, since there was no refusal on the part of the assessee or the authorised representative to accept service the condition precedent for the substituted service was not present. It was, therefore, without jurisdiction.
11. The High Court repelled this contention holding that the return of the notice served on the authorised representative on the 10th of May 1965, with the endorsement that the petitioner had gone to Mecca for Haj, amounted to a refusal to accept service and, therefore, the substituted service was fully justified.
12. The learned counsel, who was the authorised representative of the assessee and is now appearing in support of this petition, has reiterated this contention before us, but we are in entire agreement with the High Court. As already pointed out, the return of the notice amounted to a refusal to accept the same and, the provisions of rule 17 of Order V of the Code of Civil Procedure became attracted. The Income-tax Officer was, therefore, fully justified in directing substituted service.
13. Learned counsel next sought to contend that even if the substituted service was justified, the Income-tax Officer had acted improperly by not following thereafter the procedure prescribed by rule 19 of Order V of the Civil Procedure Code.
14. He, it is said, should have asked the bailiff either to file an affidavit in support of his return of service or examined him orally. Since he did not do so, he acquired no jurisdiction to make the ex parte assessm ent.
15. This point was not taken in the writ petition filed in the High Court, nor has it been taken in the petition for special, leave to appeal. There is no reference to it in the judgment of the High Court, nor is there any material on record from which the correctness of the allegations now being made can be verified. The certified copy of the Return has not been filed. We are not, therefore, in a position to say as to whether the statement of the bailiff, which has been quoted in the judgment of the High Court, was on oath or not. It usually is on oath and, therefore, we have to presume that official acts were regularly performed until the contrary is proved. This has not been done.
16. It is obvious that the petitioner is now seeking to take undue advantage of the indulgence shown to him by the Income tax Officer.
17. We are further of the view that the petition in the High Court under Article 98 of the Constitution of 1962, was, in any event, bound to fail, for, in the facts mentioned, it could not be said that the assessm ent was made without jurisdiction.
18. At worst it was only irregular. The decision hi the case of Myitkyina Trading Depot v. Deputy Tehsildar, Paramakudi (32 1 T R 393) has no application in the facts of this case. There is no allegation here that the demand notices issued after assessment were not served properly. The proper remedy of the assessee, in the circumstances, was to go in appeal against the order of the Income-tax Officer in accordance with the provisions of the Income-tax Act.
19. It is now well settled that where a special law or a special right is created by statute which also prescribes a special remedy for the enforcement of that right or liability, then it Is that remedy which must be adopted and not any other remedy. The special jurisdiction under Article 98 of the Constitution of 1962 could not be treated as a substitute for an appeal or revision. It was only an extraordinary remedy available in extraordinary circumstances where the order sought to be challenged was wholly without jurisdiction. This was not the case here.
20. This petition is accordingly dismissed.