JUDGMENT (Per V. S. Kotwal, J.) A question that is being legitimately posed in this proceeding is as to whether levying of execution in pursuance of warrant issued by the Income Tax Department can be styled as 'default' if the petitioner could not be properly declared as the defaulter under the relevant provisions of the Income Tax Act, and if the answer is in the negative then it is bound to affect the entire proceeding that is flowing out of this wholly un-sustainable foundation. This is precisely what has happened in this case. Only a few dates and events would high light the nature of controversy. The petitioner is an Income Tax Assessee. He was assessed for the year 1973-74. At that time one of his main contentions that a certain amount which represents bad debt should be excluded from the items of income was not accepted. Accordingly assessment order was passed some time in 1978. The petitioner preferred a revision against that order. On revision the order of assessment was set aside by the revisional authority and the matter was remanded to the first authority to have a fresh assessment. This was perhaps essentially on account of the petitioner's contention of exclusion of certain amount of the ground that it is bad debt. Both the parties were unable to produce the copies of the assessment order and the order passed in revision. Even the Department could not produce the said order. Any way, that such an assessment order was passed, that it was set aside and that the matter was remanded by the Revisional Court is conceded on behalf of the Department. After the remand a fresh assessment was made and the order was passed some time in March 1978. The petitioner has all along consistently contended that neither the notice after remand regarding fresh assessment was served on him nor any notice of demand was equally served on him. However, to his utter surprise on 31st of March, 1981 he received a notice from respondent No. 2 purporting to be one under section 222 of the Income Tax Act ('the Act') which was obviously on the basis that the petitioner was deemed to be a defaulter in as much as he did not pay the taxes as assessed in spite of the receipt of the notice and within the stipulated period as prescribed in that notice. The receipt of the notice and consequently any such prescription has been stoutly denied by the petitioner. It is then alleged that on 3rd of September, 1981 since the demand was not complied with the second respondent issued a warrant of attachment qua the moveable and immoveable properties of the petitioner. In so far as his moveables are concerned the attachment is levied in the year 1981 itself whereas in respect of immoveables the warrant was executed on 27th of March, 1982. After issuance of warrant of attachment on 3rd of September, 1981 the petitioner claims that he personally met the second respondent and requested for instalment of Rs. 500/- per month and this meeting according to him was held on 23rd of December, 1981. By that time penalty was already sought to be levied against the petitioner for filing the return late and therefore on 21st of January, 1982 the petitioner moved the Commissioner for waiver of penalty. It appears that an appeal was filed against the said order of penalty which according to Smt. Singh is still pending. However it is not seriously controverted that it relates to different chapter when the penalty was sought to be levied for filing the return of income late. It is further claimed by the petitioner that he was assured orally that his representation for granting instalments would be considered sympathetically provided he paid certain amount in lump-sum. Accordingly he claims to have paid Rs. 15,000/- on 5th of January, 1982. Similar request was made for instalments by the petitioner to the first respondent and the Assistant Commissioner on 22nd of January, 1982. The petitioner further claims that he was called by the first respondent on 12th of February, 1982 by intimation dated 30th of January, 1982. The petitioner could not adhere to the scheduled time because of the illness of his mother and requested to drop the penalty. On 30th March, 1982 the petitioner specifically complained to the Assistant Commissioner regarding the non-service of the notice of demand. Similar grievance was made to the first respondent. It is on 13th April, 1982 that the petitioner was informed by the second respondent that notice of demand was sent to the petitioner and that it was in fact received by him and the acknowledgement is with the Department. Similar grievance was made to the first respondent. It is on 13th April, 1982 that the petitioner was informed by the second respondent that notice of demand was sent to the petitioner and that it was in fact received by him and the acknowledgement is with the Department. Similar grievance was made by the petitioner regarding non-receipt on 16th of April, 1982 to various concerned authorities. Again on 21st of April, 1982 the second respondent informed the petitioner that the notice was served on him and the acknowledgment is on record and which acknowledgment according to the authority did not bear any date. This would assume some importance. A similar reply was given to the petitioner by the Assistant Commissioner on 23rd of April, 1982. The petitioner reiterated his grievance once again on 12th of May, 1982 of non-service and non-receipt. It is ultimately that he was obliged to file this petition under Article 226 of the Constitution of India challenging the validity of the execution proceeding. Shri Ashok Boghani, the learned counsel for the petitioner, mainly raised two points though in addition he tried to supplement his argument by some other aspects. The first is that when the matter was remanded by the Appellate Authority for fresh assessment no hearing was given to the petitioner and the order of assessment was passed behind the petitioner's back. The second which is not only equally relevant but more formidable is that the petitioner has never received either the assessment order or the notice of demand and if that be so then a question has been rightly posed by Shri Boghani, the learned counsel, as to how the petitioner could get the label of being defaulter and if the does not become a defaulter then obviously the proceeding levying the execution would be bad in law. Smt. Manjula Singh, the learned counsel for the respondent - Department, while countering these contentions submitted that on the first count it was not necessary for the Income Tax Officer to hear the petitioner after remand. Smt. Manjula Singh, the learned counsel for the respondent - Department, while countering these contentions submitted that on the first count it was not necessary for the Income Tax Officer to hear the petitioner after remand. On the second count she maintains that the petitioner was served with the notice and for that purpose she relied on two circumstances, the first is that in the communication made by the authorities to the petitioner on two occasions it is specifically mentioned in writing that the notice was served on the petitioner who acknowledged its service and the acknowledgement is on record. She further submitted that there are two acknowledgment receipts on record which would establish the service of notice of demand. She also endeavoured to submit that an appeal was filed by the petitioners against those orders and he has also not resorted to the remedy available under the Act and further this defence of non-service of the notice has been taken at a belated stage. I have already indicated the chronological order of events that occurred in this proceeding most of which would have the necessary impact. Reiterating all those events is not necessary. However, some features out of these events prominently come on the surface. The first is that initially assessment was made in the year 1978 for the assessment year 1973-74. The petitioner had made a grievance therein that a certain amount be excluded from his so-called income because it was a bad debt since the said amount was due from one Garment Company which had gone in insolvency. The first authority did not accept this contention and passed the assessment order. Revision was filed against that order and it is now conceded that the revision was allowed and the order of assessment was set aside and the matter was remanded to the first authority to have a fresh assessment. It is thereafter that a fresh assessment was made by the said authority and the order was passed completing the assessment on or about 7th of February, 1980. In so far as this aspect is concerned, the petitioner has positively observed in the petition that he was never heard when fresh assessment was made after remand and this order was passed behind his back. In so far as this aspect is concerned, the petitioner has positively observed in the petition that he was never heard when fresh assessment was made after remand and this order was passed behind his back. It is very relevant to note that this statement has gone un-challenged or un-controverted and what is surprising is that no return has been filed on behalf of the respondents at all and there is no explanation for that default. Consequently there is no reason as to why this assertion of the petitioner as reflected in the petition Should not be accepted. Significantly even on this forum nothing could be pointed out on behalf of the Department to negative the petitioner's claim that he was not heard. This, therefore, is an additional factor. Obviously, therefore, when the first assessment was set aside and the matter was remanded for fresh assessment it was expected that the petitioner would be given an opportunity to be heard and yet the assessment was made afresh almost as a routine course without hearing the petitioner. Obviously on this count itself the petition must succeed. As stated at the threshold the second ground is not only equally relevant but is more formidable. The petitioner has all along and quite consistently reiterated his grievance that he was never served either with the assessment order much less with the notice of demand and to his utter surprise for the first time on 31st of March, 1981 he received a notice purported to be one under section 222 of the Act on the basis that the petitioner was a defaulter. The further dates are not relevant for this issue because those relate to post events namely about levying execution after issuance of warrant of attachment. It is, therefore, necessary to consider and assess the validity of the foundation and for that purpose the answer to the question as to whether the petitioner was served with the demand notice would govern the fate of the second point. On the factual structure Smt. Singh, the learned counsel for the respondents, submits that in correspondence and at least through the two letters the officer informed the petitioner that he was served with the notice of demand and the acknowledgement bearing the signature is on record. In addition Smt. Singh endeavoured to rely on two acknowledgements which she has brought from the file of the Department. In addition Smt. Singh endeavoured to rely on two acknowledgements which she has brought from the file of the Department. There are obviously un-surmountable difficulties in accepting the submission made by Smt. Singh. The petitioner as indicated has consistently reiterated that he has not been served nor he signed any acknowledgement as such. Now the two letters dated 13th of April, 1982 and 12th of May, 1982 sent by the authorities to the petitioner no doubt refer to their case of having issued demand notice and the petitioner having received it. There in it is mentioned that the Department has in its possession an acknowledgement bearing certain signature though that acknowledgement does not bear any date. This position has been not only clarified but reaffirmed in the second letter of May 1982. Smt. Singh, the learned counsel, relied on two acknowledgements which are in possession of the Department. Those are formally not produced along with the affidavit and really speaking the Department would not have been permitted even to refer to these documents. However, to ensure that there is no mis-carriage of justice, the said two acknowledgements are seen. One acknowledgement does not bear the date while the other acknowledgement bears the date as 3rd of April, 1982. Now both these acknowledgements cannot be tagged with the notice in question for more than one reason. The first is that the Department made it very clear that they have received an acknowledgement which does not bear the date and thereby they excluded the other acknowledgement which bears some date. Now the difficulty for the Department is that the acknowledgement which does no bear the date and which Smt. Singh, the learned counsel, suggests being the relevant acknowledgement is purported to have been signed by one Jayesh R. Naik. It would therefore be necessary for the Department to establish that the service on such a person by name Shri Naik can be treated as good service on the petitioner. Significantly no endeavour is made in that behalf. However, it is not even inferentially suggested that the said Shri Naik is either the member of the undivided Hindu family of the petitioner or is accredited agent of the petitioner or is a person who looks after the business or is a person who has been authorised by the petitioner to accept any such document. However, it is not even inferentially suggested that the said Shri Naik is either the member of the undivided Hindu family of the petitioner or is accredited agent of the petitioner or is a person who looks after the business or is a person who has been authorised by the petitioner to accept any such document. The petitioner, who obviously had no knowledge of this acknowledgement because no inspection was given in spite of the Advocate's letter, who submits that he does not know any such person by name Shri Naik and at any rate this is not the acknowledgement on his behalf. The other difficulty is that even this acknowledgement pertains to the year 1979-80 and therefore it could not be tagged with the assessment year 1973-74. As regards the other acknowledgement no doubt it purports to have been signed having the same initials and name as that of the petitioner. But the petitioner now after seeing that acknowledgement categorically denies that it is signed by him. As stated this is not the acknowledgement on which reliance is placed by the authorities because through their letters they made it, specific that the acknowledgement concerning the petitioner does not bear the date. One which does not bear the date does not bear the signature of the petitioner. One which bears the date though purported to have been signed by the petitioner which has been denied by the petitioner was not relied upon by the authorities as being the relevant acknowledgement. Furthermore the slip also indicates that this acknowledgement could be for the year 1980-81 and therefore could not be tagged with the assessment for the year 1973-74. The endorsements on the documents including the slips issued by the Department itself satisfactorily show that the said two acknowledgements which are denied by the petitioner were not for the assessment year in question and if that be so then even these acknowledgements do not improve the case of the Department, pointing to the conclusion that there is in fact no acknowledgement on record of the Department qua the assessment order in question. This position could not be seriously controverted on behalf of the Department nor any other document or receipt is forthcoming. Looked at from any angle, therefore, neither of these acknowledgements can go to the rescue of the respondents in so far as this issue is concerned. This position could not be seriously controverted on behalf of the Department nor any other document or receipt is forthcoming. Looked at from any angle, therefore, neither of these acknowledgements can go to the rescue of the respondents in so far as this issue is concerned. No other material is placed on behalf of the respondents even on this forum and even at this stage to substantiate that the notice was issued and it was served on the petitioner and he has acknowledged the same. No other acknowledgement than these documents has also been tendered. The matter does not rest there because there is still a very strong hurdle in the way of the respondents in as much as admittedly no return has been filed on behalf of the Department though the petition was filed as long back as in 1982. The record reveals that initially the petition was rejected on the ground of delay by the learned Single Judge. However, on appeal that order was set aside and the petition was admitted. Even thereafter also no attempt has been made on behalf of the Department to file the affidavit in reply. That is not filed even now. Consequently all the recitals in the petition have gone un-controverted. This must have some impact which is an additional factor apart from the glaring deficiencies as reflected through the record. A short resume of the scheme of the Act in that field not be not be out of place. When the assessment is made and the order is passed. The section 156 stipulates the notice of demand to be issued when it prescribes that when any tax is payable in consequence of any order passed under this Act, the Officer shall serve upon the assessee a notice of demand in the prescribed form specifying the sum so payable. Therefore the first stage is to make the assessment. Once the assessment is made and order is passed then the demand is to be made by a specific notice under section 156. The mode of service of this notice is contemplated by the provisions contained in section 282 of the Act. It prescribes that the notice or the requisition under this Act is to be served on the person named in that notice either by post or as if it was a summons issued by the Court under the Code of Civil Procedure. It prescribes that the notice or the requisition under this Act is to be served on the person named in that notice either by post or as if it was a summons issued by the Court under the Code of Civil Procedure. Sub-clause (1) carves out different categories in respect of a firm or a Hindu undivided family, a company, any other association or any other person and prescribes the mode of service of notice and the person on whom the service is to be effected. As regard the petitioner is concerned the notice ought to have been served on him personally. It is to be transmitted by post or as provided by the provisions of the Code of Civil Procedure. The provisions of Order V of the Code of Civil Procedure therefore would become applicable by reason of this prescription. The various rules under the said Order and especially rules 12 to 15 suggest the further mechanics of such a service. Thus it is to be served on the person who is sought to be served or an agent empowered to accept the service or it can be served on the manager who is personally carrying on the business on behalf of the assessee and it can also be effected on an adult member of the family under the conditions mentioned in rule 15. As indicated at the outset the petitioner's consistent version that no notice of demand was served on him could not be seriously controverted on behalf of the respondents because of the several deficiencies as discussed herein above. No material has been placed even now to substantiate the claim of acknowledgement. No nexus could be shown even inferentially between the person who signs as Shri Jayesh Naik either being as the agent or the member of the family or the manager incharge of the business, etc. as contemplated by the Code of Civil Procedure. It could not also be said that the notice was properly sent through post and was properly accepted by the assessee. It that be so then the further provisions of the Act become relevant. The scheme of the Act then contemplates that after the assessment order is made the notice of demand is to be issued. That notice has to mention the amount payable and also the period for which the amount is to be paid. It that be so then the further provisions of the Act become relevant. The scheme of the Act then contemplates that after the assessment order is made the notice of demand is to be issued. That notice has to mention the amount payable and also the period for which the amount is to be paid. The consequence of not complying with that demand would entail into the assessee the being deemed as defaulter because by such lapse he commits the default. Section 220 of the Act relates to collection and recovery of tax and it is under the head as to "When tax payable and when assessee deemed in default". It prescribes that any amounts as specified in the notice of demand under section 156 shall be paid within 35 days of the service of the notice at the place and to the person mentioned in the notice though under the proviso there is a flexibility when the concerned officer for proper reasons can extend the said period of 35 days. Sub-clause (4) of section 220 further specifically categorises the case of the defaulter by prescribing that if the amount is not paid within the time limited under sub-section (1) or the extended period under sub-section (3) at the place and to the person mentioned then the assessee shall be deemed to be in default. Section 222 relates to the Certificate to the Tax Recovery Officer and prescribes that when an assessee is in default or is deemed to be in default in making a payment of tax, the Tax Recovery Officer may draw up under his signature a statement in the prescribed form specifying the amount of arrears due from the assessee and the said Officer thereafter shall proceed to recover from such assessee the amount specified therein by one or more of the modes mentioned in that proviso which include the attachment and sale of the assessee's property, moveable as well as immoveable, as per the rules mentioned in second schedule. Once an action under this provision is taken then the attachment is to follow for the recovery of the said dues. The scheme of these provisions therefore manifestly indicates that certain mandatory provisions must be observed. In the phraseology the assessment order comes at the first, whereafter the notice of demand is to be issued under section 156 of the Act prescribing the amount. The scheme of these provisions therefore manifestly indicates that certain mandatory provisions must be observed. In the phraseology the assessment order comes at the first, whereafter the notice of demand is to be issued under section 156 of the Act prescribing the amount. The mode of service is clearly mentioned under section 282, if in spite of service of this notice the demand is not complied with then the assessee becomes a defaulter on account of his committing default in making the payment in prescribed period of 35 days or the extended period as the case may be. Once the default is complete the assessee becomes a defaulter and once the assessee becomes the defaulter then the execution is to follow when the recovery certificate is to be issued under section 222 and then the execution is to be levied by the Tax Recovery Officer. It would thus follow as a logical corollary that the pre-requisite condition for the legal and valid action for issuing certificate of recovery and further action of attachment of property through the warrant of attachment must spring out of the foundation namely the notice of demand and its non compliance within the prescribed period because it is only then that the assessee becomes a defaulter and it is only then that the further action can be taken. This would, therefore, follow that for the purpose of compliance of the demand and to treat the assessee as the defaulter it must basically be established that the notice of demand as issued under section 156 of the Act has been in fact duly served on the assessee through the modes as contemplated under section 282 of the Act. The converse is clear that if such a notice is not served on the petitioner then the further action of treating him as a defaulter would fail and if that fails then the further action of levying the execution on issuance of certificate must also fail because that can be attached only to a defaulter and the assess can be made defaulter only if he does not comply with the demand in the notice and this can be done only if the assessee is properly served with the notice of demand because the compliance of the demand in the notice would come into effect only if the service of the notice is effected. That is how the circuit becomes complete. On the facts of the instant case as discussed in details the petitioner's claim that he was not served with the notice of demand cannot be negatived especially when no data is placed by the Department even at this stage to counter that claim and significantly that statement is really speaking un-challenged or un-controverted. Consequently it will have to be held on the material as it stands that no notice of demand under section 156 was served on the petitioner as contemplated by the Act and consequently the entire further action of issuance of certificate, issuance of warrant of attachment and actual levying of attachment of moveables and immoveables must correspondingly fail. This is because the further action has its existence only on the basis of the first aspect and therefore if the first aspect itself is non-existent then it must affect adversely the second aspect. Reliance is rightly placed by the learned counsel for the petitioner on the decision of the Allahabad High Court in Additional Commissioner of Income-Tax, Lucknow v. Prem Kumar Rastogi (1980) Vol. 124 Income Tax Reports, 381 where a question arose as to whether there was proper service effected on the assessee about the notice of demand under section 156. The said Court has anxiously considered the scheme of the Act and all these relevant provisions and also in the context of the provisions contained in Order V. Rules 12 to 15 of the Civil Procedure Code. It transpired in the said case as argued on behalf of the Department that the person who signed the acknowledgement has been signing such acknowledgement even in the past and therefore the argument was advanced that such person can be deemed to be either to be accredited agent or a person authorised in that behalf. This argument was repelled by the learned Judges holding that despite such a feature that fact by itself would not make the said person as an authorised or recognised agent or member of the Hindu Undivided Family. With respect I am in agreement with the observations and the ratio in that decision. This argument was repelled by the learned Judges holding that despite such a feature that fact by itself would not make the said person as an authorised or recognised agent or member of the Hindu Undivided Family. With respect I am in agreement with the observations and the ratio in that decision. Rather a faint attempt was made by Smt. Singh, the learned counsel for the respondents, to submit relying on the provisions of section 224 of the Act that it would not be open to the assessee to dispute the correctness of any certificate drawn up by the Tax Recovery Officer on any ground whatsoever and as such as the Tax Recovery Officer cannot go behind the certificate and similarly the recovery proceeding in pursuance of that certificate cannot be affected. The construction sought to be placed on this provision is not in tune with the object behind that enactment. That would cover under its fold certainly not the contingency which exists in this case inasmuch as when the recovery certificate could not be issued in law then on the principle of non-est the recovery proceeding also could not be taken and this cannot be equated to challenge to the correctness of the certificate, because the challenge is to the very jurisdiction of issuing the certificate the correctness or otherwise thereto would be secondary. The said contention also, therefore, would fail. In the face of these findings it is not necessary to consider any other facets of the controversy. The net result, therefore, is that the petitioner would succeed on both counts namely that he was not heard when a fresh assessment was made after remand and second, there was no service of notice of demand effected on the petitioner and therefore the further execution proceeding based on that would have no existence or validity in law. It would also follow that in view of the finding on one count the fresh assessment order recorded after remand also will have to be set aside along with the notice of demand and the execution proceeding and that is precisely what is claimed in prayer clause (a). The entire relief, therefore, as reflected in that clause will have to be granted. This however would not further preclude the Department to have a fresh assessment and fresh proceeding in accordance with law if of course permissible under the Act. The entire relief, therefore, as reflected in that clause will have to be granted. This however would not further preclude the Department to have a fresh assessment and fresh proceeding in accordance with law if of course permissible under the Act. Rule made absolute in terms of prayer clause (a). There would, however, be no order as to costs.