JUDGMENT R.S. Garg, J. 1. This judgment shall finally decide MAIT No. 62 of 2005 (Bhagirath Rajput v. CIT), MAIT No. 29 of 2005 (Bhagirath Rajput v. CIT), (MAIT No. 63 of 2005 (Bhagirath Rajput v. CIT) and MAIT No. 64 of 2005 (Bhagirath Rajput v. CIT). 2. Learned counsel for the appellant after taking us through Section 282 of the Indian Income Tax Act and the provisions of Order V of the "CPC (unamended) specially Rule 12, Rule 15, Rule 17, Rule 19 and Rule 19A of Order V of the CPC, submitted that in the present matter service of notice issued under Section 148 or under Section 142(1) of the Income Tax Act was patently bad because one of the notices was served upon the erstwhile/ex-accountant of the appellant who was even otherwise not empowered as an agent to accept the notice and that the other notice was served upon minor son of the noticee/appellant. 3. It is submitted that the notice under Section 148 of the Act was issued on 20th Feb., 1997 and was served upon the Munim/accountant Harish Chandra on 24th Feb., 1997. The submission is that nobody ever verified from said Harish Chandra that whether he was an agent empowered to accept the service. It is submitted that notice under Section 142(1) of the Act was issued on 15-12-1998 and was served on the minor son on 19-12-1998. The submission is that nobody ever verified the age of minor son even when the appellant had filed his personal affidavit before the Commissioner (Appeals) and had also filed copy of school certificate where the son studied. The submission is that affidavit was also brought on record before the Tribunal but the Tribunal by passing a cryptic order simply observed that the birth certificate of the son was not from the high school or from the municipality. It is submitted that the appellant was not provided an opportunity and has been unnecessarily sacrificed. 4. Learned counsel for the revenue, however, submitted that on 10-8-1998 notice under Section 142(1) was issued and the same was refused by the appellant on 11-8-1998, therefore, the service was valid and assuming that notice issued on 15-12-1998 was not validly served then the service of earlier notice would fix liability on the appellant. 5. 4. Learned counsel for the revenue, however, submitted that on 10-8-1998 notice under Section 142(1) was issued and the same was refused by the appellant on 11-8-1998, therefore, the service was valid and assuming that notice issued on 15-12-1998 was not validly served then the service of earlier notice would fix liability on the appellant. 5. Section 282 prior to its amendment provided that a notice or requisition under the Act may be served, on the person therein named either by post or as if it was a summons issued by the court under the CPC. In the present matter notices were not issued by post but were sought to be served as summons issued by Court. For effecting service, Order V of CPC provides various modes. Rule 12 of Order V provides that wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. While making service upon any person who is not a member of the family of the noticee, it shall be the duty of the serving officer/process server to verify that such person is an agent empowered to accept the service. If such facts are not brought on record that the person on whom the service was effected, was an agent empowered to accept service then service of notice on such person cannot be deemed to be a valid service upon noticee. In the present matter unfortunately nothing has been brought on record to show that Harish Chandra was an agent empowered to accept the service. 6. Service can also be presumed to be valid in a case where the defendant refuses to accept the service. In the present matter unfortunately nothing has been brought on record to show that Harish Chandra was an agent empowered to accept the service. 6. Service can also be presumed to be valid in a case where the defendant refuses to accept the service. In such a situation Rule 17 would come into operation But, however, application of Rule 17 would always be subject to Rule 19 which clearly provides that where a summons is returned under Rule 17, the court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if ithas been so verified, examine the serving officer on oath, or cause himto be so examined by another Court, touching his proceedings and may make such further enquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such service as it thinks fit. 7. In the present matter, the earlier refusal on 11-8-1998 has not been shown to be verified either by process server nor it appears that the officer issuing the notice ever made any enquiry into the fact. We would be justified in presuming that after the alleged refusal was returned to the assessing officer, he must have ordered to issue fresh notice and, therefore, notice was again issued on 15-12-1998. The said notice, according to the department, was served upon the son of the noticee. When the defendant or a noticee is not found then the service can be effected on the adult member of the family and in such case the service so effected would be taken to be proper. Requirement of Rule 15 of Order V of CPC is that service may be made on any adult member of the family, whether male or female, who is residing with notice. In the present matter from the side of the Department/Revenue nothing has been brought on record to show, suggest or prove that the person upon whom service was effected was major. On the other hand, present appellant had filed before CIT(A) certificate from the school which clearly shows the date of birth of the son and clearly proved that the son was minor. On the other hand, present appellant had filed before CIT(A) certificate from the school which clearly shows the date of birth of the son and clearly proved that the son was minor. On one side there is positive evidence on the record and on the other there is presumptive evidence then the positive evidence is to be given precedence over the presumption. In the present matter unfortunately Commissioner (Appeals) and the Tribunal have simply rejected the arguments raised by the appellant holding that the service was effected. 8. Taking into consideration the totality of the circumstances, we are of the considered opinion that the notices were not properly served upon the appellant and he was denied all opportunities to defend his case. 9. Orders passed by the assessing officer, Commissioner (Appeals) and the Tribunal are hereby quashed. The appellant is hereby directed to appear before the assessing officer on 23-11-2009. The date of service of notice shall be the date on which the service was effected on the minor son because the appellant would not be entitled to take advantage of the delay in service at this stage. We would also be justified in observing that from the date of service of notice on the minor son upto the date of appearance before assessing officer the time spent shall be excluded from limitation. 10. The appellant, however, would be entitled to raise objection relating to validity of the notice and question of limitation apart from the afore-referred period. 11. All the petitions are allowed. There shall be no order as to costs.