TMI Blog1955 (8) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... he was not even in Calcutta and the delivery of the letter was taken by a brother of the assessee, named Chaganlal. It has been found that Chaganlal is separate from the assessee in mess and also lives separately and further that he is not concerned with the assessee's business, nor had he any authority to receive the notice on the assessee's behalf. It has further been found that at the relevant time he happened to be at the shop only casually. The assessee did not file any return in response to the notice and in due course the Income-tax Officer made a summary assessment under section 23(4) of the Act. Thereafter, the assessee made an application under section 27 for cancellation of the assessment on the ground that he had been prevented by sufficient cause from making a return in compliance with a notice under section 34. The sufficient cause was stated to be that the notice under section 34 had not been served on him. The Income-tax Officer rejected the application in the view that proper service of the notice had been effected. On appeal, the Appellate Assistant Commissioner affirmed that finding, but before him the assessee seems to have put his sufficient cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the circumstances of this case the Tribunal was justified in holding that service of the notice under section 34 of the Indian Income-tax Act by registered post, which had been received by Chaganlal, a brother of the assessee, at the place of the business of the assessee, was not sufficient service within the meaning of section 63 of the Indian Income-tax Act ? On the broad facts found by the Tribunal, namely, that the notice was served upon a separated brother of the assessee and not on the assessee himself, one should have thought that there could not be any good reason for the Commissioner of Income-tax to trouble about this particular case any further and try to obtain any opinion or advice from this Court. Mr. Meyer, however, pointed out that the basis upon which the Tribunal had proceeded required to be examined, because they had in effect held that if a notice sent by registered post, was served, not on the addressee but on someone else who had no authority to accept the notice on the assessee's behalf, that fact by itself would be sufficient to invalidate the service. Mr. Meyer submitted that if such were indeed the law, it might be extremely difficult to effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght come to know of the notice or its contents subsequently or otherwise and that he would be entitled to plead such illegality of the service as sufficient cause for not having made a return. That, it would now be clear, is the real question referred to this Court and an answer to it requires to be given. Before I take up the question on the merits, I would say a word in passing as regards the appellate order of the Tribunal. The whole of it appears to be based upon a misconception of both fact and law. As regards the law, the Tribunal says that under section 63 of the Indian Income-tax Act, notices have to be served as if it were summons issued by a Court under the Code of Civil Procedure (V of 1908). What the Tribunal quote is only one-half of the section, because the provision contained in the section is that a notice* * * may be served on the person therein named either by post or, as if it were a summons issued by a Court, under the Code of Civil Procedure, 1908. The observations of the Tribunal disclose no awareness of the first part of the section by which the present case really fell to be decided. Even as regards the second part, the Tribunal appear to have been un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since I am reading the relevant sections, I might as well read the two sections of the Evidence Act to which I referred. Illustration (b) of section 16 of the Evidence Act reads thus :- The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead Letter Office, are relevant. Illustration (f) of section 114 of the Evidence Act reads thus :- The Court may presume that the common course of business has been followed in particular cases. Reverting now to section 27 of the General Clauses Act, there can be no question that the Indian Income-tax Act is a Central Act and that it was enacted after the commencement of the General Clauses Act which is an Act of 1897. There can also be no question that section 63 of the Income-tax Act authorizes a notice under section 34 to be served by post. There is no dispute that the notice in the present case was sent by registered post, as section 63 permits, nor has it been said or found that it was not properly addressed or pre-paid. The preliminary conditions laid down in the section being thus all satisfied, the service of the notice must, unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee in Harihar Banerjee v. Ramsashi Roy LR 45 IA 222. The case before the Judicial Committee was concerned with the service of a notice to quit given under section 106 of the Transfer of Property Act. Three of the tenants were members of a joint Hindu family and one of them was duly and personally served with a duplicate copy of the notice. As regards the other two and indeed the other joint tenants, the registered letter containing the notice was not served on the addressee, but was served on another person who had no authority from the addressee to receive it. The question being whether the mere fact that the letter had been served on and received by a person who was not the addressee and who had no authority to receive it on the addressee's behalf, would establish that no legal or proper service could be claimed, their Lordships observed as follows :- ...it is an entire mistake to suppose that the addressee must sign the receipt for a registered letter himself, or that he cannot do so by the hand of another person, or that if another person does sign it on the addressee's behalf the presumption is that it never was delivered to the addressee himself mediately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the presumption had been thus rebutted by the proof of further facts. But the onus would be on the addressee. Mr. Sen Gupta contended that the real basis of the decision of the Judicial Committee was that three of the tenants were members of a joint family and he referred to the well settled principle that in the case of joint tenants, service of a notice to quit upon one of them is prima facie evidence that the notice had reached the other joint tenants. It does not, however, appear that the Judicial Committee proceeded on that principle and in fact there were other defendants in that case who were not members of the joint family like defendants 5, 6 and 7. There was, however, another fact to which the Judicial Committee did refer and it was that none of the other defendants had appeared as witnesses to deny that they had received the notices properly addressed to them and properly posted. I may recall that in a case decided by this Court, Gohinda Chandra Saha v. Dwaraka Nath Patita [1915] 19 CWN 489 , it was held that the presumption of due service would be rebutted when the addressee pledged his oath that the letter had never been tendered to him and he was believed. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would be a matter for enquiry under section 27 of the Act whether the assessee, on being informed of the service of a notice from the Income-tax department, was not required to take possession of the notice or to inform himself of its contents or make some attempt in that behalf before he could plead sufficient cause for not complying with the notice. Regarded as a question under section 27 of the General Clauses Act, the Tribunal would have to find what the facts were, namely, whether the assessee had come to know of the service of the notice at all or whether, having come to know that some notice had been served, he had not made any further enquiry and had not been informed of what the notice contained and whether the presumption raised by the section had been rebutted according as the facts found proved the affirmative or the negative. The Tribunal do not seem to have considered it necessary to pay any attention to that question at all, because they thought that the decision of the Rangoon High Court invoked by them was sufficient for the disposal of the case and that whether or not the notice had in some way or other reached the assessee was wholly immaterial. It is perfect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, might be expected to put the Tribunal in mind of what the real question was and how it was to be approached. In the case of M. X. De Nornha Sons v. Commissioner of Income-tax, U.P. [1950] 18 ITR 928, a notice to a firm, sent by registered post, was served on a clerk and it was held that there was a presumption of good service which would prevail unless the assessee could rebut it by good evidence. In the case of De Souza v. Commissioner of Income-tax, U.P. [1932] 54 All. 548 ; 6 ITC 130 , the postal acknowledgement was signed by a minor son of the assessee and it was held that there was good service. In the case of Shri Bhagwan Radha Kishen v. Commissioner of Income-tax, U.P . [1952] 22 ITR 104 , it was held that the endorsement of refusal made by postal authorities was sufficient to raise presumption of service on the assessee. The case of Nirmalabala Deli v. Provat Kumar Basu [1948] 52 CWN 659 decided by myself was not an income-tax case, but there also it was held that an endorsement of refusal was sufficient to raise a presumption of good service and the entire law on the subject of service by registered post was reviewed. As I said at the beginn ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
