TMI Blog1970 (3) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... for that assessment year the total income of the assessee was assessed at Rs. 33,300. In the wake of this, second assessment for the year 1960-61, the Income-tax Officer issued a revised notice under section 18A(1) of the Act on August 4, 1961, requiring the assessee to pay advance tax in the wake of the determination of her total income in the assessment year 1960-61. Obviously, this revised notice related to advance tax payable in regard to the coming assessment year 1962-63. The assessee had given to the Income-tax Officer her address as "Shrimati Lalita Kapur, through Hindustan Forest Company Ltd., Pathankot", and the notices under section 18A(1) of Act 11 of 1922 were sent to her to that address under registered cover, acknowledgment due. The revised notice was sent to her in that manner on that address. It was received on August 8, 1961, by the manager of the Hindustan Forest Company Ltd., Mr. Nanda, who made an endorsement upon the acknowledgment receipt, the finding of the Income-tax Appellate Tribunal on this being that he received the registered letter "for and on behalf of the Hindustan Forest Company Ltd., and not on behalf of the assessee." On December 17, 1961, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8A(1) of the Income-tax Act, 1922 ? 2. If the answer to question No. 1 is in the negative, whether the assessee committed a default liable to be punished under section 18A(9)(a) assuming that the estimate filed by her was known to be false or she had reason to believe the same to be untrue ?" The order of reference by the Tribunal is of August 2, 1966. In section 63(1) of Act 11 of 1922, it is provided that : "A notice 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 court, under the Code of Civil Procedure, 1908 (V of 1908)." The Tribunal was of the opinion that under Order 5, rules 9 and 12, and Order 3, rules 2, 3 and 6 of the Code of Civil Procedure, service of summons on an agent of a party is only valid when the appointment of the agent has been made by an instrument in writing and that verbal authority is not enough. In the present case no instrument in writing appointed Mr. Nanda as the agent of the assessee to accept or receive service for or on her behalf. Under sub-section (1) of section 63 of Act 11 of 1922, when service in the alternative is made by post on an assessee of a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t held that under section 27 of Act 10 of 1897, where a notice under the Income-tax Act is served by registered post, the service must be deemed to be effected if the notice was properly addressed, prepaid and posted by registered post, and the mere fact that the physical delivery of the notice was made to a person other than the addressee and a person who had no authority to receive the letter on the addressee's behalf, would not be sufficient to prove that there had been no proper service, the learned judges further holding that it would depend on the circumstances of each case whether this presumption has been rebutted by proof of further facts, and the onus of proving such further facts is on the assessee. The learned judges were in this approach following Harihar Banerji v. Ramshashi Roy which case has also been followed in Bharat Glass Factory v. Sales Tax Officer II, Allahabad. In the present case, in the terms of section 63(1) of Act 11 of 1922, notice under section 18A(1) of that Act was sent by post under registered cover properly addressed and prepaid to the address given by the assessee herself. So the conditions of section 27 of Act 10 of 1897 were fulfilled and servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and whether the presumption raised by the section had been rebutted according as the facts found proved the affirmative or the negative." In that case the learned judges in the end left it to the Tribunal to decide whether presumption under section 27 of Act 10 of 1897 had or had not been rebutted. This is exactly the position that is now taken by the learned counsel for the Commissioner of Income-tax that in this matter, as in Malchand Surana's case the question whether the presumption under section 27 of Act 10 of 1897 has or has not been rebutted, should be left to be decided by the Tribunal, the presumption having arisen of the service having been effected upon the assessee by registered cover in the circumstances as explained above and within the meaning and scope of section 27 of that Act. In Malchand Surana's case the Tribunal had not given any findings on facts. In this case the Tribunal has said expressly in its appellate order of February 18, 1964, as also in the reference order that Mr. Nanda of the Hindustan Forest Company Ltd., Pathankot, did not deliver the notice or communicate its contents to the assessee. So the registered letter that was received by Mr. Nanda w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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