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2006 (3) TMI 219 - AT - Income TaxValidity of Service of notice issued u/s 143(2) - HELD THAT:- In view of sub-rule (3) of rule 9 of Order V of the CPC, the summons may be sent through speed post or so, in view of the amendment introduced. In fact the mode of speed post is only a faster mode of registered mail and just another mode of dispatch through registered post. In the present case, the notice was sent through speed post. The learned CIT (Appeals) has recorded the finding that the summons that was issued on 16-10-2002 was served upon the assessee on 20-10-2002. The assessee is a local resident of Delhi and therefore, it is quite reasonable to observe and infer that the notice sent through speed post must have been served upon the addressee (assessee) at least within 3-4 days. Otherwise also, the findings recorded by the learned CIT (Appeals) have not been rebutted or controverted by the assessee by making any positive statement regarding the notice sent on16-10-2002through speed post. Thus, in view of the amended provision of the CPC, firstly, the mode of sending notice through speed/registered post is recognized mode and secondly, a presumption can be drawn regarding service by speed post within 3-4 days in the present case, where the assessee was living in the city of Delhi. On this basis also we have to uphold the finding of the learned CIT (Appeals). Thus, it is held that the learned CIT (Appeals) was justified in recording the finding that notice had been validly served. We, therefore, do not find any scope to interfere in the finding of learned CIT(A) on the issue in question. Ground Nos. 1 & 1.1 taken by the assessee are, therefore, rejected. Disallowance of expenditure - carry forward the same to be set off in the succeeding assessment year - In the assessment order, the Assessing Officer has not examined the nature of expenses nor the aspect that the assessee was carrying on business activity in earlier and subsequent assessment years and expenditure claimed by it was allowed by the Department in earlier and subsequent years. The learned CIT(A) has also not examined these aspects. The order of the Tribunal for assessment year 1997-98, a copy of which has been placed on record was also not considered by the departmental authorities as no mention of this of order has been made. It appears that this order was not available at the time when these authorities passed orders. We are of the considered opinion that the matter has not been properly examined and the evidence filed by the assessee has not been properly appreciated. In the interest of justice, therefore, we consider it proper to set aside the finding of learned CIT(A). We, therefore, set aside the order of CIT(A) on the issue in question and restore the matter back to him for considering the entire material afresh in the light of our observations made above including the nature of expenditure and the fact that the expenditure was allowed to the assessee in earlier and subsequent years. Hence, the matter shall be decided as per law, of course, after providing opportunity to the parties of being heard. We order accordingly. In the result, assessee's appeal is partly allowed for statistical purposes only.
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