TMI Blog2012 (8) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... mail as also its delivery is recorded. If the aforesaid attributes of registered post are present in any other class of mail or post forming part of an established system, that mail or post would, in substance, be registered post notwithstanding the name by which it may be called. 'Speed post' is a part of established system of delivery in which the receipt of mail as also its movement and delivery are recorded. "Speed Post" has all the principal attributes of "registered post". As the assessee has led no evidence to prove that the impugned notice was not received by him or that he was not responsible for its non-service and the details given by the AO in the assessment order included not only the receipt no. under which speed post was sent but also the tracking code, it is thus proved that a proper notice was issued to assessee in the course of the assessment proceedings. When any authority decides the matter on preliminary issue and if finding on that preliminary issue is reversed, then normally, the matter is required to be remanded for deciding the remaining issues, if the remanding authority/Court itself is not deciding the other issues - As CIT(A) allowed the assessee' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that notice under Section 143(2) of the Act of 1961 was not served within the stipulated period of 12 months from the expiry of the end of the month in which the returns was furnished. The C.I.T. (Appeal) in view of this decision, on question of law in favour of assessee, did not choose to decide other issues raised by the assessee with respect to the addition made by the Assessing Officer. Against this decision of the C.I.T. (Appeal) dated 04.6.2009, the Revenue preferred an appeal only on one ground obviously, for the reason that the C.I.T. (Appeal) allowed the appeal of the assessee only on one issue and that issue was relating to the mandatory service of notice under Section 143(2) of the Act of 1961. The following ground was raised in the appeal: "Whether on the facts and in the circumstances of the case, the ld. CIT(A) was justified in canceling the assessment under Section 144 of the Income Tax Act, 1961 on the ground that notice under Section 143(2) was not properly served well in time." 4. The Income Tax Appellate Tribunal, Circuit Bench, Ranchi by a detailed order held that notice under Section 143(2) was duly served upon the assessee and finding recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant provisions of law and particularly, Section 292BB of the Act of 1961, which provides that in a case where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and in that situation the assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was not served upon him or not served upon him in time or it was served upon him in an improper manner. According to learned counsel for the assessee, revenue cannot take help of this provision in view of the fact that, in the same Section it has been provided that such deeming provision will not apply, if the assessee raised the objection of service before making amendment order by Assessing Officer. Here in this case, the appellant-assessee came to know about the proceedings taken by the Assessing officer before completion of the assessment and submitted an objection clearly stating that notice under Section 143(2) of the Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the parties on this issue. It will be relevant to mention here that as per Section 282 of the Act of 1961, notice can be served either by post or in the manner in which the summons are issued by the Courts under the provisions of Code of Civil Procedure. Therefore, if the argument of the learned counsel for the appellant, that Income Tax Act of 1961 is special Act and it contains the provisions for service of notice, according to which only a notice can be served upon assessee; then in that view of the matter, the only recourse is that notice should be issued either by post or it may be served as is served under the provisions of Code of Civil Procedure. In this case, a notice under Section 143(2) of the Act of 1961 was alleged to has been sent by post, which includes sending notice by Ordinary Post, Post under Certificate, Registered Post, Registered A/D or by Speed Post and this fact is not in dispute that notice was sent by "Speed Post" and, therefore, notice was in accordance with law under Section 282(1) of the Act of 1961. 10. Section 292BB of the Act of 1961 is a deeming Clause, which is quoted as under: "[292BB.Notice deemed to be valid in certain circumstances- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in the present case. 12. The next question arose is whether in the facts of the case, the Tribunal has committed error of law in holding that the service was valid?, which is the question number 1 framed in this appeal. 13. Though, prima-facie , above is question of fact but learned counsel submitted that it is a case of wrong drawing of presumption from the undisputed fact, therefore, this is a question of law. Since there is no presumption available in favour of the Department, we have to see evidence available on record with respect to the issuance of notice upon assessee. 14. From a bare perusal of the order-sheets, shown to us by the assessee, started from dated 24.10.2007, it is clear that in the order-sheet dated 24.10.2007, on the top of it, the name and address of the assessee was mentioned and thereafter it was ordered that notice under Section 143(2) be sent. The notice, in fact, was sent on 24/25.10.2007 and its receipt number is given in the order of the Assessing officer which is, receipt no. 4544 and "Speed post" number is also given which is EE875408254 IN, dated 25.10.2007. So far as dispatch of the notice under Section 143(2) of the Act of 1961 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posting by registered Post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. It is evident on bare perusal of section 27 of the General Clauses Act that it creates a legal fiction by which the service of a document is deemed to be effected once the said document is properly addressed, prepaid and poster by registered post. The said legal fiction can be displaced only by proving the contrary. The aforesaid legal fiction follows automatically on the fulfillment of the conditions precedent for attracting the legal fiction. It is not the case of the assessee that the envelope containing the said notice was not properly addressed or prepaid. According to the assessee, the only ingredient of section 27 which is not satisfied is that the impugned notice was sent by "speed post" and therefore section 27 of the General Clauses Act would not apply as it applies to notices sent by "registered post" alone. The issue that arises for consideration is therefore whether notice by registered post includes notice by speed post also within the meaning of section 27 of the Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , entered in a register, spec. (of a postal item) recorded at the point of dispatch. And indemnified against loss or damage." At page 964 of Black's Law Dictionary (Seventh Ed.), "registered mail" is defined as the "Mail that the US Postal Service records at the time of mailing and at each point on its route so as to guarantee safe delivery." Thus, it can safely be concluded that "registered post" is the mail that is registered by the post/mail office when sent in order to assure safe delivery. 14. It is well established that it is the substance that gives meaning to a word or phrase. A phrase or word without substance would be meaningless. Let us therefore have a look at the substance in the term "registered post". There are two principal attributes of registered post: one, there is established system in which receipt of the mail is recorded; and two, movement of such mail as also its delivery is recorded. If the aforesaid attributes of registered post are present in any other class of mail or post forming part of an established system, that mail or post would, in substance, be registered post notwithstanding the name by which it may be called. 'Speed post' is a part of establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. In 1793, Immanuel Kant, well-known German philosopher, demanded that even permanently unalterable laws should not be allowed to hold back progress. It is to take care of such situations that section 6 of the Interpretation 1999 of New Zealand specifically provides thus: "Enactments apply to circurrostarIces as they arise." Thus the ambulatory approach as a tool in interpreting elderly legislations is well recognized. Legislation normally continues in force until amended or repealed, regardless of changes in social, technological or other conditions. Over time, the meaning that it bore in the context in which it was enacted may come to produce anachronistic results, or fail to fulfil its purposes, Parliament has a clear mandate to update legislation but systematic legislative updating has proved impossible because of its institutional limitations and the sheer number of statutes. Therefore, the courts have assumed an ambulatory role, updating statutes to reflect changed conditions. Unforeseen innovations and developments, such as developments in technology, or novel social or commercial practice, would need to be accommodated within existing legislation if its text and purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the information sent from computers to teletext screens was a 'document' despite the fact that teletext had been introduced subsequently to the enactment of the legislation. It was further held that its regulation fell within the purposes of the Act, and the word 'document' was capable of covering such projections. The aforesaid decision has been cited with approval by the Hon'ble Supreme Court in Union of India v. Naveen Jindal 2004 (2) SCC 510; AIR 2004 SC 1559 as under: "In Victor Chandler International v. Customs and Excise Commissioners [(2000) 2 All ER 315 at p. 322], it was stated: "27. There are, of course, some gaps in legislation that cannot be filled by judge made law. But it is now a well known rule of statutory construction that an 'ongoing' statutory provision should be treated as 'always speaking'. The principle is set out in Bennion Statutory Interpretation (3rd edn, 1997), p.686: (2) It is presumed that Parliament intends the court apply to an ongoing Act a construction that continuously updates its wording to allow for changes since, the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes into existence was a species of it." Thus, where an Act of 1790 (which was deemed to be a public Act) exempted ferry proprietors from assessment to any "tax .... whatsoever" in respect of the ferry, it was held in Pole Carew v. Craddock [1920] 3 KB 109 that the exemption extended to income-tax even though that tax was first imposed after 1790: extracted from the said page of Maxwell on The Interpretation of Statutes. 21. In view of the aforesaid principles, the phrase "registered post" appearing in section 27 of the General Clauses Act needs to be construed on a construction that continuously updates its sweep to allow for changes after the said Act: was passed. It has been observed at page 99 of "Maxell on The Interpretation of Statues" ( supra ) that "Provisions regarding the giving of notice often receive a liberal interpretation." The aforesaid observations have been cited, with approval, by the Hon'ble Supreme Court in V Raja Kumari v. P Subbarama Naidu AIR 2005 SC 109. We therefore hold that the phrase "registered post" in the said section 27 would take within its sweep not only "speed post" but also all other mails forming part of established system of mails in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to s. 114 of the Indian Evidence Act whereunder it is stated that the Court may presurne that the, common course of business has been followed in a particular case, that is to say, when a letter is sent by post by prepaying and properly addressing it the same has been received by the addressee. Undoubtedly the presumptions both under s. 27 of the General Clauses Act as well as under section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. 24. In D Vinod Shivappa v. Nanda Beliappa AIR 2006 SC 2179, the Supreme Court has held as under: "If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered post. Details given in the assessment order as also receipt of speed post make it clear that all the conditions stipulated by section 27 of the General Clauses Act are satisfied and hence service of the impugned notice would be deemed to have been effected well before the expiry of time limit stipulated by section 143(2) as the said notice was sent several months before the expiry of period stipulated by the time provision of section 143(2). 27. Non-rebuttal of Statutory Presumption: The legal fiction created by section 27 of the General Clauses Act by which service is deemed to have been effected would continue to be operative unless the party denying the service proves that it was not really served and that he was not responsible for such the absence of proof by the party denying the service that he has not received it or that he was not responsible for its non-service, the legal fiction created by section 217 of the General Clauses Act cannot be displaced. In V Raja Kumari v. P Subbararna Naidu AIR 2005 SC 109, the Hon'ble Supreme Court has, in the context of section 138 of the Negotiable Instruments Act, held as under: "No doubt Section 138 of the Act does not requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terpretation of Statutes" (Twelfts Ed. By P. St. J. Langan), wherein it has been stated that the "language of the statute is generally extended to new things which were not known and could not have been contemplated when the Act was passed, when the Act deals with a genus and the thing which afterwards comes into existence was a species of it." The Speed Post is a new mode of sending post, and therefore, this new postal mode if is not mentioned in Statute specifically, even then because of above reason that service by Speed Post is included in generic word "Post" or "Registered Post". 19. In view of absence of any rebuttal, we do not find any reason to hold that notice under Section 143 (2) of the Act of 1961 was not served upon the assessee in time. Issue No. 1 is, therefore, answered that the Tribunal was right in arriving at a conclusion that notice under Section 143 (2) of the Act of 1961 was validly served upon the assessee. 20. So far as Issue no. 2 is concerned, we are of the considered opinion that it is settled law that when any authority decides the matter on preliminary issue and if finding on that preliminary issue is reversed, then normally, the matter is req ..... X X X X Extracts X X X X X X X X Extracts X X X X
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