TMI Blog2015 (5) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption is rebuttable one and the addressee is to prove before the Court of law that the postal article in fact did not reach to him and not tender by the postal authorities in due course of business. Mere denial does not rebut the presumption. If the stand of the respondent is taken to be true, the responsibility ceases the moment the postal article is despatched by speed post which is correctly addressed and the sufficient stamps required therefor, is paid, the authority losses the control of the said article and it would be presumed that the same has reached to the addressee. This Court can very well raise such presumption unless the materials produced before this Court speaks otherwise. If the order of transfer is passed on 15th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax, Kolkata - I, the respondent no.2 herein by which all the cases relating to the petitioner was transferred to New Delhi under Section 127 of the Income Tax Act, 1961. According to Mr. Poddar learned Senior Advocate for the petitioner the said order is invalid, illegal and suffers from incurable defects inasmuch as the same is passed in gross violation of the principles of natural justice and have been subsequently created and/or brought in existence in order to fill up the lacunae of a subsequent assessment orders passed by the jurisdictional Commissioner at New Delhi. He vehemently submits that no notice before initiation of the said proceeding was served upon his client and, therefore, no opportunity of hearing was given which offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, it is inconceivable and improbable that the notice issued under the aforesaid provision has returned with the remarks not known whereas the other notices have been duly received and served upon the assessee/petitioner. The learned Advocate for the respondent authorities submits that before passing a final order under Section 127 of the said Act, a notice was sent to the assessee/petitioner through a postal department and returned with the postal remarks not known . He further submits that the petitioner was all along aware of the initiation of a proceeding under the said provision and, therefore, the story of non-service of notice is concocted for the purpose of securing the interim order. He, however, says that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee/petitioner suffers prejudice for non-compliance thereof. Unless the prejudice is shown to have caused to the person, mere non-compliance of the principles of natural justice, does not invalidate the action of the authorities. It is no doubt true that the Commissioner assumes jurisdiction under the statute and, therefore, cannot travel beyond it. The jurisdictional Commissioner at New Delhi is empowered to proceed with the case on the basis of an order passed under Section 127 of the said Act and not otherwise. Though feebly, Mr. Poddar tried to impress this Court that an assessment order has been passed by the jurisdiction Commissioner at New Delhi without affording an opportunity and without having communicated to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that unless a notice containing reasons for the proposed transfer is served and an opportunity of hearing is given, the order ultimately passed should also be communicated, any infraction and/or non-compliance would render the said order invalid. From the records produced by the respondent, it appears that a notice dated 13.10.2014 was sent to the petitioner at the address recorded in the official register but came back undelivered with the remarks not known . It further appears from the postal envelope containing the said notice that a remark is made as addressee moved . Mr. Poddar, learned Senior Advocate for the petitioner, submits that the postal remarks not known is not a good service and, therefore, no presumption can be rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, 2015 and 20th February, 2015 gives an adverse indication as there was no reflection of the order of transfer therein. This Court, therefore, finds that a prima facie case has been made out which must be decided after the exchange of affidavits. The respondents are directed to file affidavit-in-opposition within a period of six weeks from date; reply, if any, be filed within one week thereafter. Let this matter appear after seven weeks as For Orders in the supplementary list. There shall be a stay of the operation of the impugned order dated 15th November, 2014 passed by the Commissioner of Income Tax Head Quarter, the respondent no.2 till eight weeks from date or until further order which ever is earlier. <!--[if gte mso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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