TMI Blog1950 (9) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... of a corresponding rule entitling it to rehear the appeal when good cause was shown for default? The assessee is a firm carrying on business under the name and style of Messrs. M.X. de Nornha and Sons, Kanpur. The assessee filed an appeal before the Income-tax Appellate Tribunal, Allahabad Bench. A notice was issued by the Tribunal on 19th May, 1947, fixing 17th July, 1947, for hearing of the appeal. The notice was sent by registered post to the address given by the assessee. The notice was taken to the office of the assessee on 23rd May, 1947, and it was received by one H.D. Srivastava, a clerk of the firm, who endorsed his acknowledgment under the seal of the assessee, For M.X. de Nornha and Sons, Kanpur . This service was deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incing and held that it savoured of falsehood and rejected it as unreliable. We are, therefore, left with the fact that a notice was sent by registered post to the address given by the assessee. It was received by an employee of the firm, who even used the seal of the firm, on its behalf. The question is whether these facts were sufficient to hold that there was a valid service of the notice on the assessee, as contemplated by Section 63 of the Indian Income-tax Act. Section 63 of the Indian Income-tax Act is divided into two subsections. The first sub-section, so far as it is relevant to service of notices by post, runs as follows:- 63. (1) A notice or requisition under this Act may be served on the person therein named either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e being a firm, the service on the firm by post was all that was required, and the point for consideration is whether there was proper service on the firm or not. Sub-section (2) of Section 63 makes it clear that, in the case of a firm, the notice, instead of being addressed to the firm, may be addressed to any member of the firm or to the manager. If a notice is addressed to any member of the firm or to the manager and is duly served, it will be complete compliance with the provisions of Section 63 of the Act about the service of the notice. But this does not mean that if the notice is addressed to the firm itself and is received by a person authorised to receive it, on behalf of the firm, the notice is insufficient. So far as we can se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed a receipt for it, in the prescribed form, which will be presented to him for signature by the postman who delivered the registered article. It is urged by learned counsel for the assessee that the registered letter should not have been delivered to Shri H.D. Srivastava who was not authorised in writing to receive letters on behalf of the firm. No such allegation was made in the affidavit and we do not know whether Mr. Srivastava was or was not authorised in writing to receive letters on behalf of the firm. In any case, there was no reliable material on the record which could rebut the presumption about the proper service of the notice. We may also refer to rule 19 of the Post and Telegraph Rules, 1948, which is as follows :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were entirely different. In that case, the firm having closed its business, the only mode of service available was in accordance with Order XXX, Rule 3, Civil Procedure Code. The last case is in the matter of L.C. De Souza [1932] ILR 54 All 548 In that case, the notice sent by registered post was received by a minor son of the assessee. It was established that the minor had nearly attained the age of majority, was an intelligent person and bad, on previous occasions, also received registered letters addressed to his father. On those facts, the Court held that the presumption under Section 27 of the General Clauses Act had not been rebutted. Our answer to the first question, therefore, is that, in the circumstances of the case, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessee also agrees. The words in the notice being that the appeal will be heard and determined in the absence of the assessee , the Tribunal should have decided the case on merits and the dismissal for default cannot be said to be a hearing of the appeal and its determination. The word determination must mean a decision on the points raised in the case and not merely an order of dismissal for default. We are, therefore, of opinion that the Tribunal erred in dismissing the appeal for default. If it wanted to have the right to dismiss the appeal for default, it ought not to have issued a notice to the assessee that if he did not appear, the case would be heard and determined in his absence. The assessee was not bound to engage ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
