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TMI Blog1953 (7) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... n the 14th October, 1949. The other notice which was also served at Khanpur was received by B. Banerjee on the 11th November, 1949, who also signed for the assessee. The assessee applied for copies of the orders on the 1st of December, 1949, and received them on the 15th June, 1950, and he filed his petition of appeal to the Assistant Commissioner on the 5th July, 1950. On the 30th August, 1950, the petition of appeal was put up to the Appellate Assistant Commissioner of Income-tax and was ordered to be registered and the Income-tax Officer was called upon to report on the petition of appeal by the 20th September, 1950. What happened on the 20th September, 1950, we do not know but the second order recorded is "Issue notice fixing 5-3-51/10-3-51, for hearing at Dacca subject to admission of appeal." An objection appears to have been taken to the appeals on the ground that they were out of time and the nature of the objection of the Department appears from an order dated the 6th April, 1951, of the Appellate Assistant Commissioner, to be that the office had reported that no application was made by the appellant for copies of the orders and therefore the appeals were out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as qualified under section 61(1) of the Act to act as such and appeared with an Advocate. No evidence of any kind was adduced on the sworn testimony of any one personally acquainted with those facts or an affidavit by any such person. On the above facts two questions with regard to the two cases relating to the two years of assessment have been referred for the decision of this Court, namely, with regard to the assessment year 1944-45: "Whether on the findings recorded by the Tribunal, the service of notice of demand on Mr. Bhaumick was a valid service as contemplated by section 63 of the Income-tax Act, read with Order V, rule 12, of the Code of Civil Procedure, so that the starting point of limitation for an appeal to the Appellate Assistant Commissioner can be said to be the 14th October, 1949?" If the answer to the above question be in the affirmative, the second question referred is: "Whether, in the circumstances of the case, the order of the Appellate Assistant Commissioner refusing to condone the delay is an order falling within section 30(2) and, if so, whether the appeal to the Tribunal against the refusal to condone the delay was incompetent?" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had an agent empowered to accept service in which case service on such agent shall be sufficient; and it was urged that in this case it was not shown that it was not practicable to effect the service in person or that the persons on whom the service was actually made were agents of the assessee empowered to accept service on his behalf. It was, therefore, argued that limitation would run from a later date when the assessee actually received those notices. In support of this argument two cases were relied upon by the learned Advocate for the assessee, namely, the case of Commissioner of Income-tax v. Dey Bros. [1935] 3 I.T.R. 213 and the case of Commissioner of Income-tax v. Baxiram Rodmal [1934] 2 I.T.R. 438. But both these cases were cases in which the notices were served as sommonses and were not sent by post and therefore they are distinguishable from the facts of the present case. To my mind from the language of section 63, sub-section (1), of the Income- tax Act, it is clear that one of two alternative modes of service of notice has been made available for service of any notice under the Act, namely, (1) it may be sent by post, and (2) it may be served by way of a summons i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the notices were served not on the assessee himself but on two other persons, namely, Bhaumick and Bannerjee itself is sufficient to rebut the presumption of service under section 27 of the General Clauses Act. In reply, the learned Advocate for the Income-tax authorities has relied on the decision of the Privy Council in the case of Harihar Banerji v. Ramshashi Roy [1919] I.L.R. 46 Cal. 458 where it was held that: "the presumption that the notice so served has been received is greater when the letter is registered as in the present case, and is not rebutted but strengthened by the fact that a receipt for it is produced signed on behalf of the addressee by some person other than the addressee himself." I may here also refer to In the matter of Desouza [1932] 54 All. 548 where a notice was sent by registered post under section 63(1) of the Income-tax Act and was received by the assessee's minor son who did not even sign for his father but received the notice by signing only his name, where it was held that the service of notice was a good service. In this connection our attention was also drawn to paragraph 113 of the Postal Guide published in 1946 where postm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects the appeal as time-barred on the date of the hearing, the order is one passed under section 30(2) and not one under section 31 and that the mere issue of a notice informing the petitioners of the date on which their appeal would be considered does not mean that their appeal had been admitted. All the cases on which reliance has been placed in support of this point of view were cases in which the Assistant Commissioner was held not to have entertained the appeal and in some of those cases the appeals were admittedly presented out of time with a prayer for condonation of the delay. In this connection reference was also made to the case of K.K. Porbunderwalla v. Commissioner of Income-tax, Bombay City [1951] 20 I.T.R. 621, in which it was held not without some inconsistency that the portion of the Appellate Assistant Commissioner's order dismissing the appeal was appealable under section 31 but the portion of the order refusing to condone the delay fell under section 30(2) and was not appealable. To my mind, it is not the nature of the order that makes it appealable under section 31 or not appealable under section 30(2), but it is the stage at which the order is made that det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase and that case is where the Appellate Assistant Commissioner refuses to condone the delay on the ground that there is no sufficient ground. The view taken by the Legislature is that in such a case there should be no further appeal and the party should abide by the decision of the Appellate Assistant Commissioner. But it is clear that it was not the intention of the Legislature that in a case where the Appellate Assistant Commissioner takes the view that the appeal is barred by limitation his view should be final and should not be challenged before the Tribunal. The Appellate Assistant Commissioner may take the view that the appeal is barred by limitation on various grounds; he may hold that the appeal is barred on appreciation of evidence as to facts, he may consider that the appeal is barred by limitation on an interpretation of the law, but in every case his decision is subject to a challenge before the Tribunal." From the observations it would appear that it is only when the appellant comes forward with an appeal which he admits to be out of time but offers an explanation for the delay which is not accepted by the Assistant Commissioner, that his order comes under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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