TMI Blog1996 (9) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal justified in not following the decision in K. Mohammed v. ITO [1977] 107 ITR 808 (Ker)?" The assessment year is 1980-81. The assessee did not file any return of income. Notice under section 148 of the Act was issued and thereafter the assessee filed a nil return on October 20, 1983. Therefore, the Income-tax Officer took resort to section 143(2) of the Act and section 142(1) of the Act as well as issuance of summons under section 131 of the Act. The Assessing Officer finding no response, had to proceed to complete the assessment under section 144 of the Act on the basis of best judgment assessment. It is also pertinent to note that even thereafter no action was taken by the assessee, under section 146 of the Act to reopen the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as summons under section 131 of the Income-tax Act, 1961, were not properly served. At that stage, the Commissioner considered the fact that the appellant accepted the service of demand notice as well as the assessment order which were served on him on April 12, 1985. This was taken into consideration by the Commissioner as a situation of probability to consider the contention of the assessee that earlier notices were not properly served on the appellant. It is pertinent to note that the contention of the assessee before the Commissioner was not that there was no service, but it was that there was no proper service. Obviously, the Commissioner proceeded on the general law of presumption that if the address is correct and additionall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the first appellate authority. It appears that in the further travel of the proceedings before the Income-tax Appellate Tribunal on behalf of the Revenue in fact acknowledgment cards evidencing the service of the notices on July 20, 1984, and November 9, 1984, were produced for the perusal of the Tribunal and this resulted in the outright rejection of the argument of the assessee that there was no opportunity for him to defend the matter. This led the assessee to what is described by the Tribunal as the next leg of the argument. It is to the effect that the assessee had produced the evidence in the nature of sales tax assessment order to the effect that the assessee was not running a hotel but it was someone else on his behalf and thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect can yet be considered from another angle. Even the submission that is made before the Tribunal shows its half-heartedness. What is submitted is that the assessee was not running the hotel, but it was someone else who acted on his behalf. Even before the Tribunal it was this someone else has also been withheld leaving everyone concerned to speculate in regard thereto. There is no doubt that if the evidence is produced it would be the legal duty of the authority concerned. There is no material or production of such evidence and this is in addition to the half-heartedness of the submission in regard thereto as pointed out above. Apart therefrom rule 46A of the Income-tax Rules relates to the appellate proceedings before the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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