TMI Blog1990 (9) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year 1984-85, he was assessed under section 18(4) of the Agricultural Income-tax Act (best judgment assessment, on default), by the second respondent, by order dated December 31, 1984. The revision filed therefrom was dismissed by the first respondent by exhibit P-6 order dated January 5, 1986. Exhibit P-3 assessment order, as affirmed in exhibit P-6 order, was assailed in the original petition. A learned single judge of this court dismissed the original petition, by judgment dated January 22, 1990. The petitioner in the original petition has come up in writ appeal. We heard counsel for the appellant, Mr. Jose Joseph, as also counsel for the respondent/Revenue, Special Government Pleader (Taxes), Mr. N. N. Divakaran Pillai. The mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment was completed under section 18(4) of the Act because the petitioner did not comply with the requisition under section 18(2) of the Kerala Agricultural Income-tax Act. Regarding the service of pre-assessment notice, in paragraphs 7 and 9 of the counter-affidavit, it is stated that the notice was sent as per section 64 of the Kerala Agricultural Income-tax Act by registered post to the petitioner at his last known place of residence and that is sufficient for the purpose of complying with the procedure. So, the short question that arises for consideration is whether there has been sufficient service of notice before the assessment was effected under section 18(4) of the Act ? It is common ground that the pre-assessment notice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Act has provided that the notice addressed to a person should be given or tendered to him (section 64(1)(a) of the Act). Only if he could not be found, the substituted service under section 64(1)(b) of the Act can, ordinarily, be resorted to. As an alternative to the service of the notice personally, the notice can be sent to him by registered post (section 64 (1) (c) of the Act). As stated by the Privy Council in Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102, L. R. 45 IA 222, if a letter properly directed containing notice is proved to have been put into the post office, it is presumed that the letter reached its destination according to the regular course of business and was received by the person to whom it was addressed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on that person. It is true that section 64(1) of the Kerala Agricultural Income-tax Act does not contain a clause similar to clause 26 of the Interpretation and General Clauses Act, 1125, to the effect that the legal fiction is applicable " unless the contrary is proved". But, it should be remembered that the deeming provisions contained in section 64(1) of the Kerala Agricultural Income-tax Act or section 26 of the Interpretation and General Clauses Act, 1125, are only legal fictions. In Radhakrishna Punchithaya v. H. Sanjeeva Rao, AIR 1963 Ker 348 ; [1963] KLT 656, Joseph J., delivering the judgment of the Bench, dealt with the scope and relevancy of the legal fiction as follows (at p. 349 of AIR 1963 Ker): "It has been said that eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his last known place of residence or business, under section 64(1)(c) of the Kerala Agricultural Income-tax Act, a presumption arises that, unless the contrary is proved, there is due service or proper service of notice on the said person the addressee. It is only a presumption which can be rebutted. If the registered letter is received back through the post office stating that it could not be delivered to the addressee or that the addressee was dead when the letter was taken, the presumption stands rebutted. Similarly, in cases where the notice is returned by the post office with an endorsement that the registered letter could not be delivered since the addressee could not be found or was not available, the presumption afforded by sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) of the Act. The contrary view expressed in exhibit P-3 assessment order and upheld in exhibit P-6 order is unreasonable and unsustainable in law. Exhibits P-3 and P-6 orders disclose errors of law apparent on the face of the record. They deserve to be annulled. With great respect to the learned single judge, we find ourselves unable to concur with his view that the service of notice was proper in the instant case. On this short ground, we hold that exhibits P-3 and P-6 orders are illegal. They are quashed. The second respondent is at liberty to proceed ahead with the assessment for the assessment year 1984-85 by serving a fresh pre-assessment notice on the appellant in accordance with law. The writ appeal is allowed - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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