TMI Blog1957 (2) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... for 6th December, 1949, and a notice thereof was issued to the petitioner at his Simla address, as given in the memorandum of appeal, by registered post pre-paid and acknowledgment due. The registered letter was delivered to the post office on 28th October, 1949. The addressee being not available in Simla, the post office there redirected the letter to Kuthiala House, Hoshiarpur. The postal authorities at Hoshiarpur returned the cover to the office of posting with an endorsement in pencil Inkariwala hai (refuses to accept), presumably made by the postal peon. On 6th December, 1949, when the appeal was called for hearing, no one was present on behalf of the appellant. On 13th December, 1949, the Tribunal dismissed the appeal with the following order : A notice fixing the hearing of assessees appeal for 6th December, 1949, was issued by the office on 27th October, 1949. The notice was issued to the assessee under registered post acknowledgment due, it was returned by the post office with the remarks that the addressee refused to receive the service of the notice. This refusal is tantamount to a service. Nobody was present on the date of the hearing. The appeal is, therefore, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Mahajan, learned counsel for the assessee, contends that this Court while answering the questions should take regard of the events that subsequently happened and take into consideration the documents relating thereto. It is further submitted that the Appellate Tribunal May be required to state the case including the subsequent events and refer it under sub-section (2) or (4) of section 66. Now, it is a well-settled principle of law that the jurisdiction of the High Court, which is only advisory and a limited one, is confined to the determination of the questions raised and referred by the Appellate Tribunal. The High Court cannot raise and start determining any question which has not been referred either under sub-section (1) or (2) of section 66. The section makes it further clear that reference can only be made with respect to a question of law which arises out of an order of the Appellate Tribunal under sub-section (4) of section 33 of the Act. No reference would, therefore, be permissible from an order of the Tribunal made under any other provision of law or in exercise of its inherent jurisdiction. In Commissioner of Income-tax, Madras v. Mtt. Ar. S. Ar. Arunachalam Chettia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raise and determine any new or additional questions. The events that took place after the order of the Tribunal dismissing the appeal under section 33 (4) cannot be gone into or taken into consideration. As a matter of fact, the documents relating thereto should not have been included in the paper book. The Tribunal had refused to include in the statement any reference to the assessees application for restoration of the appeal, his affidavit in support of the facts stated in the application and the order of the Tribunal dismissing that application. In Purshottam Laxmidas v. Commissioner of income-tax, Bombay City, it was held that the paper book in a case referred to the High Court under section 66 (1) of the Income-tax Act can only consist of the statement of the case and the documents which the Tribunal considers should be included in the paper book and that the assessee has no right to incorporate in the paper book a document with regard to which the Tribunal refuses to give its permission for being so included. The subsequent events or the documents relating thereto cannot, therefore, be taken into consideration, nor can any decision be based thereon. Let me now proceed to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, for whatsoever reason, there is a direct and self-evident proof of the fact that the letter was not delivered. According to him, the report of the postman that the addressee had refused to accept the letter cannot be taken notice of or admitted into evidence without formal proof, and there would be no presumption of service in such a case. Reliance is being placed upon Gobinda Chandra Shaha and Another v. Dwaraka Nath Pattita, Jaganath Brakhbhau v. J. E. Sassoon and Others, Butto Kristo Roy and Others v. Gobindram Marwari and Others. I do not see any force in the contention. The presumption equally attaches to the postal peons report refused because the report is made in the usual course of business and it is open to the Court to presume that the usual course was followed in the particular case. When a letter is duly addressed and posted, particularly when it is also registered, the presumption is that the postman did tender the letter to the addressee. The fact that the letter came back does not in itself rebut the presumption that it was tendered. The writing of the endorsement refused falls within the ambit if common course of business of the postman and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant, and the ultimate decision was that the endorsement of refusal made by the postal authorities on the cover was not admissible in evidence in proof of the allegation that the cover was tendered to and refused by the addressee on the date of the endorsement. The case thus contains no final decision that the endorsement, such as it was, could not be taken onto consideration, unless the postman was examined. Directly the matter came up for decision of the same Court in Nirmalabai Debi v. Provat Kumar Basu Reliance on Gobinda Chandra Shaha and Another v. Dwaraka Nath Pattita was placed in support of the contention that since the registered letter had come back, the presumption that it had been delivered in due course to the addressee was rebutted and since the postman had not been examined to prove the endorsement of refusal, there was no evidence that the letter had been tendered to the addressee. The argument was not accepted by Chakravatti, J., and it was held that where a notice addressed to a person and sent by registered post is returned to the sender with an endorsement refused made by the postman, the notice would be presumed to have been duly served upon the add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng notion that the Appellate Tribunal the appeal dismissed for default and that the Tribunal had, therefore, refused to exercise jurisdiction vested in them by law. The matter, in my opinion, cannot be gone into because of there being no proper petition before us in this connection. In the application dated 12th December, 1952, with the heading Petition under section 66 (4) of India , the relief claimed is stated as follows : ............ that the statement of case submitted by the Appellate Tribunal be referred back to them with the direction that a reference to the miscellaneous application aforesaid and the Tribunals order thereon be included in the statement of case which should be returned to this Honble Court with those additions thereto and the documents referred to in para. 11 above. The respondents, therefore, have had no notice of the fresh case sought to be made out by the assessee during arguments. The assessee May, if so advised, present a fresh application for the purpose. This application of his stands dismissed. In view of the peculiar circumstances of the case no order is made as to costs. Reference answered accordingly. - - TaxTMI - TMITax - Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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