TMI Blog2022 (8) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... , much less deal with them in the impugned order. Rather, the Ld. CIT(A) ought to have directed the Assessing Officer to summon the persons, or to have himself summoned them. Au contraire, the Ld. CIT(A) wrongly endorsed the Assessing Officer's unsustainable finding that the assessee had not provided fresh addresses. Even otherwise, the assessee cannot be said to have gained anything by not providing the addresses of his donors. Rather, in the process, the claim of the assessee remained hanging fire for long years, before the ultimate passing of the order under appeal. We find this to be a fit case where despite the Authorities below erred in not summoning the assessee's donors, the matter requires to be once again remitted to the Assessing Officer to be decided afresh on merit, in accordance with law, after summoning the thirteen donors of the assessee, on affording due and adequate opportunity of hearing to the assessee. The assessee, no doubt, shall cooperate in the fresh proceedings before Assessing Officer. All pleas available under the law shall remain so available to the assessee. Appeal of the assessee is treated as allowed for statistical purposes. - ITA No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 1961; that the return of income for the year under consideration was filed on 21.7.2010, declaring NIL income; that the assessment was completed under section 143(3) of the Act at an income of Rs. 1,27,46,700/- after making addition under section 115 BBC of the Act; that aggrieved by the order of the Assessing Officer, the assessee preferred an appeal before the Ld. CIT(A), who deleted the addition of Rs. 66,46,700/- and confirmed the addition of Rs. 61,00,000/-; that aggrieved by the order of the Ld. CIT(A), the assessee as well as the Revenue filed cross appeals before the Lucknow Bench of the Tribunal; and that the Tribunal, vide its order dated 30.7.2015 dismissed the appeal filed by the Department challenging the deletion of addition, whereas the matter relating to the issue in respect of thirteen donors was restored to the file of the Assessing Officer for a fresh decision. In the remand proceedings, the Assessing Officer reconfirmed the addition of Rs. 28,50,000/-. The Ld. CIT(A), vide the impugned order, upheld the order of the Assessing Officer. 6. Aggrieved, the assessee is in appeal before us. The Ld. Counsel for the assessee has submitted that the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndorsement that they were not available at the given address; and in a couple of cases that the address was incomplete, drew an adverse inference even without examining or cross examining the postal authority. No presumption can be drawn without ascertaining the veracity of the report submitted by the postman and sine qua nan for drawing an inference against the Assessee was establishment of the fact that those who had not appeared had been duly served by the postal authorities and that the summons issued by the Assessing Officer had duly been received by them. 7. That instead of making a determination and ascertainment regarding the service of notice of summons upon those who had not appeared, the Assessing Officer proceeded to make an assessment by drawing an adverse inference against the Assessee. The total amount of donation made by 13 donors is about Rs. 28,50,000. 8. That the decision of the Assessing Officer was subjected to appeal and the Hon'ble Appellate Tribunal vide an order dated 30.07.2015 required furnishing of fresh and complete addresses of those who could not be served-or in the alternative to produce them in person. 9. That the addresses were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoora pata in four cases, is naam ka koi nahin in three cases and baar baar talaash karne par pata sahi nahin mila in one case (Original Assessment Order dated 29.12.2011, page 11, para 3.2.6). No reason for non-service like left without address has been communicated by the Postal Department. The comments from the Postal Department, as above, raised doubts regarding the genuineness or whereabouts of the person to whom the letter was sent. Left without address , on the other hand, shows that it was found that the person to whom the letter was addressed, was present at the place, but has left without further intimation to the Post Office about his new address. As such, in order to understand the evidence, a specific response ought to have been obtained by the Assessing Officer from the Postal Authorities. Else, it does not stand established that the donor/lender is a bogus entity or a nonexistent entity, or that their identity has not been proved. 11. The procedure for service by post is governed by section 27 of the General Clauses Act, 1897. This provision reads as follows: Meaning of service by post.-- Where any Central Act or Regulation made after the commenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another', 2007 (6) SCC 555, inter alia, held that: Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused', or 'not available in the house', or 'house locked', or 'shop closed', or 'addressee not in station', due service has to be presumed, [Vide Jagdish Singh v. Natthu Singh: AIR 1992 SC 1604; State of M.P. vs. Hiralal and Ors.: (1966) 7 SCC 523 and V. Raja Kumari V. P. subbarama Naidu and Anr.: (2004) 8 SCC 774 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
