TMI Blog2006 (11) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... at great length on this sticky but significant question of law. This provision prescribes that no Notice shall be served on the Assessee after the expiry of twelve months from the end of the month in which the Return is filed. In the present case, the Assessee filed his Return declaring an income of Rs.41,98,800/- on 29.8.1997. The Assessment Order was eventually framed by the Assessing Officer (AO) on 23.2.2000 at Rs.58,36,860/-. Thus, notices served on the Appellant after 31.8.1998 would be devoid of legal efficacy by virtue of this proviso to the said sub-section. Undisputedly, the Notice issued by the AO was sent to the Assessee on 25.8.1998 by Registered Post. The Assessee asserts that the Notice was served on him on 1.9.1998, i.e. the day immediately after the expiry of the period envisaged by the sub-section. The AO had asked the Assessee to produce documentary evidence that the Notice in question was indeed delivered only on 1.9.1998, but the Appellant failed to furnish any such evidence. This position has been admitted before us; it has been candidly stated that the Assessee had been "foolish" not to retain the envelope containing the said Notice. The Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered in the ordinary course of post. It is, no doubt, true that the Bench was concerned about the mode of service rather than date of service; and that Notices/Reminders had been dispatched Under Postal Certificate (UPC) and not by Registered Post. However, the two presumptions contained in Section 27 of the General Clauses Act would apply universally to all cases. Mr. Aggarwal has drawn our attention to the fact that ITA No. 640/2006 titled Director of Income Tax vs. Gordhan Thaddani had been summarily dismissed by us on 16.10.2006. However, in that case the ITAT had returned a finding of fact that the Department had failed to establish the service of any Notice under Section 143(2) on the Assessee within the prescribed period. Even though the dismissal of an Appeal under Section 268 cannot be construed as a precedent or Authority on a proposition of law the facts in Thaddani's case are totally dissimilar to the facts of the present case. 5. Mr. Aggarwal has relied on the observations of the Supreme Court in Mehta Parikh and Co. vs. Commissioner of Income-Tax, Bombay [1956] 30 ITR 181. Their Lordships had noted that beyond calculation of figures, no further sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed by Registered Post would be deemed to have been delivered in the ordinary course of post. In the present factual matrix, if the notice had been dispatched on the 29 th , 30 th or 31 st August, in the ordinary course it would be presumed not to have been delivered on the last date of that month. The Department often resorts to DASTI service and the above observation would obviously not apply in such situations. Even apart from Section 27 of the General Clauses Act, Section 114 of the Indian Evidence Act, 1872 (hereinafter referred to as 'Evidence Act') permits the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in relation to the facts of the particular case. The Notices under Section 143(2) were undisputedly dispatched on 25.8.1998; the Assessee has acquiesced to the statement that this envelope had reached Civil Lines Post Office on the next day itself. 25.8.1998 fell on a Tuesday. Despite the assertion that the envelope had reached the Civil Lines Post Office on 26.8.1998, it would be fair for the Court to presume that a local letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee. It is well near impossible for a person to prove the negative beyond making a categorical and unambiguous statement. The position changes altogether where a person asserts a fact since then the burden of proving the assertion shifts upon him. The Assessee's case is that the Notice was received by him on 1.9.1998. However, it is conveniently stated that the envelope, which was the best and complete evidence on the conundrum, has been destroyed or lost. Mr. Aggarwal has contended that the Assessee was not duty-bound to appear before the AO since the Notice was received beyond the period of limitation. This assumes that the Assessee was aware of the legal provisions on that date or soon thereafter presumably after taking legal advice. In both contingencies it would have been normal for him to address a communication to the AO forthwith or at least within a month to the effect that proposed proceedings had been rendered legally inefficacious. The Assessee could also have obtained a Certificate from the Postal Department since he was fully aware of the importance of the date of delivery. The Assessee has hopelessly failed to discharge the burden which shifted to him immediat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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