1970 (3) TMI 12 - HC - Income Tax

Notice for payment of advance tax - Notice sent by registered post not properly served - no notice u/s 18A(1) having been given to the assessee - therefore penalty provision of sub-section (9) of section 18A was not attracted

Issues Involved:
1. Validity of service of notice under section 18A(1) of the Income-tax Act, 1922.
2. Liability of the assessee for penalty under section 18A(9)(a) of the Income-tax Act, 1922.

Detailed Analysis:

Issue 1: Validity of Service of Notice under Section 18A(1)

The primary issue was whether the assessee was validly served with an order in writing for payment of advance tax under section 18A(1) of the Income-tax Act, 1922. The notice was sent to the address provided by the assessee, "Shrimati Lalita Kapur, through Hindustan Forest Company Ltd., Pathankot," and was received by Mr. Nanda, the manager of the company. The Tribunal found that Mr. Nanda received the registered letter "for and on behalf of the Hindustan Forest Company Ltd., and not on behalf of the assessee."

The Tribunal held that under Order 5, rules 9 and 12, and Order 3, rules 2, 3, and 6 of the Code of Civil Procedure, service of summons on an agent is only valid when the agent is appointed by an instrument in writing. Since Mr. Nanda was not appointed by an instrument in writing, the service was not valid. Furthermore, Mr. Nanda did not deliver the notice or communicate its contents to the assessee.

The Commissioner of Income-tax argued that under section 27 of the General Clauses Act, 1897, service is deemed to be effected by properly addressing, prepaying, and posting by registered post, unless the contrary is proved. The Commissioner cited Commissioner of Income-tax v. Malchand Surana, which held that service must be deemed to be effected if the notice was properly addressed, prepaid, and posted by registered post, even if physical delivery was made to a person without authority.

However, the Tribunal found that Mr. Nanda did not deliver or communicate the notice to the assessee, thus rebutting the presumption under section 27 of the General Clauses Act. The court concluded that the service was not validly effected on the assessee, answering the first question in the negative.

Issue 2: Liability for Penalty under Section 18A(9)(a)

The second issue was whether the assessee committed a default liable to be punished under section 18A(9)(a), assuming that the estimate filed by her was known to be false or she had reason to believe it to be untrue. Section 18A(9)(a) imposes a penalty if the estimate of tax payable is untrue and the assessee had reason to believe it to be so.

The court noted that under sub-section (2) of section 18A, the assessee is required to furnish an estimate of her income only if she has been served with a notice under sub-section (1). Since the first question was answered in the negative, indicating no valid notice was served, the assessee was not required to furnish an estimate under sub-section (2). Consequently, the penalty provision of sub-section (9) was not applicable.

The court answered the second question in the negative, confirming that the assessee was not liable for the penalty.

Conclusion:

Both questions in the reference were answered in the negative, indicating that the assessee was neither validly served with the notice under section 18A(1) nor liable for the penalty under section 18A(9)(a). The Commissioner of Income-tax was directed to bear the costs of the assessee, with counsel's fee set at Rs. 250.

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