2014 (12) TMI 131 - AT - Income Tax

Scrutiny / Regular Assessment - Service of notice - Notice served u/s 143(2) within the prescribed time or not assessee contended that the acknowledgement of service of notice does not bears the signature of the assessee - Held that - The notice u/s 143(2) dated 29th October 2002, was sent through speed post duly addressed in the name of the assessee and sent on the address which was provided in the return of income on 30th October 2002 - The post was duly delivered at the address mentioned therein on 31st October 2002, which is evident from the acknowledgement of the postal department placed on record - it creates a legal fiction by which the service of a notice is deemed to be effected, once the notice is properly addressed, pre paid and posted by registered post - Such a contention of the assessee is legally not tenable, because once the notice has been sent through post and the postal authorities have duly acknowledged that the same has been served on a given date on the correct address of the person on whom the post was addressed, then it is not open for the assessee to say that the post was received by the some other person - The presumption in law is that it has been served upon the assessee. No other notice u/s 143(2), was sent by the AO, which has been claimed to have been received by the assessee on 15th November 2002, other than the one dated 29th October 2002, sent through speed post - If there is no second notice, then the presumption is that the same notice dated 29th October 2002, sent through speed post which was served on 31st October 2002, has been received by the assessee thus, the notice u/s 143(3) was validly served upon the assessee with the statutory time limit and the order of the CIT(A) is upheld Decided against assessee.

Issues Involved:
1. Validity of service of notice under section 143(2) of the Income Tax Act, 1961.
2. Timeliness of the notice served under section 143(2).
3. Proper addressing and delivery of the notice.
4. Presumption of service under the General Clauses Act, 1897.
5. Rebuttal of presumption of service by the assessee.

Detailed Analysis:

Issue 1: Validity of Service of Notice under Section 143(2) of the Income Tax Act, 1961
The assessee challenged the validity of the assessment order on the grounds that the notice under section 143(2) was not served within the statutory period. The Commissioner (Appeals) and the Tribunal both examined whether the notice was properly served within the prescribed time limit. The Tribunal upheld the Commissioner (Appeals)'s finding that the notice was validly served.

Issue 2: Timeliness of the Notice Served under Section 143(2)
The assessee filed the return of income on 31st October 2001, and the notice under section 143(2) had to be served within 12 months from the end of the month in which the return was filed, i.e., by 31st October 2002. The notice dated 29th October 2002 was sent by speed post and delivered on 31st October 2002, which was within the statutory period.

Issue 3: Proper Addressing and Delivery of the Notice
The notice was sent to the address mentioned in the return of income: "B-8, Panchsheel Apartment, Andheri-Kurla Road, Andheri (E) Mumbai 400 093." The postal department's acknowledgment confirmed delivery on 31st October 2002. The assessee contended that the signature on the acknowledgment was not his, but the Tribunal noted that the notice was correctly addressed and delivered by a government agency, fulfilling the legal requirements.

Issue 4: Presumption of Service under the General Clauses Act, 1897
Section 27 of the General Clauses Act, 1897, creates a presumption that service is deemed to be effected when a notice is properly addressed, pre-paid, and posted by registered post. The Tribunal held that this presumption applied as the notice was correctly addressed and delivered by the postal authorities.

Issue 5: Rebuttal of Presumption of Service by the Assessee
The assessee argued that the notice was actually received on 15th November 2002 by a sweeper of his relative. However, the Tribunal found no evidence to support this claim. The Tribunal emphasized that the presumption under Section 27 of the General Clauses Act can only be rebutted by proving that the notice was not received or was received on a different date, which the assessee failed to do.

Conclusion:
The Tribunal concluded that the notice under section 143(2) was validly served within the statutory period. The presumption of service under the General Clauses Act was not rebutted by the assessee. The Tribunal affirmed the findings of the Commissioner (Appeals) and dismissed the assessee's appeal. The order was pronounced in the open Court on 22nd August 2014.

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