9911796707
TMI Blog2012 (8) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... h. Then, it was again directed to issue notice on 08.08.2008. In response to that notice under Section 142(1), one person appeared and filed photocopy of office copy of returns of Assessment Year 2006-07, computation of Income, P & L Account and Balance Sheet. However, as per the Assessing Officer, when he was asked to mark his attendance, he refused to mark his attendance. On 13.8.2008, the assessee's representative filed reply to notice under Section 142(1), dated 16/25.07.2008 and in reply, it has been stated that notice under Section 143(2) was not served within statutory period and therefore, the case under Section 143(3) may be dropped. After considering this objection, the Assessing Officer held that notice was duly served and proceeded to compute the income and passed the assessment order on 17.12.2008 assessing the total income of assessee to the tune of Rs. 19,92,440/- and ordered for initiation of penalty proceedings under Sections 271[1][b] & 271[1][c] of the Act of 1961. 3. Against the assessment order dated 17.12.2008, the assessee preferred an appeal before the C.I.T. (Appeals), Ranchi, who vide order dated 4.06.2009 allowed the appeal of the assessee only on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax Appellate Tribunal was right in rejecting the contention of the petitioner on merits about the correctness of addition made by the A.O. only on the ground that since C.I.T. (Appeal) set aside the assessment order on the ground of jurisdiction and, therefore, without filing any cross-objection or appeal in the matter where the order passed by the C.I.T. (Appeal) was in favour of the assessee, the Tribunal has no jurisdiction to address the issue about the correctness of addition made by the A.O.? 5. The first question, according to learned counsel for the appellant, is a question of jurisdiction of the Assessing Officer, as notice was not served within the stipulated period as provided under Section 143(2) (ii) of the Act of 1961 and it is settled law that unless a notice is served upon the assessee within a period of 12 months (as the limitation prescribed at the relevant time), the Assessing Officer cannot proceed to make an assessment order. According to learned counsel for the appellant, the C.I.T. (Appeal) gave cogent reasons and held that there was no valid service of notice under Section 143(2) of the Act of 1961 whereas the Tribunal ignored the relevant provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee at all, what to say of in time. 7. Learned counsel for the appellant submitted that in view of the specific provision in the Act of 1961 itself, no help could be taken for the purpose of finding out how the service will be effected in the notice under the provision of the Act of 1961, whereas the Tribunal committed serious error of law in interpreting the law with the help of the provisions of General Clauses Act, 1897. It is also submitted that in General Clauses Act also, there is a reference of "Registered Post Service". It is submitted that in this case, the post was not sent by 'Registered post" but was sent by 'Speed-post", therefore, that service is not the service by "Registered post". It is also submitted that once the help of the presumption of Section 292BB was taken, it was for the Income Tax Department to prove the service of the notice and the said Department miserably failed to prove the service of notice. 8. Learned counsel for the Revenue tried to justify the reasons given in the impugned order of the Tribunal whereby it has been held that service of the notice upon assessee was valid. 9. We have considered the submissions of the parties on this issue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the assessee but he voluntarily by any reason, appeared in assessment or reassessment proceeding, he is precluded from taking objection with respect to the service in time. Here in this case, the authorities below have not relied upon this conduct of the assessee of merely taking part in assessment proceedings or reassessment proceedings, but specifically has set-up a case that notice was issued to the assessee by post and i.e.; through "Speed-post" and, therefore, all the three Authorities below proceeded to decide whether it is a valid service of the notice in fact or not ? Therefore, it is a question of fact which was under consideration of all the three Authorities below. 11. Be that as it may, according to learned counsel for the appellant, by virtue of the provisions of Section 292BB, the service cannot be treated to be valid service as there is no benefit of the presumption in favour of the Income Tax Department. In the facts of the case, we are of the considered opinion that the Revenue rightly did not rely upon any presumption under Section 292BB of the Act because the assessee raised objection before the completion of the assessment in the present case. 12. The nex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Against this evidence of Department, there is only word of mouth of the assessee that he did not receive the notice under Section 143(2) of the Act. In that fact situation, the Assessing Officer as well as the Tribunal were fully justified in accepting the contention of the Income Tax Department that notice was duly sent and since it was not returned back as undelivered, it was deemed to have been delivered to the assessee. 17. So far as dispute with respect to the interpretation of the "Post", "Registered Post" and "Speed Post" are concerned, the Tribunal has considered the issue in detail. We would like to quote the relevant paragraphs from the order of the Tribunal, which are as under :- 11. Section 27 of the General Clauses Act: Section 27 of the General Clauses Act, 1897, worded on the lines of section 26 of the Interpretation Act, 1889 (UK), deals with the "Meaning of service by post" and says that where arty Central Act or Regulation authorizes or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered Post, a letter containing the docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the object it seeks to achieve, i.e., to ensure safe delivery of the mail and nothing else. What has therefore to be seen is whether the context in which the term "registered post" has been used in section 27 would also include notice by "speed post". 13. Meaning of "Registered Post": The term "registered post" has not been statutorily defined. We have therefore to turn to its ordinary meaning. In common parlance, "registered" means recorded as in a register or book while "post" means an established system for collection and delivery of mail. The term "registered post" as used in section 27 of the General Clauses Act, 1897 has a generic meaning, would therefore embrace within itself the entire class of posts/mails under an established system in which their receipt and delivery are recorded with a view to assure safe delivery. The term "registered" in the context of post/mail has been defined at page 2528 of the Second Volume of "The New Shorter Oxford English Dictionary" (edited by Lesley Brown) (1993 Ed.) published by Clarendon Press, Oxford, as follows: "the term "registered" means "Recorded, officially set down, entered in a register, spec. (of a postal item) recorded at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the term "registered post" in section 27 of the General Clauses Act, 1897 takes within its sweep "speed post". In this view of the matter, notice by registered post would also cover the notice sent by speed post by the AO. 15. Principle of updating construction: It is however contended that that notice by speed post is not specifically included in section 27 of the General Clauses Act and hence the meaning of "registered post" as used therein cannot be extended to cover speed post. We have carefully considered the aforesaid submission. General Clauses Act was enacted in 1897 when speed post and courier services as they are available now were unknown at that time in this country. There was no established system of sending the mails by speed post at that time. All these methods of communication have come into vogue in this country in recent times. Age of the text is crucial to the interpretive process. The relevant issue therefore is whether the term "registered post" as used in section 27 of the said Act should be updated by adopting ambulatory approach so as to reflect changed conditions and human progress. 16. In 1793, Immanuel Kant, well-known German philosopher, demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 27 was simply to ensure safe delivery so that the statutory presumption created thereunder was consistent with the ground reality, i.e., a document sent by registered post would be received by the addressee. It is that objective purpose which needs to be taken into account while interpreting the phrase "registered post". The same objective purpose, which was sought to be realized through "registered post" at the time when the General Clauses Act was enacted in 1897, is equally, rather more effectively, realized now when the mails are sent through speed post or courier services. What was possible at that time to achieve through "registered post" is now possible to achieve as a result of changes taking place over time through "speed post" and "courier services". 18. In Victor Chandler International Ltd. v. Customs and Excise Commissioner [2000] 1 WLR 1297, the question in the context of section 9(1)(b) of the Beeting and Gaming Duties Act, 1981 (UK) was whether advertising by teletext was covered by the prohibition on advertising by offshore bookmakers. Adopting the ambulatory approach, it was held that the information sent from computers to teletext screens was a 'document' des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above book has been quoted with approval by a three Judge-Bench of this Court in State v. S.J. Chaudhary (1996 2 SCC 428): "It is presumed that Parliament intends the court to apply to on ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed inccordance with the need to treat it as current law. So if the notice envisaged in clause (b) of the proviso to Section 138 was transmitted by fax it would be compliance with the legal requirement." 20. At page 102 of "Maxwell on The Interpretation of Statutes" (Twelfth Ed,. by P. St. J. Langan), it is stated that the "language of the statute is generraicy extended to new things which were not known and could not have been contemplated when the Act was passed, when the Act deals with a genus and the thing which afterwards comes into existence was a species of it." Thus, where an Act of 1790 (which was deemed to be a public Act) exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was acknowledged by the sendee or not. In this connection, we may fruitfully refer to a few judgments of the Hon'ble Supreme Court. 23. In Har Charan Singh v. Shiv Rani AIR 1981 SC 1284, the Hon'ble Supreme Court has observed as under: "Sec. 27 of the General Clauses Act, 1897 deals with the topic- 'Meaning of - service by post' and says that where any Central Act or regulation authorizes or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and Such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady 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 [1992] I SCC 647; State of MP v. Hiralal [1996] 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu [2004] 8 SCC 774). It is, therefore, manifest that in view of the presumption available under s. 27 of the Act, it is not necessary to aver in the complaint under s. 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved." 26. The aforesaid judgments lay down in no uncertain terms that, in terms of section 27 of the General Clauses Act, unless and until the contrary is proved by the addressee, service of notice is deemed to be effected at the time at which the letter would have been delivered in the ordinary course of business when it is sent to the addressee at his address by registered post. Details given in the assessment order as also receipt of speed post make it clear that all the conditions stipulated by section 27 of the Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... help of details made available in the assessment order and also in the notice issued to him in the course of the assessment proceedings. Additionally, the AO has verified his records and found that the impugned notice was not received back in his office. In this view of the matter, the legal fiction by which the service of the impugned notice is deemed to be effected on the assessee stands on a much stronger footing. We are in full agreement with the reasons given by the Tribunal with respect to the interpretation given by the Tribunal on various issues decided by the Tribunal which we have quoted above. 18. In view of the reasons discussed above, we are of the considered opinion that the notice under Section 282 the Act of 1961, can be sent by post including "Ordinary post", "Registered post" as well as "Speed-post". The post is a generic word and its species are "Ordinary post", "Registered post", "Speed-post" and "Under Certificate of Posting" etc. Learned Tribunal rightly relied upon page 102 of "Maxwell on The Interpretation of Statutes" (Twelfts Ed. By P. St. J. Langan), wherein it has been stated that the "language of the statute is generally extended to new things which ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
