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TMI Blog2014 (12) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... pen 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. - ITA no. 3446/Mum./2013 - - - Dated:- 22-8-2014 - SHRI D. KARUNAKARA RAO AND SHRI AMIT SHUKLA, JJ. For The Respondent : Shri R.N. Vasani For The Appellant : Shri Mohit Jain ORDER PER AMIT SHUKLA, J.M. The present appeal has been preferred by the assessee challenging the impugned order dated 22nd February 2013, passed by the learned Commissioner (Appeals) XXXII, Mumbai, for the quantum of assessment passed under section 143(3), of the Income Tax Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 31st October 2002. The learned Commissioner (Appeals), vide order dated 21st April 2005, had confirmed most of the addition / disallowance, however, did not adjudicate the issue of validity of service of notice under section 143(2) within the statutory time. 3. In the second appeal filed before the Tribunal besides agitating the grounds on merits, the assessee also raised the ground that the learned Commissioner (Appeals) has erred in not adjudicated the ground relating to validity of the assessment and service of notice under section 143(2). The Tribunal vide order dated 26th June 2008, remanded back the matter to the file of the learned Commissioner (Appeals) to decide the ground pertaining to validity of the assessment on the ground of service of notice under section 143(2) only. Thus, in the second round, the learned Commissioner (Appeals) was besized with the adjudication of service of notice under section 143(2). 4. In the set aside proceedings, the learned Commissioner (Appeals) required the Assessing Officer to furnish the proof of service of notice under section 143(2) and the entire records along with the remand report. The Assessing Officer in the remand report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime had not given any intimation regarding any change of address and the notice was sent through speed post, the service of which has duly been acknowledged by the postal department which is an independent Government agency. The notice was dispatched by speed post on 30th October 2002, at 11:00 AM. The said post bears the UID number of the receipt ED007695333IN . The postal authorities have placed the acknowledgement with signature and date as 31st October 2002, as a proof of service on the mentioned address. On this basis, the learned Commissioner (Appeals) held that notice was properly served on the mentioned address of the assessee and concluded that notice was properly served on 31st October 2002, which was within the limitation date as provided in proviso to section 143(2). Regarding the assessee s plea that the said signature in acknowledgement does not belong to the assessee, the learned Commissioner (Appeals) held that the said notice has been served by the Central Government agency on the correct address, then it is not the duty of the Assessing Officer to ensure that the letter is served by the postman personally on the assessee or not. When the Assessing Officer has cat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice has to be served upon the person named therein. In this case, the notice was not served upon the assessee and the acknowledgement receiving the post was not signed by the assessee. Thus, it cannot be held that the notice under section 143(2) was served upon the assessee within the statutory period of 12 months, as provided in proviso to section 143(2). In support of his contention, he has relied upon the following case laws. i) Nulon India Ltd. v/s ITO, [2010] 323 ITR 681 (Del.); ii) CIT v/s P.L. Gandhi, [2009] 315 ITR 110 (Mad.); iii) CIT v/s Avi Oil India Pvt. Ltd., [2010] 323 ITR 242 (P H); iv) CIT v/s Silver Streak Trading Pvt. Ltd., [2010] 326 ITR 418 v) CIT v/s Jayanthi Talkies Distri. v/s CIT, [1979] 120 ITR 576 vi) Umashankar Mishra v/s CIT, [1982] 136 ITR 330 (MP) vii) Dina Nath v/s CIT, [1993] 204 ITR 667 (J K) viii) CIT V/s Vishnu Co. Pvt. Ltd., [2009] 319 ITR 151 (Del.) ix) OIP Sensor Systems India Liaison Office v/s ADIT, (I.T), [2014] Taxman.com 509 (Del.)(Trib.); x) CIT v/s Gita Rani Ghosh, 36 Taxman.com 322 (Guwahati) 9. The learned Departmental Representative, on the other hand, strongly relied upon the above finding rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to 1st October 2009, read as under: 282. Service of notice generally (1) A notice or requisition under this Act may be served on the person therein named either by post or as if it were a summons issued by a Court under the Code of Civil Procedure, 1908 (5 of 1908). The aforesaid provision provides that the notice may be served on the person named therein firstly, either by post or secondly, in the manner provided in Order V of CPC, 1908. In the present case, the notice has been served through post. The said section clearly envisages that one of the mode for service of notice is by post upon a person whose name is mentioned in the notice. Once any document or notice or summon is required to be served by post, then the service shall be deemed to be effected, if the post have been properly addressed with the requisite stamp and delivered by the postal authority on the given address of the person named therein. In such a case, there is presumption under the law that it has been served upon the assessee. This presumption of service has been provided in section 27 of the General Clauses Act, 1897, which reads as under: 27 Meaning of service by post. Where any [Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 said post was received by the some other person. The presumption in law in such a case is that it has been served upon the assessee. 15. Further, even in the Code of Civil Procedure, 1908, Order V, Rule 9, there is a presumption of delivery of summon sent through post if the summon has been properly addressed, pre paid and duly sent by registered post acknowledgment. This has been provided in clause 3 to 5 of Rule 9, Order V, which has been brought w.e.f. 1st July 2002. (3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied upon by the learned Commissioner (Appeals). 17. The decision relied upon by the assessee are not on such situation, because in most of the cases, the notices sent through speed post was served either on some different address other than mentioned in the return of income or was served beyond the period of limitation. In none of these decisions the Courts have held that even when the notices have been served by speed post on the correct address and addressed to the person to whom notice is meant, within the statutory time limit, then also it is an invalid service, if the concerned person denies the receiving of the said notice in person. Thus, in view of our discussion and on the basis of material placed on record, we hold that the notice under section 143(3) was validely served upon the assessee with the statutory time limit and accordingly, we affirm the finding of the learned Commissioner (Appeals) which is based on correct appreciation of facts and principles of law. The grounds raised by the assessee are thus dismissed. 18. In the result, assessee s appeal is dismissed. Order pronounced in the open Court on 22nd August 2014 - - TaxTMI - TMITax - Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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