9911796707
TMI Blog2016 (2) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Member: The present appeal has been preferred by the assessee against the order dated 16.12.2010 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 1994-95. Earlier the matter was heard on 21.7.2015 and Sh. Milin K. Mehta (AR) appeared on behalf of the assessee. However the matter was re-fixed for hearing for 12.2.2016. On the said date, no one appeared on behalf of the assessee. The Ld. DR however made submissions on behalf of the revenue. The assessee in this appeal has taken the following grounds of appeal: 1. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of the Assessing Officer in again holding that the notice u/s 143(2) was served on the appellant within the statutory period despite the fact that the appellant had mentioned that no notice u/s 143(2) of the Act was served on it. It may be mentioned that the AO has held that the notice was served on the appellant within the statutory period without providing sufficient material to the appellant and purely on the basis of assumptions, surmises and conjectures. 2. The learned Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee at Vadodara ( Gujrat). Thereafter, the AO issued other notice dated 18.09.1996 in response to which the assessee's authorized representative appeared on 7.10.1996 and filed objection letter stating that the notice issued on 18.09.1996 was beyond the period of limitation and therefore, the assessment proceedings were required to be dropped. The AO did not accept the assessee's argument and intimated to the assessee that the earlier notice was issued on 14.11.1995 the photocopy of the receipt of registered post was also supplied to the assessee. The AO observed that the Department of Posts vide its letter dated 12.12.1996 had certified the delivery of letter containing the notice u/s.143(2) dispatched on 20.11.1995 from the Central Building Post Office. The assessee further filed objections stating that the receipt issued by the Department of Posts did not contain the address of the assessee. The AO did not accept the assessee's objections stating that Department of Post accepts the letters sent through RPAD which contain full address, however, acknowledgement/receipt issued by them contains only the name of the person and place. The objections raised by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) however rejected the pleas of the assessee and upheld the findings of the AO on this issue. The assessee has thus come in appeal before us. 8. We have considered the rival pleas raised by the parties. The facts, as emerging out from the above discussion are that the return was filed on 25.11.1994 with limitation period for issuing of notice ending on 30.11.1995. The case of the AO is that the first notice u/s 143 (2) was issued on 14.11.95 and the same was served upon the assessee by sending it through registered post on 20.11.1995 i.e. within the limitation period which was duly served on the assessee as per the letter of postal authorities dated 12.12. 96. The copy of the postal receipt for registered post has also been produced on the file. The AO has relied upon the provisions of section 27 of the General Clauses Act and has held that the notice was deemed to be served upon the assessee in due course. 9. On the other hand the contentions raised by the assessee are that no such presumption can be made regarding service of notice sent through registered post. The assessee had never received the alleged notice dated 14.11.95. The only notice received u/s 143(2) was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced as under: 282. Service of notice generally.- (1) The service of a notice or summon or requisition or order or any other communication under this Act (hereafter in this section referred to as communication ) may be made by delivering or transmitting a copy thereof, to the person therein named,- (a) by post or by such courier services as may be approved by the Board; or (b) in such manner as provided under the Code of Civil Procedure, 1908 (5 of 1908) for the purposes of service of summons; or (c) in the form of any electronic record as provided in Chapter IV of the Information Technology Act, 2000 (21 of 2000); or (d) by any other means of transmission of documents as provided by rules made by the Board in this behalf. (2) The Board may make rules providing for the addresses (including the address for electronic mail or electronic mail message) to which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named. Explanation.-For the purposes of this section, the expressions electronic mail and electronic mail message shall have the meanings as assigned to them in Explanation to sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of summons. 13. The Hon ble Delhi High Court after analysing the said provisions of rule 19A held that if the notice has not been received back unserved within the period of thirty days of its issuance, under these circumstances, it has to be held that the notice has been duly served upon the assessee. However, as noted above, the said Rule 19A since has been omitted vide CPC (Amendment)Act 1999 w.e.f.1.7.2002; and subsequently an amendment was brought to Order V rule 9 CPC whereby the Rule 9 was substituted vide CPC(Amendment) Act 2002 w.e.f 1.7.2002 and almost similar provisions to rule 19A were brought into existence w.e.f. the same date i.e.1.7.2002, which read as under: Order V, Rule 9 Delivery of summons by Court.- (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll prepare a panel of courier agencies for the purposes of sub-rule (1). 14. A perusal of the above reproduced Rule 19A since omitted, and subsequently substituted Rule 9 reveals that both are identically worded and being applicable in relation to service of summons, where the defendant resides with in the jurisdiction of the court issuing the summons. However in the case of the assessee, the notice dated 14.11.95 was sent on the address given by the assessee of its office at Baroda (Gujrat) which is an out station and not with in the jurisidiction of the assessessing officer at Mumbai.The said rules are therefore not applicable to the case of the assessee. 15. Now we discuss the relevant provisions of CPC in relation to service of summons where the defendant resides within jurisdiction of another court. Order V Rule 21. Service of summons where defendant resides within jurisdiction of another court.- A summons may be sent by the court by which it is issued, whether within or without the State, either by one of its officers or by post or by such courier service as may be approved by the High Court, by fax message or by electronic mail service or by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peared and denied that the packet had ever been delivered to him by the postal authorities. 17. Now coming to the facts of the present case, we may point out here that there appears to be some doubt whether the notice was at all sent to the assesse because, as observed above, the receipt showing that an envelope was sent by registered post merely contained the name of the assessee without its address. Consequently, it is quite possible that the notice may have been sent to the assessee at some wrong or even some incomplete address. A perusal of the copy of the alleged notice dated 14.11.95 reveals that there is a cutting/alteration in the address written of the assessee on the said notice. Further a perusal of the letter of the postal authorities dated 12.12.96 reveals that it has been mentioned therein that the RL No. 563 dated 20.11.1995 was delivered to the addressee, however no name or address of the addressee has been mentioned in the said letter. So far so, even the date of delivery of the said letter has not been mentioned. The assessee has taken a specific objection that no such Regd. Letter has ever been received by it. Under these circumstances, the burden was upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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