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TMI Blog2022 (8) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... mined as is evident from para No. (VI) at page 15 of the order dated 29.12.2011 rendering the addition so made by the A.O. as approved by the learned CIT(A) illegal and liable to be deleted. 2. Because the learned A.O. and the CIT(A), Lucknow have erred in wrongly recording, contrary to the factual position that Bhagwant Singh son of Pargat Singh r/o. 244/28, Yahiyaganj, Lucknow who had given a donation of Rs. 2,50,000/- had failed to appear in as much as he had apparently no notice in as much as the other family members including his own real elder brother and father had all appeared as is evident from a perusal of serial No. 16 of the order dated 29.12.2011 and as such the presumption drawn that the absence of Bhagwant Singh was deliberate is palpably erroneous and unsustainable. 4. At the outset, the Ld. Counsel for the assessee has contended that he wishes to withdraw Ground No. 2 originally raised in the Grounds of appeal as well as the Additional Grounds. Therefore, Ground No. 2 as well as the Additional Grounds raised by the assessee are rejected as withdrawn. Now we are left with only Ground No. 1, challenging the order of the Ld. CIT(A) in sustaining the addition of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above facts, the matter be restored to the file of the Assessing Officer for providing another opportunity to the assessee. 7. The Ld. D.R., on the other hand, placing reliance on the orders of the authorities below, submitted that even during the course of the set aside proceedings, the assessee could neither furnish the correct addresses of the donors, nor produce them before the Assessing Officer for cross-examination; and that therefore, no interference is called for in the order of the Ld. CIT(A), who has rightly confirmed the order of the Assessing Officer. 8. Heard. It is evident from the Remand Report sent by the Assessing Officer to the Ld. CIT(A), that the Assessing Officer did not issue any fresh summons to the thirteen alleged donors in the remand proceedings, despite the assessee having provided their addresses before the Ld. CIT(A), notwithstanding the fact that the service of notice on these persons, at the addresses provided by the assessee in the original assessment proceedings, could not be effected at that time. 9. Before us, from the assessee's side, an affidavit has been filed, wherein, it has, inter alia, been stated that: "6. That the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and harassment by the Assessing Officer and were also made to wait outside the office of the Assessing Officer throughout the day. In view of the extreme harassment, which was duly communicated to the rest of the persons, even those who could not be formally served but derived knowledge, refused to appear before the Assessing Officer to avoid indignities and harassment. They have also refused to respond to any summons issued by the Income Tax Department in view of the harassment meted out to the donors and have declined to appear in person. 13. That in view of the submissions made above the Assessing Officer was under an obligation to ensure that the postal authorities had taken due steps for service of summons on those who had failed to appear and having failed to do so, it was imperative to have carried out the necessary exercise upon confirmation of the addresses to be correct. However, the same not having been done has resulted in grave miscarriage of justice. In the circumstances the appeal is liable to be allowed." 10. In this regard, it is seen that in the original assessment proceedings, the summons issued by the Assessing Officer to the thirteen donors of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed Post, it is presumed that the delivery of the letter has been effected. It would be the assessee's onus to prove otherwise. In case the letter comes back with the postal remark "refused", it would have the very same effect of a valid service. On the contrary, if the addressee of the letter denies such refusal on oath, the postman would have to be examined. Per contra, in case the letter is returned with the postal remark "left", or "not found", or "unknown", there would be no case for presumption of valid service. It goes without saying, however, that the presumption under section 27 of the General Clauses Act, 1897, is a rebuttable one. Where the letter/notice is not served on the addressee, the presumption that the usual course of the post was followed through evidence of the postman, would not be available, unless it specifically highlights the reason for the non-service of the notice, why it was returned and what the remarks of the postman were. In the absence of such postal remark, specific in nature, having been made available to the addressor, drawing adverse inference against them, would clearly be violative of the principles of natural justice. 14. The Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trength by filing the Khataunies of respective donors. Names and addresses given in Khataunies cannot be denied..............." 17. The Ld. CIT(A), it is seen, has nowhere considered the assessee's contentions. No findings have been recorded on these submissions. The Assessing Officer having not summoned the thirteen donors of the assessee during the Remand proceedings, from the addresses provided by the assessee before the Ld. CIT(A), the Assessing Officer's Remand Report ought not to have affected the Ld. CIT(A)'s decision adversely to the assessee, particularly when the Ld. CIT(A) too did not deem it proper, for the reasons not evincible from the order under appeal, to so much so as to have taken note of the contentions raised by the assessee in his Rebuttal to the Remand Report, much less deal with them in the impugned order. Rather, the Ld. CIT(A) ought to have directed the Assessing Officer to summon the persons, or to have himself summoned them. Au contraire, the Ld. CIT(A) wrongly endorsed the Assessing Officer's unsustainable finding that the assessee had not provided fresh addresses. 18. Even otherwise, the assessee cannot be said to have gained anything ..... X X X X Extracts X X X X X X X X Extracts X X X X
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