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TMI Blog2006 (11) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... sment Order was eventually framed by the Assessing Officer (AO) on 23.2.2000 at Rs.58,36,860/-. Thus, notices served on the Appellant after 31.8.1998 would be devoid of legal efficacy by virtue of this proviso to the said sub-section. Undisputedly, the Notice issued by the AO was sent to the Assessee on 25.8.1998 by Registered Post. The Assessee asserts that the Notice was served on him on 1.9.1998, i.e. the day immediately after the expiry of the period envisaged by the sub-section. The AO had asked the Assessee to produce documentary evidence that the Notice in question was indeed delivered only on 1.9.1998, but the Appellant failed to furnish any such evidence. This position has been admitted before us; it has been candidly stated that the Assessee had been "foolish" not to retain the envelope containing the said Notice. The Commissioner of Income-Tax (Appeals) ["the CIT (A")] had initially remanded the matter back to the AO to verify the actual date of service from the Postal Authorities. It appears that in response to the action taken by the AO pursuant to the Reminder, the Postal Authorities have stated that the records pertaining to the registered letters for the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l cases. Mr. Aggarwal has drawn our attention to the fact that ITA No. 640/2006 titled Director of Income Tax vs. Gordhan Thaddani had been summarily dismissed by us on 16.10.2006. However, in that case the ITAT had returned a finding of fact that the Department had failed to establish the service of any Notice under Section 143(2) on the Assessee within the prescribed period. Even though the dismissal of an Appeal under Section 268 cannot be construed as a precedent or Authority on a proposition of law the facts in Thaddani's case are totally dissimilar to the facts of the present case. 5. Mr. Aggarwal has relied on the observations of the Supreme Court in Mehta Parikh and Co. vs. Commissioner of Income-Tax, Bombay [1956] 30 ITR 181. Their Lordships had noted that beyond calculation of figures, no further scrutiny was made by the Income-Tax Officer or the Appellate Assistant Commissioner with regard to the entries in the Cash Book of the Appellants, the veracity of which was not challenged. No documents or vouchers in relation to the entries had been called for, nor had the presence of the three Affidavits of the Deponents been taken into consideration, and the Deponents had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such situations. Even apart from Section 27 of the General Clauses Act, Section 114 of the Indian Evidence Act, 1872 (hereinafter referred to as 'Evidence Act') permits the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in relation to the facts of the particular case. The Notices under Section 143(2) were undisputedly dispatched on 25.8.1998; the Assessee has acquiesced to the statement that this envelope had reached Civil Lines Post Office on the next day itself. 25.8.1998 fell on a Tuesday. Despite the assertion that the envelope had reached the Civil Lines Post Office on 26.8.1998, it would be fair for the Court to presume that a local letter would reach the Addressee within three days, i.e. Friday 28.8.1998. 7. We will now briefly consider the Assessee's conduct. The Notice conveyed to the Assessee that a hearing had been fixed by the AO on 31.8.1998. If the Notice had, in fact, been served on the Assessee on 1.9.1998, it is unnatural that no enquiries or correspondence would have been immediately made to the AO stating that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... best and complete evidence on the conundrum, has been destroyed or lost. Mr. Aggarwal has contended that the Assessee was not duty-bound to appear before the AO since the Notice was received beyond the period of limitation. This assumes that the Assessee was aware of the legal provisions on that date or soon thereafter presumably after taking legal advice. In both contingencies it would have been normal for him to address a communication to the AO forthwith or at least within a month to the effect that proposed proceedings had been rendered legally inefficacious. The Assessee could also have obtained a Certificate from the Postal Department since he was fully aware of the importance of the date of delivery. The Assessee has hopelessly failed to discharge the burden which shifted to him immediately on his assertion that he had received the Notice on a particular date. 9. We have gone threadbare into the factual matrix because of the plenitude of cases which come before us on this delicate question. While there would be no justification for enlarging the period of limitation prescribed by the statute itself, we should also not lose sight of the fact that the disadvantage or d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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