1977 (8) TMI 26

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..... bad, has referred the following question for our consideration : " Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that the assessee's failure to enclose the demand notice with the memorandum of appeal in Form No. 35, prescribed under rule 45 of Income-tax Rules, 1962, was a mere irregularity which did not render the appeal invalid ? " The fact .....

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..... ing to the assessee, was obtained on February 23, 1969. It was further alleged that although the copy of the demand notice was received on April 8, 1969, it was lost, whereupon he applied for a fresh copy but the copy was never issued. The Tribunal found that the assessment order and the demand notice were served on one Sri R. K. Rastogi on March 7, 1967, but Rastogi was an employee and not an aut .....

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..... y of the assessment order and demand notice. It also found that the copies of the assessment order and demand notice were issued to the assessee on February 23, 1969, and April 8, 1969. As regards failure of the assessee to enclose the demand notice in the appeal memo it was held that inasmuch as neither section 249 nor rule 45 of the Income-tax Rules necessitate the demand notice being enclosed t .....

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..... ned-- (a) in the case of an individual, by the individual himself ; where the individual is absent from India, by the individual concerned or by some person duly authorised by him in this behalf ; and where the individual is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf ; (b) in the case of a Hindu undivided family .....

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..... and notice along with the memo of appeal. The assessee may enclose the demand notice in order to demonstrate that the appeal is within time; but failure to do so could not render the appeal beyond limitation, if it is otherwise within time. We are fortified in the view that we take by the decision of the Supreme Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (J), Sales-tax .....

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