9911796707
TMI Blog1990 (8) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. It was contended that the order under appeal was served upon the assessee on 20-5-1988 and that the appeal was duly filed on 20-6-1988 since 18th and 19th June, 1988 were holidays being Saturday and Sunday. Thus, according to the transferee, the appeal was filed within 30 days from the date of the service of the order of the Competent Authority. It was further stated in this reply that the copy of the order passed u/s 269F(6) was never served upon the transferee. It was on its request that a certified copy of the order appealed against was served upon the transferee on 20-5-1988. 3. We have heard the learned authorised representatives of the parties on the question whether the appeal filed by the transferee was within time or was barred by limitation. Here it may be pointed out that according to the Department a copy of the order of the Competent Authority passed u/s 269F(6) was served upon the transferee on 11-12-1986 and, therefore, the appeal was clearly barred by limitation. 4. The learned counsel for the assessee submitted before us that a certified copy of the order of the Competent Authority was delivered to Shri Brij Mohan Singh, one of the partners of the tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Clauses Act. Reliance has been placed on the decision of the Calcutta High Court in the case of CIT v. Malchand Surana [1955] 28 ITR 684 in support of the contention that even if the copy of the notice had been delivered by the postman to a person who had no authority to receive the same, still the presumption would be that the copy had been received by the addressee. 7. We have considered the rival submissions made on behalf of the parties. Section 282 of the IT Act, 1961 lays down that a notice or the requisition under this Act may be served on the person therein named either by post or as if it were a summon issued by a Court under the Code of Civil Procedure. A copy of the order passed u/s 269F(6) is required to be served on the transferor and the transferee as required u/s 269F(8). Chapter XX-A does not separately provide for mode of service of an order passed u/s 269F(6). General provisions contained in Section 282 provide for service of notices and requisitions. In our opinion, this Section would also apply to orders which are required to be served under the provisions contained in Chapter XX-A. The Law, therefore, provide that a copy of the order u/s 269F(6) is to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered cover containing a copy of the order of the Competent Authority was delivered at the proper address of the transferee. It was received by Pardeep Kumar who had no authority to receive such an order on behalf of the assessee. In the caw of Malchand Surana it has been held by their Lordships of the Calcutta High Court that the mere fact that the physical delivery of the notice was made to a person other than the addressee and to a person who had no authority to receive the letter on the addressee's behalf, could not be sufficient to prove that there had been no proper service. It was further held that the presumption that a proper service had been effected would still be there and would not be rebutted by the mere fact that the actual service had been effected on a different person and the acknowledgement of receipt was by him.The facts of the case in hand are similar to the facts of the case decided by the Calcutta High Court. Thus, in spite of the fact that copy of the order of the Competent Authority was received by Pardeep Kumar who had no authority to receive the copy, the presumption that a proper service had been effected on the addressee still remains unrebutted. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a copy of the order was not served on the transferee. 12. In view of the aforesaid discussion we hold that a copy of the order passed u/s 269F(6) was served upon the transferee on 11-12-86. In view of Section 269G(1), the present appeal is, therefore, time barred by 521 days as reported by the office. In this view of the matter the appeal has to be dismissed as time barred. However, in order to make our order complete we proceed to dispose of the remaining submissions made before us on behalf of the transferee. 13. It would be proper to mention at this stage that according to the Competent Authority the fair market value of the transferred property was Rs. 13,45,800. This value was based on the report of the Valuation Officer. In the grounds of appeal the transferee has also assailed the fair market value of the transferred property as determined by the Competent Authority. The learned counsel for the transferee, however, did not make any submissions before us on the grounds assailing the order of the Competent Authority determining the fair market value at Rs. 13,45,800. The only submission made before us regarding the merits of the appeal on behalf of the assessee was that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on reliance was placed on the decision of the Supreme Court in the case of State Bank of Travancore v. CIT [1986] 158 ITR 102/24 Taxman 337. It was further submitted that the Board's Circular No. 455 and Instruction No. 1793 dated 11-8-1988 were not applicable in this case. 16. The aforesaid decision of the Punjab Haryana High Court cited on behalf of the transferee, no doubt, lays down the proposition that an appeal is continuation of original proceedings and rehearing of the matter. In Raj Narain Tewari's case it has been held by the Allahabad High Court that an Appellate Court or authority has the same power as a Court or authority of the first instance. The propositions laid down in these authorities are not in dispute. The question is whether the aforesaid circular and the instruction issued by the Board can be applied to the facts of the instant case. It has to be borne is mind that in the present case, the order u/s 269F(6) was passed on 2-12-1986. The Board's circular No. 455 dated 16-5-1986 was applicable to cases where apparent consideration of any immovable properties was Rs. 5 lakhs or less. This circular is, therefore, clearly inapplicable in the instant case. Here ..... X X X X Extracts X X X X X X X X Extracts X X X X
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