R P SAHA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference by the Tribunal at the instance of the assessee under s. 66(1) of the IT Act, 1922. The facts of the case are that the assessee in response to two notices submitted a return of his income for the year of assessment 1944-45, and another return in respect of asst. yr. 1945-46. In the forms of return submitted by the assessee his address was stated as Khanpur, Narayanganj. Income-tax was duly assessed by the ITO and two notices of demand were sent by the IT Department to the assessee by registered post at the address given by him in his return. The notice of demand relating to the year 1944-45 was received at Khanpur by one M. Bhaumick who signed for the assessee on the 14th Oct., 1949. The other notice which was also served at Khanpur was received by B. Banerjee on the 11th Nov., 1949, who also signed for the assessee. The assessee applied for copies of the orders on the 1st of Dec., 1949, and received them on the 15th June, 1950, and he filed his petition of appeal to the Asstt. CIT on the 5th July, 1950. On the 30th August, 1950, the petition of appeal was put up to the AAC and was ordered to be registered and the ITO was called upon to report on the petition of appeal by the 20th Sept., 1950. What happened on the 20th Sept., 1950, we do not know but the second order recorded is "Issue notice fixing 5th March 1951/10th March,1951, for hearing at Dacca subject to admission of appeal." An objection appears to have been taken to the appeals on the ground that they were out of time and the nature of the objection of the Department appears from an order, dt. 6th April, 1951, of the AAC, to be that the office had reported that no application was made by the appellant for copies of the orders and therefore the appeals were out of time. In order No. 8, dt. 6th April, 1951, aforesaid, the AAC states :

(2.) IT appears that at the second hearing which was on the 30th July, 1951, elaborate arguments were heard by the Asstt. CIT on the question of limitation involving various questions of law including that of agency. In the petition of appeal, the assessee did not ask for condonation of any delay in filing the appeal, but stated that he had received the notice of demand on the 28th of Nov., 1949, and excluding the time taken in obtaining the copies of the orders, to which he would be entitled under s. 67A of the IT Act, his appeal was in time. The question, therefore, canvassed before the Asstt. CIT was whether limitation in the circumstances of the case was to run from the date on which M. Bhaumick and B. Bannerjee received the notices on behalf of the assessee or the date on which the assessee himself received the notices. The appellant at the hearing denied that Bhaumick and Bannerjee or either of them was his agent duly authorised to receive postal articles on his behalf. The assessee also denied that he had any place of business at Khanpur, Narayanganj, but there was an office of a trust known as Kumudini Welfare Trust of Bengal Ltd. of which he was the founder and a director. These denials by the assessee were made by his authorised representative, who is a registered accountant and was qualified under s. 61(1) of the Act to act as such and appeared with an advocate. No evidence of any kind was adduced on the sworn testimony of any one personally acquainted with those facts or an affidavit by any such person. On the above facts two questions with regard to the two cases relating to the two years of assessment have been referred for the decision of this Court, namely, with regard to the asst. yr. 1944-45 :

(3.) IT is only when the second mode of serving the notice under s. 63(1) is adopted, i.e., when it is served by way of a summons, that the sender of the Department has to prove that the service has been effected in accordance with the provisions of O. V, r. 12, of the CPC. In the present case the notices having been sent under registered post, the alternative provisions of s. 63(1) which provides for service of notice by way of summons does not come into play and the part of the first question referred to us viz., the qualification r/w O V, r. 12, of the CPC is redundant to the facts of the present case in the view of s. 63(1) which I have stated above. As no rebutting evidence has been given, the presumption in favour of due service stands and the date of service on Mr. Bhaumick in the one case and B. Bannerjee in the other case will be the dates of service of the notices on the assessee. IT was, however, argued on behalf of the assessee that even though no evidence was adduced by his client in this behalf, the very fact that the notice were served not on the assessee himself but on two other persons, namely, Bhaumick and Bannerjee itself is sufficient to rebut the presumption of service under s. 27 of the General Clauses Act. In reply, the learned Advocate for the IT authorities has relied on the decision of the Privy Council in the case of Harihar Banerji vs. Ramshashi Roy (1919) ILR 46 Cal 458 where it was held that :