1932 (2) TMI 26 - HC - Income Tax

Valid service of notice under Income Tax Act based on minor son's acknowledgment as agent. Reputable presumption over conclusive.

In Re : L.C. DeSouza

The court determined that the delivery of a notice under Section 22(2) of the Income Tax Act to the assessee's minor son, acknowledged by him, constituted ... - Issues:Service of notice under Section 22(2) of the Income Tax Act via registered post acknowledged by the assessee's minor son, Compliance with notice requirements, Interpretation of Section 27 of the General Clauses Act in relation to service by post, Determining if the delivery of the notice to the assessee's son constituted valid service, Agency relationship between the minor son and the assessee for accepting the notice.Analysis:The judgment pertains to a reference under Section 66(2) of the Income Tax Act regarding the service of a notice under Section 22(2) on the assessee, Mr. L. C. DeSouza. The notice was sent via registered post but was acknowledged by the assessee's minor son, Mr. J. DeSouza. The issue raised was whether this acknowledgment by the minor son without stating the name of the addressee vitiated the service of the notice. The Commissioner of Income Tax sought clarification on this matter.The two contentions presented were whether the presumption raised by Section 27 of the General Clauses Act regarding service by post is reputable and whether the delivery of the notice to the minor son constituted valid service. The argument on behalf of the assessee emphasized reading Section 63 of the Income Tax Act along with Section 27 of the General Clauses Act to support a reputable presumption of service. Conversely, the Crown argued that the presumption is conclusive when the notice is properly posted, addressed, prepaid, and sent in a registered cover.The court analyzed Section 27 and concluded that the presumption of service through post is reputable unless the contrary is proved. Drawing an analogy with Section 4 of the Indian Evidence Act, the court highlighted that when the law presumes a fact, it should be regarded as proved unless disproved. The judgment illustrated a scenario where a conclusive presumption could lead to unjust outcomes, emphasizing the need for a reputable presumption rather than a conclusive one.Regarding the delivery of the notice to the minor son, the court examined the rules under the Post Office Act and the Postal Guide. It was established that the service of a notice would be valid if received by the addressee or their agent. In this case, the court determined that the minor son, Mr. J. DeSouza, could be considered an agent of his father for accepting the notice based on his age, intelligence, living arrangements, and past instances of receiving notices on behalf of the assessee.Ultimately, the court held that the delivery of the notice to the minor son constituted valid service, and the service of the notice in this case was deemed proper. The judgment directed the issuance of a copy of the decision to the Assistant Commissioner of Income Tax and ordered the assessee to bear the costs of the reference, including the fees of the Government Advocate.