TaxTMI 
TaxTMI 
2012 (9) TMI 197
X X X X Extracts X X X X
X X X X Extracts X X X X
.... order dated 11.06.2007, the assessee's appeal was allowed for statistical purposes on this issue. The findings of the Tribunal in para 7 is reproduced in the impugned order, which reads as under :- "7. The said notice is claimed to have been sent by speed post along with number of other assessees totaling to 13 and an acknowledgement dated 27.03.2004 has been obtained from Sanjay Place Post Office, Agra. Against the assessee's name, Shri Shyam Lal Agarwal, Agra, receipt no. 112 has been mentioned. When the assessee's counsel was confronted with the acknowledgement, he contends that this speed post booking list does not contain the address of the assessee. It, therefore, cannot be inferred that the ministerial staff of the Assessing Offi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... ld. CIT(A) denying the service of notice u/s. 148 of the Act. The matter was referred to the AO who has filed his report dated 27.03.2010, which is also reproduced in the impugned order, in which the AO affirmed that the notice u/s. 148 dated 26.03.2004 was issued to the assessee on 27.03.2004 through speed post. It was submitted that the contention of the assessee is incorrect because the undelivered envelop was not received back from the postal department. Enquiry was made with the Tax Assistant, who has reported that undelivered envelop was not received back in the office. The letter was sent to the Post Master, Sanjay Place, Agra, who has shown his inability to give any information in this regard. The AO, therefore, requested that the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ough, it cannot be conclusively said that the envelop was properly addressed as no office copy of the envelope is retained, however, the preponderance of probability is that the letter containing the notice u/s. 148 was served on the appellant in the ordinary course of post. 6. In the result, appeal is dismissed." 4. The ld. counsel for the assessee reiterated the submissions made before the ld. CIT(A) and submitted that the affidavit was filed before the ld. CIT(A) dated 13.11.2007 denying the service of notice u/s. 148. He has also submitted that the order of the Tribunal is dated 15.06.2007, through which the matter was remanded to the file of ld. CIT(A), but no enquiry has been made as directed by the Tribunal. He has also relied ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the notice u/s. 148 was issued to the assessee on 27.03.2004 through speed post and the same did not return back to the Revenue Department. The Tax Assistant gave report to the same effect that undelivered envelop was not received back from postal department. The postal authorities have shown their inability to give further information in this regard. It is, therefore, admitted fact that proper notice u/s. 148 was issued at the correct address of the assessee and was also dispatched through speed post to the assessee. The speed post cover containing the notice u/s. 148 did not return back to the Revenue Department. It is, therefore, clear that the notice u/s. 148 was properly issued to the assessee. 6.1 Hon'ble Delhi High court in the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Madhsy Flms P. Ltd., 301 ITR 69 held - "Held, allowing the appeal, that there was nothing on record to show that the notice dated October 23, 2002 dispatched on October 25, 2002, by speed post was undelivered or received back. Under the normal circumstances, a presumption would lie that the notice had reached the assessee within 2 or 3 days. Though the presumption under the section is rebuttable, in the absence of proof to the contrary, the presumption of proper service or effective service of notice would arise. Since the envelope containing the notice had not been received back by the Department, there was a presumption that it had reached the assessee which was not rebutted by the assessee by filing an affidavit. Therefore, notic....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... before the Assessing Officer on March 7, 2000. The assessee had come to know of the notice dated October 9, 1998, because it raised a plea before the Commissioner (Appeals) that it was not served with any notice within the prescribed time. Despite this, no objection was taken before the Assessing Officer and even before the Commissioner (Appeals) the assessee did not file any affidavit to rebut the statutory presumption of service. The affidavit denying service of notice was filed by the assessee only before the Tribunal. There was no proper rebuttal of the presumption of valid service of notice. The notice dated October 9, 1998, had been validly served." 6.4 The assessee relied upon the decision in the case of Hotline International Pvt....