AI Drafter 
TaxTMI 
TaxTMI 
2014 (12) TMI 131
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....per of relative of the appellant. 4. He erred in not calling for original records of assessment proceeding for his verification. 5. He failed to appreciate the facts that the order passed by the A.O. was bad in law since, notice v/s 143(2) was not issued on the appellant within the statutory period of one year i.e. before 31.10.2002." 2. Facts in brief:- The relevant facts, qua the issue raised in the aforesaid grounds, are that the assessee is an individual who had filed his return of income on 31st October 2001, at an income of Rs. 5,85,800. As per the noting appearing in Para-2/Page-1, of the assessment order, the assessee's case was selected for scrutiny and accordingly notice under section 143(2) dated 29th October 2002, was served upon the assessee on 31st October 2002. Thereafter, the notice under section 142(1) dated 6th December 2002 was issued. In response to the notices, the assessee was represented by his authorised representative from time to time and furnished the details for the purpose of scrutiny assessment. The assessee is an electrical engineer carrying on the business in the name and style "Livetech" from his resident. As against the returned income, th....
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....ostal authority to the assessee. The assessee, vide letter dated 18th February 2012, submitted that the speed post was dispatched on 30th October 2002, however, the signature appearing on the acknowledgement of receipt on 31st October 2002, was not that of the assessee. It was submitted that under the provision of section 282, the service of notice should be made on the person who has been named therein and not to any other person. Therefore, it cannot be held that the notice was property served upon the assessee in accordance with law. It was further contended that the notice under section 143(2) was actually received by the assessee on 15th November 2002, by some sweeper of the assessee's relative who had given the notice to the assessee and not on 31st October 2002. In support of the said legal submission, the assessee has relied upon the following case laws. i) Nulon India Ltd. v/s ITO, [2010] 323 ITR 681 (Del.); ii) CIT v/s P.L. Gandhi, [2009] 315 ITR 110 (Mad.); iii) CIT v/s Avi Oil India Pvt. Ltd. [2010] 323 ITR 242 (P&H); iv) CIT v/s Silver Streak Trading Pvt. Ltd. [2010] 326 ITR 418 (Del.); v) Jayanthi Talkies Distributors v/s CIT, [197] 120 ITR 576 (Del.); ....
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....ord by the learned Commissioner (Appeals) is that there is only one issuance of notice under section 143(2) which is dated 29th October 2002, which was sent through speed post and no further notice under section 143(2) was issued by the Assessing Officer. The contention of the assessee that it has received the notice on 15th November 2002, is either factual incorrect or the same notice was in the knowledge and possession of the assessee. No evidence has been produced by the assessee that the notice under section 143(2) was served upon the assessee on 15th November 2002. After having coming to this conclusion, the learned Commissioner (Appeals) distinguished the decisions relied upon by the assessee and heavily relied upon the decision of the Hon'ble Delhi High Court in Yanu Industries Ltd., [2008] 306 ITR 309 (Del.), wherein on similar set of facts, the High Court has held that notice has been served within the limitation period. Similar reliance was placed on the following decisions also by the learned Commissioner (Appeals). i) Ashok Arora, 35 DTR 50 (Del.); ii) Mrs. Illa Pal Chowdhary & Ors, 82 ITR 936 (Cal.); iii) Jai Prakash Singh, 219 ITR 737 (SC); iv) Ram narain ....
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....(2) x x x x x Provided that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return as furnished." 11. Thus, the notice under section 143(2) is mandatorily required to be served upon the assessee within twelve months from the end of the month in which return is filed. Now the issue that notice has to be served within the statutory time limit upon the assessee, is no longer res integra and law is quite settled on this score. As brought on record, the notice under section 143(2) dated 29th October 2002, was sent through speed post duly addressed in the name of the assessee and sent on the address which was provided in the return of income on 30th October 2002. This is evident from the finding of the learned Commissioner (Appeals) and also the postal receipt placed in the paper book at Page-7, which shows that the speed post was dispatched on 30th October 2002 at 11:00 AM. The said post was duly delivered at the address mentioned therein on 31st October 2002, which is evident from the acknowledgement of the postal department placed on record. The assessee's contention is two fold first, that....
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.... in the ordinary course of post." 13. On a bare perusal of the aforesaid provision, it is evident that it creates a legal fiction by which the service of a notice is deemed to be effected, once the said notice is properly addressed, pre-paid and posted by registered post (here in this case speed post which is akin to registered post). The said legal fiction can be rebutted only by proving the contrary that the said post did not reach on the same address or for the purpose of present case, on some different date. The legal fiction in section 27 of General Clauses Act, follows automatically on the fulfillment of the condition mentioned in the said section in the matter relating to service of post. Here, it is not the case of the assessee that the envelop of speed post containing the said notice was not properly addressed or pre-paid or was not received on 31st October 2002. 14. Though the presumption raised in section 27 of the General Clauses Act, is a rebuttable presumption, but in the present case, it is not in dispute that on 31st October 2012, the said post was delivered on the person's address whose name was mentioned therein that is it has been duly delivered in the name....
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....ad refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact "that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons." The aforesaid proviso to clause 5, clearly lays down the presumption that when the summon has been sent through post which has been properly addressed pre-paid and duly sent, then even if the acknowledgment have been lost or mislaid, it is deemed to have been served upon the person. This was also provided earlier in rule 19A, Order-V, which has been omitted w.e.f. 1st July 2002. 16. One other important fact which has been brought on record by the learned Commissioner (Appeals) to rebutt the assessee's claim is that no other notice under section 143(2), was sent by the Assessing Officer, which has b....