TaxTMI 
TaxTMI 
2016 (2) TMI 830
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....ed on the appellant within the statutory period despite the fact that the appellant had mentioned that no notice u/s 143(2) of the Act was served on it. It may be mentioned that the AO has held that the notice was served on the appellant within the statutory period without providing sufficient material to the appellant and purely on the basis of assumptions, surmises and conjectures. 2. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of the Assessing Officer in again disallowing loss incurred in the business of transportation of goods and assessing Rs. 72,000/- as income of the appellant applying provision of section 44AE of the Act and thus making the addition of Rs. 2,48,392/- on this count. The learned Commissioner of Income Tax (Appeals) as well as the AO failed to appreciate the fact that the appellant has been maintaining all the books of accounts required to be maintained under the Act and has also got the accounts audited and full details of income earned and expenses incurred have been given to the AO. 3. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confir....
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.... Post Office. The assessee further filed objections stating that the receipt issued by the Department of Posts did not contain the address of the assessee. The AO did not accept the assessee's objections stating that Department of Post accepts the letters sent through RPAD which contain full address, however, acknowledgement/receipt issued by them contains only the name of the person and place. The objections raised by the assessee in respect of service of notice u/s.143(2) were not accepted by the AO. 4. On appeal preferred by assessee, the Ld. CIT(A) also did not accept the assessee's ground that notice u/s.143(2) was not served within the prescribed time. 5. Thereafter, the assessee carried the matter before the ITAT. The ITAT, vide order dated 23rd March 2005 passed in ITA No.6534/M/1999, observed that the AO had rejected the assessee's claim without giving proper opportunity to examine the papers and letter issued by the postal authorities. Under the circumstances, the ITAT referred the issue to the file of the AO with a direction to supply evidence including the letter issued by Postal authorities to the assessee and thereafter, pass a fresh assessment order....
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..... The AO has relied upon the provisions of section 27 of the General Clauses Act and has held that the notice was deemed to be served upon the assessee in due course. 9. On the other hand the contentions raised by the assessee are that no such presumption can be made regarding service of notice sent through registered post. The assessee had never received the alleged notice dated 14.11.95. The only notice received u/s 143(2) was notice dated 18.9.96 which was time barred. The assessee had admitted the service of noticed dated 18.11.96. Had the earlier notice been received, then the assessee could have admitted the service of the said notice also. That the burden was upon the department to establish that the service was done on the assessee within the specified statutory period of 12 months. The assessee had filed objections that no alleged notice dated 14.11.95 had been received by it. That since the assessee had challenged the service of the notice; it was on the department to specifically prove as to on which date the notice was served and upon whom served. 10. It is to be noted that section 143(2) of the Act requires that where return has been filed by an assessee, if the ....
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....d in this behalf. (2) The Board may make rules providing for the addresses (including the address for electronic mail or electronic mail message) to which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named. Explanation.-For the purposes of this section, the expressions "electronic mail" and "electronic mail message" shall have the meanings as assigned to them in Explanation to section 66A of the Information Technology Act, 2000 (21 of 2000)." 12. In view of the above provision, the service of notice by post is a valid service in terms of the provisions contained in Section 282(1) of the Act. The Hon'ble Delhi High Court in the case of CIT Vs. Yamu Industries Limited(2008) 306 ITR 309 (Del) has examined the above provisions and has held that the requirement of secton 282 of the Act is that notice may be served upon the person named therein, either by post or if it were a summons issued by a Court under the Code of Civil Procedure. The Hon'ble Delhi High Court thereafter further analysed the provisions of Order V, rule 19A of Code of Civil Procedure, which provides for simultaneous issue of summons for ser....
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....ere brought into existence w.e.f. the same date i.e.1.7.2002, which read as under: Order V, Rule 9 " Delivery of summons by Court.- (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. (2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and where he is such an officer, the summons may be sent to him in such manner as the Court may direct. (3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or elect....
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....elevant provisions of CPC in relation to service of summons where the defendant resides within jurisdiction of another court. Order V Rule 21. "Service of summons where defendant resides within jurisdiction of another court.- A summons may be sent by the court by which it is issued, whether within or without the State, either by one of its officers or by post or by such courier service as may be approved by the High Court, by fax message or by electronic mail service or by any other means as may be provided by the rules made by the High Court to any court (not being the High Court) having jurisdiction in the place where the defendant resides. HIGH COURT AMENDMENTS Rule 21-A BOMBAY, DADRA AND NAGAR HAVELI.- The following shall be inserted: "Rule 21-A. Service of summons by prepaid post wherever the defendant may by residing if plaintiff so desires.- Notwithstanding anything in the foregoing rules and whether the defendant resides within the jurisdiction of the Court or not, (the Court may, in addition to or in substitution for, any other mode of service), cause the summons to be addressed to the defendant at the place where he is....
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....said notice. Further a perusal of the letter of the postal authorities dated 12.12.96 reveals that it has been mentioned therein that the RL No. 563 dated 20.11.1995 was delivered to the addressee, however no name or address of the addressee has been mentioned in the said letter. So far so, even the date of delivery of the said letter has not been mentioned. The assessee has taken a specific objection that no such Regd. Letter has ever been received by it. Under these circumstances, the burden was upon the Department to prove that notice was served upon the assesse within the prescribed time. The revenue has failed to prove its case in this regard. We may further note that in the facts and circumstances of the case, no benefit of presumption under section 27 of the General Clauses Act 1897, or section 114 of the Indian evidence Act is available to the revenue as there are serious doubts about the correct address mentioned on the envelope and even the postal authorities have also not mentioned the name of the addressee and date of delivery of the letter. Even there is no available presumption of the time period within which in normal course a Regd. Post can be taken to have been del....