TaxTMI 
TaxTMI 
2022 (12) TMI 1002
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....appeal, impugning the revision of it's original assessment, would render infructuous the Revenue's appeal. The only contention, raised per additional ground by Shri Bardia, the ld. counsel for the assessee, who did not argue any other ground of appeal of the Memorandum of Appeal, was of the revision under reference being barred by time. The impugned order (IO), though dated 31/3/2015, so that it was apparently passed on that date, could not, in view of the material on record and surrounding circumstances, be said to have been passed on that date, being the last date on which it could be made in terms of s. 263(2), but only later. Toward his this contention, Sh. Bardia would take us through the following: a) reply dated 09/02/2016 by the Principal Commissioner of Income Tax -1, Jabalpur, to the assessee's application under Right to Information Act, 2005 (RTI Act) dated 08/02/2016 explaining the modus operandi, i.e., of the despatch being made through the Despatch Section after being entered in the Despatch Register, with the speed-post acknowledgement operating as a surrogate proof of receipt by the addressee, and that the articles returned are served through the Notice Server. It....
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.... having been handed-over thereto. The said internal record is stated to be not available. On being further asked by the Bench as to why, in that case, the despatch clerk retained the article (order) with him for several days, and did not despatch it the same or the following day, no satisfactory answer was forthcoming from Shri Gotru. It is understandable that a parcel/article may not be dispatched the same day, but on the succeeding day or even the day after, i.e., due to rush of work. This becomes all the more relevant as, as explained, as per the understanding arrived at with the postal department, a person from the said Department visits the Income-Tax Department on a daily basis for collection of posts, and who again provides a receipt to the despatch clerk in token of his acceptance of the article for post. Needless to add that the said record, evidencing the delivery of the posts to the postal department, which acts as the Revenue's agent for delivery of it's communications, etc., and which would be retained only by its' dispatch section, is not available. The despatch register also does not bear either the date of delivery to the postal department or the receipt number/date....
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....14(e) of the Indian Evidence Act, shall hold. There could be, it explained, several stages before the despatch of an order. The order would require being vetted, corrected and verified by the ministerial staff; entered in the relevant records, before being forwarded by it to the despatch section, through which the despatch is centralised, for being in turn forwarded to the postal department, which makes the actual delivery. The order under reference though could be said to be issued the moment it is signed and made-over to the secretarial staff for the purpose, which may be signified by record, i.e., goes out of control of the signing authority, who becomes functus officio upon the said signing. In the case of the Tribunal, for instance, the order is passed on its pronouncement in the open court, even as the same may be, for various reasons, received by the Registry from the secretarial staff only later, much less the date on which the verified copies of the order are made-over by the despatch section of the Registry to the postal department for transmitting it to the parties. Further, in that case, it was too late in the day to call for any record from the Department - the onus fo....
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....n no manner of any doubt that the Revenue is completely clueless, and has no explanation in the matter. A failure to adduce evidence would, on the contrary, raise the presumption as to adverse inference, as is settled law (refer: Union of India v. Rai Deb Singh Bist [1973] 88 ITR 200 (SC); CIT v. Krishnaveni Ammal [1986] 158 ITR 826 (Mad)). The law in the matter is well-settled, with there being instances galore of the higher courts drawing an adverse inference in the absence of the requisite evidence being led by the person raising the claim. In Delhi Cloth & General Mills Co. Ltd. v. State of UP [1979] 118 ITR 277 (SC), for example, the Revenue raising a claim before the Hon'ble Court that the return filed by the assessee on November 8, 1958 was not in response to the notice u/s. 15(3) dated April 7, 1955, inasmuch as it was not within the time prescribed per the said notice, the Hon'ble Court allowing time to the parties, particularly the Revenue, to produce material in that behalf, drew an adverse inference in the absence of it producing the relevant record, ostensibly in it's possession, also finding support therefor from the non-raising of any objection in this regard by the ....