TaxTMI 
TaxTMI 
2025 (9) TMI 1320
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....der and in the first appellate order were incorrect only because the envelope containing the unserved notice could not be found in the original records, is perverse and liable to be set aside? 2. Whether in view of the report of the Inspector (sent by the Assessing Officer to effect service of notice on the appellant) that the whereabouts of the appellant could not be ascertained and in absence of the Assessing Officer acting on that report by taking steps to serve the appellant through affixture, etc. on his last known address, the procedure prescribed for service of notice under Section 282 of the Income Tax Act stood complied with and the Tribunal is justified in holding that the notice was validly served on the appellant?" 4. Appellant filed his return of income for A.Y. 2002-03 on 23.10.2002, declaring an income of Rs. 3,90,860/-. Thereafter, on the information received from the Central Excise Department, the Assessing Officer, after taking the required approval, issued notice u/s 148 of the Act, 1961, to the appellant for the A.Ys. 2001-02, 2002-03 and 2003-04. These notices were sent via speed post to appellant's address, but no return was filed by the appell....
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.... has been served upon the assessee in view of the presumption u/s 114(f) of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Act, 1872') and this fact was ignored by the Assessing Officer as well as the first appellate court. 7. The above order of Income Tax Appellate Tribunal is under challenge in the present appeal regarding the A.Y. 2003-04. 8. Learned counsel for the appellant has submitted that the order passed by the Income Tax Appellate Tribunal is absolutely erroneous as the Assessing Officer as well as first appellate court has recorded specific finding that notice u/s 148 of the Act, 1961 sent through speed post was returned back then merely because envelope was not available on record and same was missing, it cannot be presumed that notice has been deemed to be served upon the appellant by taking presumption u/s 114(f) of the Act, 1872. It is further submitted by learned counsel for the appellant that the notice has to be served as per the procedure mentioned u/s 282 of the Act, 1961 wherein the word 'post' has been mentioned which means only 'registered post' as per Section 27 of the General Clauses Act, 1897 (hereinafter refe....
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....8 of the Act, 1961 was sent to the appellant. Therefore, no substantial question of law arises in the present case and appeal deserves to be dismissed. 12. After hearing the submission of learned counsel for the parties and on perusal of record, it is clear that this fact is not disputed that the envelope containing the notice u/s 148 of the Act, 1961 sent to appellant through registered post is not available on record as on date because this court itself perused the original record which was produced before this court in pursuance of order dated 15.12.2016 even though the assessing officer as well as first appellate authority has recorded the finding that notice sent to the appellant has returned back. 13. Service of notice u/s 148 of the Act, 1961, upon the assessee is a precondition to initiate reassessment proceedings. This being the provision of a taxing statute, it should be construed strictly. Section 148 of the Act, 1961 is being quoted as under: "148. Issue of notice where income has escaped assessment.-1 [(1)] Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice requiring h....
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.... contention of learned counsel for the appellant that for service of notice as per Section 282 of the Act, 1961, notice should be served on the assessee personally through, post means only the registered post not the speed post is concerned to decide the question, it would be appropriate to reproduce Section 282 of the Act, 1961 as existing at the relevant time is being quoted as under: "282- Service of notice generally (1) A notice or requisition under this Act may be served on the person therein named either by post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908 (5 of 1908). (2) Any such notice or requisition may be addressed- (a) in the case of a firm or a Hindu undivided family, to any member of the firm or to the manager or any adult member of the family; (b) in the case of a local authority or company, to the principal officer thereof; (c) in the case of any other association or body of individuals, to the principal officer or any member thereof; (d) in the case of any other person (not being an individual), to the person who manages or controls his affairs." 15. From perus....
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....he perusal of Section 27 of the Act, 1897, it is clear that the meaning of service by post has been defined as service properly addressing, pre-paying and posting by registered post, a letter containing a document. 19. The term ''post'' and ''registered post'' are relevant for the present purpose. In the case of Milan Poddar Vs. Commissioner of Income Tax (supra), the Division Bench of Jharkhand High Court has observed that the speed post is also a registered post as the speed post is also included in the generic word "post or registered post". It is relevant to mention here that the words 'registered post' mentioned in Section 27 of the Act, 1897, was interpreted by the Division Bench of Jharkhand High Court in Milan Poddar (supra) as per its literal meaning by interpreting it using a liberal interpretation and observed that registered post means the post recorded in a register or book and even the ordinary post for which record is maintained will also come in the definition of registered post. Paragraph no.18 of the judgement of Milan Poddar (supra) is being quoted as under: "18. In view of the reasons discussed above, we are of....
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....ome tax act. It is established law that taxing statute has to be interpreted strictly. Thus, the term 'registered post' in Section 27 of the Act, 1897 should be understood in reference to the registered post services provided by the Indian Postal department which were initially covered by the Indian Post Office Rules, 1933 (hereinafter referred to as 'the Rules, 1933') and is now regulated under the Indian Post Office Rules, 2024 and the Post Office Regulations, 2024. 22. It is apropos to mention that the Rules, 1933 were framed under the Indian Post Office Act, 1898. However, the Indian Post Office Act, 1898 has since been repealed by the Post Office Act, 2023 wherein Post Office Rules 2024 and Post Office Regulation 2024 were framed. Nonetheless, at the time the notice was issued in the present case in the year 2008, the Rules, 1933 were still in effect. Therefore, difference between the registered post service as well as speed post service can be discussed taking into consideration the Rules, 1933. 23. As per Rule 58 of the Rules, 1933 any letter or parcel may be registered at any post office for transmission by post to any other post office. The said Rule ....
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....rm of acknowledgment duly filled in and securely fastened to such article, and unless the article bears the superscription Acknowledgment Due on the address side." 27. Similarly, the Inland Speed Post, which was introduced in 1986, was mentioned in Rule 66B of the Rules, 1933. As per Rule 66B of the the Rules, 1933, Inland Speed Post Article may be booked after obtaining receipt thereof at the specified places for the delivery to certain areas. As per Rule 66B(1) of the Rules, 1933, classes of mail which can be sent by registered service can also be sent through speed post service. 28. As per Rule 66B(3) of the Rules, 1933, the envelope through speed post must bear the name and address of the sender and also the pin code of the post offices of serving address. 29. Similarly, as per Rule 66B(5) of the Rules, 1933, speed post service is a service for delivering postal articles within stipulated time on specified city or town. Rules 66B(1) and 66B(3) of the Rules, 1933 are being quoted as under: "66-B (1)INLAND SPEED POST SERVICE:- Inland Postal articles may be booked, after obtaining receipts therefore, at the places specified in column (1) of the Schedule below and....
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....e Division Bench of Delhi High Court also considered Section 282 of the Act, 1961 for the purpose of sending notice u/s 148 of the Act, 1961. In the case of Commissioner of Income Tax Vs. Hotline International P. Ltd reported in (2008) 296 ITR 333 (Del) and after considering the scope of sending notice through post as well as other mode as mentioned in CPC for sending summons, observed that for the purpose of the Act, 1961, registered post ought to be sent along with acknowledgement deed and notice has to be served personally upon the assessee himself or his authorised agent and observed that merely a refusal to receive notice by the security guard cannot be treated as service upon the assessee. In case of refusal by the assessee to receive notice, it has to be affixed. Paragraph nos.22, 23, 24 and 25 of Hotline International P. Ltd (supra), which are being quoted as under: "22. As per Order V, rule 12 of the Code of Civil Procedure referred to above, wherever it is practicable, the service has to be effected on the defendant in person or on his agent. Admittedly, in the present case, notice under section 148 of the Act was not tendered to the assessee nor was the same ref....
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....ngly, where no such notice has been issued or if the notice issued is not valid or the same has not been served on the assessee in accordance with law, it will not be possible to sustain the eventual assessment made under s. 147 on the basis of such notice. We may also take it that where the notice Issued to an assessee is vague, it would not be possible to rely upon it to sustain an assessment made under s. 147 of the I. T. Act. In this regard two questions that arise for our consideration are: (1) whether the notice dated 29th September, 1962, issued under section 148 suffers from the vice of vagueness; and (2) whether the sald notice can, after subsequently removing the vagueness, be relied upon for sustaining an assessment under s. 147 of the I. T. Act." 35. In the present case, it is undisputed that notice was sent by speed post without any acknowledgement rather than through registered post which is a fundamental requirement for service of notice upon the addressee personally. Consequently, the presumption of service u/s 27 of the Act, 1897 read with Section 114(f) of the Act, 1872 cannot be invoked in relation to the notice sent by speed post even if the envelope containi....