Madan B. Lokur, J.
Oral:
1. The Revenue is aggrieved by an order dated 23rd December, 2005 passed by the Income Tax Appellate Tribunal in ITA No. 3764/Del/2001 for the assessment year 1997-98.
2. Admit.
3. After hearing learned Counsel for the parties, the following substantial question of law is framed for consideration:
“Whether the Income Tax Appellate Tribunal was correct in law in holding that the assessment framed by the Assessing Officer under Section 143(3) of the Income Tax Act, 1961 was without jurisdiction as no notice under Section 143(2) was served on the Assessee within the prescribed time.”
4. Filing of paper book is dispensed with.
5. The Tribunal, in the order under appeal dated 23rd December, 2005, came to the conclusion that the notice dated 9th October, 1998 issued under Section 143(2) of thewas not served upon the Assessee. The Tribunal relied upon an affidavit filed for the first time by the Assessee before it in which the Assessee denied receipt of the notice dated 9th October, 1998. The Tribunal concluded that since the Assessee had, by filing the affidavit, rebutted the presumption of service, the burden shifted on the Revenue to show, by reference to the postal record, that the notice was in fact duly served on the Assessee. It was held that the burden had not been discharged by the Revenue.
6. According to learned Counsel for the Revenue, a notice under Section 143(2) of thedated 9th October, 1998 was sent to the Assessee through registered post on 13th October, 1998. The said notice was not received back undelivered. According to learned Counsel for the Revenue, in terms of Section 27 of the General Clauses Act, 1897 there is a presumption of service of the notice since it was properly addressed and duly posted.
7. Learned Counsel for the Revenue has also produced the original record which shows that a subsequent notice sent to the Assessee at the same address as mentioned in the notice dated 9th October, 1998 was in fact served upon the Assessee. On this, there is no dispute.
8. Learned Counsel for the Assessee flatly denied receipt of the notice dated 9th October, 1998 by the Assessee. It is true that the Assessee received a notice dated 28th February, 2000 on 1st March, 2000 and in compliance with that notice, the Manager (Finance) along with the General Manager (Finance) of the Assessee attended the proceedings before the Assessing Officer on 7th March, 2000.
9. Learned Counsel for the Assessee submits that the filing of the affidavit amounts to an effective rebuttal of the presumption of service under Section 27 of the General Clauses Act. He further submits that in the appeal filed by the Assessee before the Commissioner of Income Tax (Appeals), a ground has been taken to the effect that no notice dated 9th October, 1998 was served upon the Assessee. He also submits that the fact that from 9th October, 1998 to 7th March, 2000 no proceedings were at all held by the Assessing Officer reinforces his position that the notice dated 9th October, 1998 was not served on the Assessee. Learned Counsel for the Assessee placed reliance on the judgments of this Court in Commissioner of Income Tax v. Hotline International (P) Limited, (2007) 211 CTR 207 and Commissioner of Income Tax v. Lunar Diamonds, (2006) 281 ITR 1 (Del.) [LQ/DelHC/2005/491] .
10. Having heard learned Counsel and having gone through the record produced by learned Counsel for the Revenue, we are of the view that in terms of Section 27 of the General Clauses Act, if a notice is properly addressed and despatched through registered post, there is a presumption that it has been served on the Assessee. Learned Counsel for the Assessee is right in contending that the presumption is rebuttable but on the facts of the present case we find that the Assessee has not been able to rebut the presumption.
11. On 7th March, 2000 the Assessee appeared before the Assessing Officer through its Manager (Finance) as well as General Manager (Finance) in response to the notice dated 28th February, 2000. Given their status and position, we would have expected them to query the Assessing Officer about why the Assessee was at all called and after such an enormous delay. However, we find that they apparently did not do so; nor did they make any submission before the Assessing Officer to the effect that they had not been served with any notice prior to the notice dated 28th February, 2000. Of course, the Assessee had come to know of the notice dated 9th October, 1998 because it raised a plea before the CIT(A) 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 CIT(A) 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.
12. In our view the Tribunal erred in placing reliance upon the affidavit filed rather belatedly to come to the conclusion that the Assessee had successfully rebutted the presumption. Had such an affidavit been filed before the CIT(A) it is possible that the CIT(A) may have remanded the matter to the Assessing Officer for making an appropriate inquiry. The Assessee having let that opportunity go by, it ought not to have been permitted by the Tribunal to rely on an affidavit filed at a time of the Assessee’s choosing.
13. We also find that the facts in the cases in which the two decisions referred to were rendered by this Court were quite different and, therefore, those decisions do not help the Assessee.
14. In Hotline International, the issue was of affixation of a notice without trying to serve the Assessee or its agent. That is not the position here. In Lunar Diamonds there was some doubt whether the notice was at all sent or not. Again, that is not the position in this case.
15. For the above reasons, we did not find any merit in the contention of learned Counsel for the Assessee. Under the circumstances, we answer the question in negative, in favour of the Revenue and against the Assessee. We set aside the impugned order and remit the matter back to the Tribunal for deciding the appeal on merits.
16. The parties will appear before the Tribunal on 15th October, 2007 for directions.
17. The appeal is disposed of.
18. Order dasti.
