D. KARUNAKARA RAO, ACCOUNTANT MEMBER 
AND AMIT SHUKLA, JUDICIAL MEMBER

Mohit Jain for the Appellant. 
R.N. Vasani for the Respondent.

ORDER

Amit Shukla, Judicial Member - The present appeal has been preferred by the assessee challenging the impugned order dated 22nd February 2013, passed by the learned Commissioner (Appeals)-XXXII, Mumbai, for the quantum of assessment passed under section 143(3), of the Income Tax Act, 1961 (for short "the Act"), for the assessment year 2001-02, on the following grounds:-

"1.		learned CIT(A)-32, Committed a gross error of law and facts in dismissing the Appeal and concluding that notice was served on 31-10-2002.
2.		He failed to appreciate the facts that no notice was served Vis. 143(2) within the prescribed time of one year i.e. before 31-10-2002.
3.		He Failed to appreciate the facts that the notice Vis. 143(2), was served beyond the statutory period on 15.11.2002, that too on the Sweeper 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, the assessment was completed under section 143(3), at an income of Rs. 17,90,306, after disallowing the claim of deduction under section 80RRA, disallowance of travel expenditure, telephone expenditure, motor car expenses and depreciation on car. Aggrieved by the said order, the assessee preferred an appeal before the learned Commissioner (Appeals) and besides challenging the additions made therein, also raised the legal issue of validity of the assessment under section 143(3) on the ground that notice under section 143(2) was not served upon the assessee before the statutory period of 12 months from the end of the month in which the return of income was filed that is before 31st October 2002. The learned Commissioner (Appeals), vide order dated 21st April 2005, had confirmed most of the addition / disallowance, however, did not adjudicate the issue of validity of service of notice under section 143(2) within the statutory time.

3. In the second appeal filed before the Tribunal besides agitating the grounds on merits, the assessee also raised the ground that the learned Commissioner (Appeals) has erred in not adjudicated the ground relating to validity of the assessment and service of notice under section 143(2). The Tribunal vide order dated 26th June 2008, remanded back the matter to the file of the learned Commissioner (Appeals) to decide the ground pertaining to validity of the assessment on the ground of service of notice under section 143(2) only. Thus, in the second round, the learned Commissioner (Appeals) was besized with the adjudication of service of notice under section 143(2).

4. In the set aside proceedings, the learned Commissioner (Appeals) required the Assessing Officer to furnish the proof of service of notice under section 143(2) and the entire records along with the remand report. The Assessing Officer in the remand report dated 20th August 2013, submitted that the notice under section 143(2) dated 29th October 2002, was addressed to the assessee and was sent by "speed post" on the address of the assessee. The said notice was served on 31st October 2010, as the acknowledgement of service of the said notice on 31st October 2010, was received back from the postal authority which was placed on record. The learned Commissioner (Appeals) confronted the remand report along with the copy of acknowledgement of the service of delivery by the postal 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. ITO [2010] 323 ITR 681/[2009] 183 Taxman 229 (Delhi);
(ii)		CIT v. P.L. Gandhi [2009] 315 ITR 110 (Mad.);
(iii)		CIT v. Avi Oil India (P.) Ltd. [2010] 323 ITR 242 (Punj. & Har.);
(iv)		CIT v. Silver Streak Trading (P.) Ltd. [2010] 326 ITR 418/[2008] 169 Taxman 16 (Delhi);
(v)		Jayanthi Talkies Distributors v. CIT [1979] 120 ITR 576 (Mad.);
(vi)		Umashankar Mishra v. CIT [1982] 136 ITR 330/11 Taxman 75 (MP);
(vii)		Dina Nath v. CIT [1993] 204 ITR 667/[1994] 72 Taxman 174 (J&K); and
(viii)		CIT v. Vishnu & Co. (P.) Ltd. [2009] 319 ITR 151/[2010] 187 Taxman 316 (Delhi)

5. The learned Commissioner (Appeals), after considering the assessee's submission, remand report filed by the Assessing Officer and also the material placed on record, held that the notice under section 143(2) dated 29th October 2002, was issued at the address.

"B-8, Panchsheel Apartment, Andheri-Kurla Road, Andheri (E) Mumbai 400 093, which is the address mentioned by the assessee on the return filed by him on 31st October 2001 for A.Y. 2001-02."

He further noted that the assessee till that time had not given any intimation regarding any change of address and the notice was sent through speed post, the service of which has duly been acknowledged by the postal department which is an independent Government agency. The notice was dispatched by speed post on 30th October 2002, at 11:00 AM. The said post bears the UID number of the receipt "ED007695333IN". The postal authorities have placed the acknowledgement with signature and date as 31st October 2002, as a proof of service on the mentioned address. On this basis, the learned Commissioner (Appeals) held that notice was properly served on the mentioned address of the assessee and concluded that notice was properly served on 31st October 2002, which was within the limitation date as provided in proviso to section 143(2). Regarding the assessee's plea that the said signature in acknowledgement does not belong to the assessee, the learned Commissioner (Appeals) held that the said notice has been served by the Central Government agency on the correct address, then it is not the duty of the Assessing Officer to ensure that the letter is served by the postman personally on the assessee or not. When the Assessing Officer has categorically mentioned in the assessment order dated 23rd February 2004, that notice has been served on 31st October 2002, then there cannot be an after thought by the Assessing Officer in getting the acknowledgement signed by someone else on 31st October 2002, because till the completion of the assessment proceeding, the assessee had not disputed the service of notice, on the contrary proceeding was attended by the authorised representative from time to time.

6. One very important fact which has been brought on record 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 CIT v. Yamu Industries Ltd. [2008] 306 ITR 309/167 taxman 67, 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 v. CIT [Writ Petition No 13977 of 2009, dated 22-12-2009];
(ii)		CWT v. Mrs. Illa Pal Chowdhary [1971] 82 ITR 936 (Cal.);
(iii)		CIT v. Jai Prakash Singh [1996] 219 ITR 737/85 Taxman 407 (SC);
(iv)		CIT v. Ram narain Bansal [2011] 202 Taxman 213/13 taxmann.com 216 (Punj. & Har.); and
(v)		K.J. Thomas v. CIT [2008] 301 ITR 301 (Ker.).

7. After relying upon the aforesaid case laws and the material on record, the learned Commissioner (Appeals) concluded as under:—

"Thus, in view of the facts as stated above and the ratio of Supreme Court and High Courts as mentioned above, the notice under section 143(2) is duly and effectively served by speed post on the assessee on 31/10/2002 within the limitation period. The ground raised by the appellant on validity of service of notice u/s 143(2) is therefore rejected."

8. Before us, the learned counsel submitted that the law as contained in section 282, categorically provides that the notice has to be served upon the person named therein. In this case, the notice was not served upon the assessee and the acknowledgement receiving the post was not signed by the assessee. Thus, it cannot be held that the notice under section 143(2) was served upon the assessee within the statutory period of 12 months, as provided in proviso to section 143(2). In support of his contention, he has relied upon the following case laws.

(i)		Nulon India Ltd. v. ITO [2010] 323 ITR 681[2009] 183 Taxman 229 (Delhi);
(ii)		P.L. Gandhi, (supra);
(iii)		Avi-Oil India (P.) Ltd. (supra);
(iv)		Silver Streak Trading (P.) Ltd. (supra);
(v)		Jayanthi Talkies Distributors (supra)
(vi)		Umashankar Mishra (supra)
(vii)		Dina Nath (supra)
(viii)		Vishnu & Co. (P.) Ltd. (supra)
(ix)		OIP Sensor Systems India Liaison Office v. ADIT (I.T), [2014] 41 taxmann.com 509/148 ITD 324 (Delhi);
(x)		CIT v Smt. Gita Rani Ghosh [2014] 361 ITR 17/[2013] 219 Taxman 264/36 taxmann.com 322 (Guwahati).

9. The learned Departmental Representative, on the other hand, strongly relied upon the above finding recorded by the learned Commissioner (Appeals) as discussed above.

10. We have heard the rival contentions, perused the impugned order and also the material placed on record. In this case, the return of income was filed on 31st October 2001. As per the then provision contained in section 143(2) r/w proviso, the notice under section 143(2) was to be served upon the assessee within the period of 12 months from the end of the month in which the return of income was furnished. The relevant proviso read as under:—

"143(2)**

**

**

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 the receipt of speed post delivered on 31st October 2002, as per the acknowledgement does not bear appear the signature of the assessee and secondly, the notice was received by the assessee only on 15th November 2002, through third person which was beyond the period of limitation of 12 months. Thus, the notice which has been purported to be served on 31st October 2002, has not been served upon the assessee in person and, therefore, the conditions laid down in proviso to section 143(2), is not fulfilled and, therefore, the entire assessment order is bad in law.

12. The manner of service of notice under the Income Tax Act, 1961, has been provided in section 282, which prior to 1st October 2009, read 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)."

The aforesaid provision provides that the notice may be served on the person named therein firstly, either by post or secondly, in the manner provided in Order-V of CPC, 1908. In the present case, the notice has been served through post. The said section clearly envisages that one of the mode for service of notice is by post upon a person whose name is mentioned in the notice. Once any document or notice or summon is required to be served by post, then the service shall be deemed to be effected, if the post have been properly addressed with the requisite stamp and delivered by the postal authority on the given address of the person named therein. In such a case, there is presumption under the law that it has been served upon the assessee. This presumption of service has been provided in section 27 of the General Clauses Act, 1897, which reads as under:—

"27. Meaning of service by post.— Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered 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 of the assessee and on the address mentioned by the assessee. It has not been disputed before us that the address of the assessee has changed. Once the notice has been correctly addressed to a person and has been served upon the correct address by the postal authority on the date mentioned in the acknowledgement of service, then it cannot be said that the service of notice through post has been done on some subsequent date or to some other person. It is also not the case of the assessee that the said speed post have been received after 31st October 2002. The assessee's case is that the acknowledgement of service of notice does not bears the signature of the assessee. Such a contention of the assessee is legally not tenable, because once the notice has been sent through post and the postal authorities have duly acknowledged that the same has been served on a given date on the correct address of the person on whom the post was addressed, then it is not open for the assessee to say that the said post was received by the some other person. The presumption in law in such a case is that it has been served upon the assessee.

15. Further, even in the Code of Civil Procedure, 1908, Order-V, Rule-9, there is a presumption of delivery of summon sent through post if the summon has been properly addressed, pre-paid and duly sent by registered post acknowledgment. This has been provided in clause 3 to 5 of Rule-9, Order-V, which has been brought w.e.f. 1st July 2002.

"(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 electronic mail service) provided by the rules made by the High Court?"

(5) Where an acknowledgement or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the, summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect at the defendant or his agent had refused to take delivery of the postal article containing the summons or had 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.

15.1 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 been claimed to have been received by the assessee on 15th November 2002, other than the one dated 29th October 2002, sent through speed post. If there is no second notice, then the presumption is that the same notice dated 29th October 2002, sent through speed post which was served on 31st October 2002, has been received by the assessee.

16. The aforesaid proposition that if the notice under section 143(2), has been sent through post and delivered on time on the correct address, it is a proper service in time, has been reiterated and endorsed by the Hon'ble Delhi High Court in CIT v. BVINS Overseas India Ltd., [2008] 305 ITR 320/165 Taxman 95 (Del.), and the decision of the Yamu (supra), has relied upon by the learned Commissioner (Appeals).

17. The decision relied upon by the assessee are not on such situation, because in most of the cases, the notices sent through speed post was served either on some different address other than mentioned in the return of income or was served beyond the period of limitation. In none of these decisions the Courts have held that even when the notices have been served by speed post on the correct address and addressed to the person to whom notice is meant, within the statutory time limit, then also it is an invalid service, if the concerned person denies the receiving of the said notice in person. Thus, in view of our discussion and on the basis of material placed on record, we hold that the notice under section 143(3) was validely served upon the assessee with the statutory time limit and accordingly, we affirm the finding of the learned Commissioner (Appeals) which is based on correct appreciation of facts and principles of law. The grounds raised by the assessee are thus dismissed.

18. In the result, assessee's appeal is dismissed.