Anirudh Prasad, V. DCIT,

ITA 47/PAT/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4667 (ITAT-PATNA)
• Duration Of Justice: 3 year(s) 11 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 1994-1995
• Appeal Filed On: 27-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABHAY KUMAR
• Assessee Lawyers: S C SANNIGRAHI
• Keywords: Assessment record; Condonation of delay
• Section: 271(1)(c); 143(3); 27; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH , PATNA BEFORE SHRI CHANDRA MOHAN GARG, J M AND SHRI L .P. SAHU, AM ITA NO. 44, 46 - 48 / PAT /20 1 5 ( ASSESSMENT YEAR S : 1991 - 92, 1992 - 93, 1994 - 95 & 1997 - 98 ) ANIRUDH PRASAD ALIAS SADHU YADAV, C/O M/S ABDICO CHARTERE D ACCOUNTANTS, 1C, ANAND TOWERS, EXHIBITION ROAD, PATNA - 800001 VS. DCIT, CENTRAL CIRCLE - 2, PATNA PAN NO. : A E CPP 8298 R ( APPELLANT ) .. ( RESPONDENT ) AND ITA NO. 43/PAT /20 15 (ASSESSMENT YEAR : 1997 - 19 98 ) ANIRUDH PRASAD (HUF) ALIAS SADHU YADAV, C/O M/S ABDICO CHARTERED ACCOUNTANTS, 1C, ANAND TOWERS, EXHIBITION ROAD, PATNA - 800001 VS. DCIT, CENTRAL CIRCLE - 2, PATNA PAN NO. : A ECPP 8298 R ( APPELLANT ) .. ( RESPONDENT ) AS SESSEE BY : SHRI S.C.SANNIGRAHI , FCA REVENUE BY : SHRI ABHAY KUMAR , SR. DR DATE OF HEARING : 28 /06/2019 DATE OF PRONOUNCEMENT : 26 /07/2019 O R D E R PER BENCH : TH E SE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - III, PATNA ALL DATED 1 5 .5.2015 FOR THE ASSESSMENT YEARS 1991 - 92, 1992 - 93 , 1994 - 95 & 1997 - 9 8, RESPECTIVELY. 2. SINCE THE GROUNDS RAISED IN ALL THESE APPEALS ARE IDENTICAL, EXCEPT DIFFERENCE IN FIGURES, THEREFORE, WITH THE CONSENT OF BOTH THE PARTIES, ALL THE ABOVE APPEALS HAVE BEEN TAKEN FOR HEARING ALTOGETHER AND DISPOSED OFF ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 2 BY THIS CONSOLIDAT ED ORDER. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE INTO CONSIDERATION THE FACTS MENTIONED IN ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 1991 - 92 IN ITA NO. 44 / PAT /201 5 , FOR DECIDING ALL THE APPEALS AND THE SIMILAR GROUNDS MENTIONED THEREIN ARE AS UNDER : - 1. THE ORDER OF THE COMMISSIONER (APPEAL) CONTRARY TO LAW AND FACTS OF THE CASE. 2. THE COMMISSIONER (APPEAL) OUGHT TO HAVE ACCEPTED THE FACT THAT THE DEMAND NOTICE WAS SERVED TO THE ASSESSEE AFTER LAPSE OF MORE THAN SIX YEAR, SO AS PER DECISION OF THE COURT THE DEMAND NOTICE SHOULD HAVE BEEN TREATED AS INVALID. 3. THE COMMISSIONER (APPEAL) OUGHT TO HAVE ACCEPTED THE FACT THE CONDITIONS OF SECTION 127(1) WAS NOT FOLLOWED BY THE DEPARTMENT, SO ANY ORDER PASSED WITHOUT PROPER JURISDICTION IS VOID AB - INIT IO AND HAVE NO LEGAL EFFECT. 4. THAT THE COMMISSIONER (APPEALS) OUGHT TO HAVE GIVEN HIS COMMENTS ON THE GROUND OF APPEAL ,WHEN HE HEARD AND DISCUSSED ALL POINT GIVEN IN THE APPEAL. 5. THE COMMISSIONER (APPEALS) ERRED IN REJECTING THE APPEAL AS TIME BA RRED KNOWING THE FACT THAT IT WAS HEARD BY HIS THREE PREDECESSORS COMMISSIONER (APPEAL) AND THEY DID FIND ANY INFIRMITY IN ACCEPTING THE APPEAL DURING THE PERIOD BETWEEN 2007 TO MARCH, 2015. 6 . THE COMMISSIONER {APPEAL) ERRED IN MAKING ROVING ENQUIRY OF A ISSUE WHICH WAS NOT A SUBJECT MATTER OF ASSESSMENT ORDER OR GROUND OF APPEAL. 7. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUND OF APPEAL. 3. FACTS IN BRIEF ARE THAT THE ASSESSEE IS A MEMBER OF LEGISLATIVE ASSEMBLY FROM GOPALGANJ DISTRICT, BIHAR AND DERIVES INCOME FROM DAIRY BUSINESS AND POULTRY BUSINESS. THE ASSESSEE FILED HIS RETURN OF INCOME ON 29.09.1997 DISCLOSING TOTAL INCOME OF RS.37,000/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND THE AO COMPLETED ASSESSMENT U/S . 143(3) READ W ITH 147 OF THE ACT DETERMINING A TOTAL INCOME OF ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 3 RS.5,39,406/ - . SUBSEQUENTLY, THE AO INITIATED PENALTY PROCEEDING U/S 271( 1 )(C) OF THE ACT WAS AND A SHOW CAUSE NOTICE WAS ISSUED U/S 274 READ WITH 271 OF THE IT. ACT ALONG WITH THE ASSESSMENT ORDER FIXING TH E DATE FOR HEARING OF PENALTY ON 10.05.2000. WHEN T HERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE, THE AO PASSED P ENALTY ORDER ON 28.09.2000 LEVYING PENALTY OF RS 4,08,718/ - FOR AY1991 - 92. PENALTY ORDERS FOR OTHER ASSESSMENT YEARS 1992 - 93, 1994 - 95 & 19 97 - 98 WERE ALSO PASSED ON 28.09.2000 . 4 . FEELING AGGRIEVED FROM THE PENALTY ORDER PASSED BY THE AO, THE ASSESSEE APPEALED BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEALS OF THE ASSESSEE FOR THE ASSESSMENT YEARS UNDER CONSIDERATION HOLDING THAT THE APPE ALS FILED BY THE ASSESSEE ARE BEYOND THE PRESCRIBED TIME LIMIT OF SECTION 249(2B) OF THE ACT. 5 . AGGRIEVED THEREBY THE ASSESSEE IS IN FURTHER APPEALS BEFORE THE INCOME TAX APPELLATE TRIBUNAL. 6. LD A.R. OF THE ASSESSEE CONTENDED THAT NO SHOW CAUSE NOTICE WAS ISSUED BY THE CIT(A) REGARDING NON - SUBMISSION OF APPEALS WITHIN THE PRESCRIBED TIME LIMIT AND THE ISSUE OF TIME BARRING WAS NEVER DISCUSSED BY THE CIT(A) BEFORE DISMISSAL OF APPEALS. HE VEHEMENTLY SUBMITTED THAT THE DECISION OF CIT(A) IS ARBITRARY AND NOT VALID IN THE EYES OF LAW. LD A.R. FURTHER SUBMITTED THAT THE ASSESSEE HAS A VALID BONAFIDE AND COGENT REASON FOR NON - FILING OF APPEALS WITHIN THE PRESCRIBED TIME, THEREFORE, THE DELAY OF SIX YEARS IN FILING THE APPEALS BEFORE THE CIT(A) OUGHT TO HAVE ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 4 BEEN CONDONED. LD A.R. STRENUOUSLY CONTENDED THAT THE ASSESSEE WAS NOT ALLOWED OPPORTUNITY OF HEARING BY THE CIT(A), THEREFORE, THE MATTER BE RESTORED TO THE FILE OF THE CIT(A) TO CONDONE THE DELAY AND THEREAFTER TO ADJUDICATE THE APPEALS ON MERITS. 7 . O N THE OTHER HAND, LD D.R. DREW OUR ATTENTION TOWARDS THE FIRST APPELLATE ORDER AND SUBMITTED THAT THE ASSESSEE HAS FILED APPEAL ON 10.1.2017, WHEREAS THE DATE OF PASSING OF THE ORDER IS DATED 28.09.2000 AND THE ASSESSEE HAS MENTIONED THE DATE OF SERVICE O F DEMAND NOTICE AS 2 6 .12.2006 AND, ACCORDINGLY, DID NOT FILE ANY PETITION FOR CONDONATION OF DELAY IN FILING OF APPEAL. IT WAS ALSO THE CONTENTION OF LD. DR THAT T HE A.O. HAS MENTIONED IN THE LETTER DATED 17.10.2000 THAT THE PENALTY ORDERS FOR ABOVE ASSESS MENT YEARS WERE ISSUED ON 29.09.2000 AND SENT BY SPEED POST, HOWEVER, THE ORDERS HAVE COME BACK WITH A POSTAL REMARK DATED 05.10.2000 AS 'REFUSED'. LD. DR FURTHER SUBMITTED THAT WHEN THE PRESSURE OF RECOVERY MOUNTED BY THE TRO INCREASED THE ASSESSEE APPROA CHED THE A.O. AND COLLECTED COPY OF NOTICE OF DEMAND ON 26.12.2006 AND THEREAFTER FILED THE APPEAL ON 10.01.2007. THEREFORE, THE ASSESSEES CASES ARE FILED BEYOND THE TIME LIMIT AFTER LAPSE OF SIX YEARS, EMPOWERED THE CIT(A) RIGHTLY TREATING THE APPEAL AS TIME BARRED AND DISMISSED THE SAME. ACCORDINGLY, LD. DR SUBMITTED THAT THE APPEALS OF THE ASSESSEE DESERVE TO BE DISMISSED. 8. AFTER HEARING BOTH THE PARTIES AND CAREFULLY PERUSING THE MATERIALS AVAILABLE ON RECORD, WE FIND THAT IN THE ASSESSMENT ORDER THE AO ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 5 MENTIONED THAT THE LETTER ADDRESSING TO THE ASSESSEE ON 17.10.2000 WAS ISSUED TO THE ASSESSEE REGARDING REFUSAL TO RECEIVE PENALTY ORDERS FOR THE ASSESSMENT YEARS UNDER CONSIDERATION WHEREIN THE AO HAS MENTIONED IN THE LETTER THAT THE PENALTY ORDERS FO R ABOVE ASSESSMENT YEARS WERE ISSUED ON 29.09.2000 AND SENT BY SPEED POST. THE ORDERS HAVE COME BACK WITH A POSTAL REMARK AS REFUSED ON 05.10.2000. IT WAS ALSO MENTIONED THAT POSTAL AUTHORITY HAD MADE AT LEAST THREE ATTEMPT FOR SERVICE ON 30.09.2000, 03. 10.2000 & 04.10.2000 WITHOUT ANY SUCCESS. THEREFORE, CIT(A) AFTER GOING THROUGH THE ASSESSMENT ORDER OBSERVED THAT THE ASSESSEE HAS BEEN GIVEN AMPLE OPPORTUNITIES TO COLLECT THE COPY OF DEMAND NOTICE FROM THE OFFICE OF THE AO, HOWEVER, THE ASSESSEE HAS REC EIVED THE SAME ONLY ON 26.12.2006, WHICH INDICATES FAILURE ON THE PART OF THE ASSESSEE. ACCORDINGLY, THE CIT(A) HELD THAT THE APPEALS FILED BY THE ASSESSEE ARE TIME BARRED. WE FIND THAT THE MAIN REASON FOR DENIAL OF CONDONATION OF DELAY OF SIX YEARS TAKEN BY THE CIT(A) IS THAT THERE IS NO PETITION FOR CONDONATION OF DELAY. FOR THE COMPLETENESS OF OUR ORDER, WE WOULD LIKE TO REPRODUCE THE FOLLOWING FINDINGS RECORDED BY THE CIT(A) IN THIS REGARD : - IN VIEW OF THE ABOVE FACTS, IT CAN BE CONCLUDED THAT THERE IS EVIDENCE IN FAVOUR OF THE REVENUE THAT THE NOTICE OF PENALTY DEMANDS CAN BE TREATED AS DEEMED SERVICE. THE APPELLANT HAD AMPLE OPPORTUNITIES RIGHT FROM SEPTEMBER 2000 ONWARDS TO COLLECT THE COPY OF DEMAND NOTICE FROM THE OFFICE OF THE A.O. THIS WAS DONE BY THE APPELLANT ONLY ON 26.12.2006. THIS INDICATES FAILURE ON THE PART OF THE APPELLANT IN NOT COLLECTING THE DEMAND NOTICES FROM THE OFFICE OF THE A.O. DESPITE SPECIFIC INTIMATION BY THE A.O. THAT THERE IS DEEMING PROVISIONS FOR SERVICE OF NOTICE OF DEM AND BY THE DEPARTMENT. FINALLY, THIS WAS DONE BY THE APPELLANT ON 26.12.2006 AND THE REASONS FOR THIS DELAY CAN BE BEST KNOWN TO THE APPELLANT OR HIS AR. I, THEREFORE, HOLD THAT THE APPEAL HAS BEEN FILED BEYOND ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 6 THE PRESCRIBED TIME LIMIT OF SECTION 249(2)( B) OF THE ACT. THERE IS NO PETITION FOR CONDONATION OF DELAY IN FILING OF APPEAL BY THE APPELLANT NEITHER THE FACTS DISCUSSED HEREINABOVE SUGGEST ANY COGENT REASONS FOR FILING OF APPEAL AFTER LAPSE OF ABOUT SIX YEARS. HENCE, THE APPEAL OF THE APPELLANT IS HEREBY DISMISSED AS INADMISSIBLE. SINCE THE APPEAL IS DISMISSED AS INADMISSIBLE, GROUNDS OF APPEAL ON MERITS ARE NOT ADJUDICATED. THE APPEAL IS DISMISSED 9. ON BEING ASKED BY THE BENCH, LD A.R. DID NOT CONTROVERT THIS FACTUAL POSITION THAT THE ASSESSEE HAS NOT FILED ANY PETITION SEEKING CONDONATION OF DELAY OF SIX YEARS IN FILING THE APPEAL BEFORE THE CIT(A). HENCE, WE SAFELY PRESUME D THAT THE ASSESSEE HAS NOT FILED ANY CONDONATION PETITION BEFORE THE CIT(A). 10 . WE WOULD ALSO LIKE TO POINT OUT THAT THE QUANTUM APPEALS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS UNDER CONSIDERATION, HAVE BEEN DISMISSED BY THE TRIBUNAL BY AN EVEN DATE WHILE CONSIDERING THE APPEALS OF THE ASSESSEE IN ITA NOS.39 TO 42/PAT/2015 , WHEREIN THE TRIBUNAL OBSERVED AS UNDER : - 8. ON CAREFUL CONSIDERATION OF THE RIVAL SUBMISSIONS, FIRST OF ALL, WE FIND IS PROFITABLE TO REPRODUCE THE CONCLUDING FINDINGS AND OBSERVATIONS OF THE CIT(A), WHICH AS FOLLOWS: IN VIEW OF THE ABOVE DETAILED FINDING AND DISCUSSION BY THE HONBLE JHARKHAND HIGH COURT, THE APPELLANTS CONTENTION THAT THE SERVICE OF DEMAND NOTICE SHOULD HAVE BEEN MADE BY REGISTERED POST IS NOT TENABLE EVEN IF ASSUMED THAT THE SERVICE WAS EFFECTED BY THE AO BY SPEED POST. FURTHER, THE APPELLANTS CONTENTION THAT IN CASE OF RE FUSAL OF NOTICE BY THE APPELLANT, THE AO HAD AN OPTION TO EXERCISE SERVICE OF DEMAND NOTICE BY AFFIXATION UNDER RULE 17 OF ORDER 5 OF CPC, IT IS NOTICED THAT THIS CONTENTION IS ALSO NOT ACCEPTABLE AS THE AO HAD NO SUCH OCCASION REGARDING REFUSAL OF DEMAND NOTICE. THE RECORDS OF THE AO INDICATE THAT THE DEMAND NOTICE, ASSESSMENT ORDER AND NOTICE FOR INITIATION OF PENALTY U/S.271(1)(C) WAS ISSUED ON 31.3.2000 AND POSTED VIDE REGISTERED POST NO.6311 MENTIONED ON THE SECOND COPY OF DEMAND NOTICE (CARBON COPY) AVAILABLE ON RECORD INDICTING THE COPY THAT THIS DISPATCH WAS NOT RETURNED BACK MEANING THEREBY DEEMED SE .ICE ON THE APPELLANT. FILING OF RECTIFICATION PETITION ON 26.04.2000 BY THE APPELLANT CORROBORATE THIS FACT. THE APPELLANT'S CONTENTION THAT THE DEM AND NOTICE WAS SERVED AFTER A PERIOD OF TWO YEARS AND ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 7 FOUR MONTHS AND HENCE NOTICE OF DEMAND WAS ILLEGAL IN VIEW OF DECISION IN THE CASE OF KHEMCHAND RAMDAS VS. CIT (1934) 2 ITR 216 (SINDH) IS ALSO NOT ACCEPTABLE AS THE ASSESSMENT RECORD SHOWS ISSUE AND DI SPATCH OF NOTICE OF DEMAND ALONGWITHASSESSMENT ORDER AND NOTICE FOR INITIATION OF PENALTY U/S 271(1)(C) OF THE ACT ON 31.3.2000 AND DEEMED SERVICE OF THE SAME BASED ON THE DECISION OF THE HON'BLE JHARKHAND HIGH COURT DISCUSSED ABOVE. AFTER DEALING WITH TH E APPELLANTS CONTENTION, FOLLOWING FACTS ARE FURTHER GATHERED FROM THE VARIOUS CORRESPONDENCES BY THE APPELLANT AS NOTICED FROM THE ASSESSMENT RECORDS : (I) THE APPELLANT HAD FILED RECTIFICATION PETITION DATED 25.04.2000 WHICH WAS RECEIVED BY THE A.O. ON 26. 04.2000. IN THIS APPLICATION FOR RECTIFICATION, THE APPELLANT HAS STATED AS UNDER: 'ALL THE AFOREMENTIONED MISTAKES ARE APPARENT FROM THE RECORD UNDER SECTION 154 OF THE INCOME - TAX ACT, 1961.TILL SUCH TIME AS THE RECTIFICATION IS MADE AND DEMAN D REVISED, I MAY BE NOT BE TREATED AS ASSESSEE IN DEFAULT IN RESPECT OF THE TAX PRESENTLY DEMANDED FOR THE A.Y. 1991 - 92.' THIS SUBMISSIONS OF THE APPELLANT CLEARLY INDICATE THAT HE MUST HAVE RECEIVED NOTICE OF DEMAND ALONGWITH THE ASSESSMENT ORDER FOR WHI CH HE IS SEEKING RECTIFICATION. (II) (FROM THE ASSESSMENT RECORD, IT IS NOTICED THAT THE CARBON COPY OF NOTICE OF DEMAND WITH HANDWRITTEN REMARK 'REGISTERED POST NO.N6311 DATED 31.03.2000 WRITTEN ON THE TOP WAS AVAILABLE. CARBON COPY OF NOTICE FOR INITIATION O F PENALTY U/S 271(1)(C) IS ALSO AVAILABLE. THE ORIGINAL COPY OF DEMAND NOTICE AND NOTICE FOR INITIATION OF PENALTY U/S271(1)(C) IS NOT AVAILABLE ON THE RECORD MEANING THEREBY THE DISPATCH OF THESE NOTICES BY REGISTERED POST DID NOT COME BACK. SIMILARLY, FO R THE PENALTY ORDER U/S 271(1)(C), IT WAS NOTICED THAT BOTH CARBON COPY AS WELL AS ORIGINAL COPY OF NOTICE OF DEMAND OF PENALTY WAS AVAILABLE IN THE RECORD. IT WAS ALSO NOTICED THAT THE ENVELOPE CONTAINING ORIGINAL NOTICE OF DEMAND OF PENALTY U/S 271(L)(C) WAS RETURNED BACK AS 'REFUSED' REMARK. THIS CLEARLY PROVES THAT IN THE CASE OF ASSESSMENT ORDER AND THE NOTICE OF DEMAND FOR ASSESSMENT, THERE IS NO EVIDENCE OF RETURN BACK OF THESE NOTICES SENT THROUGH REGISTERED POST OTHERWISE THESE COULD HAVE BEEN IN A SSESSMENT RECORD AS IS THE CASE WITH ORIGINAL PENALTY ORDER AND PENALTY DEMAND. ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 8 (III) THE ASSESSMENT RECORD INDICATE A LETTER DATED 17.10.2000 ADDRESSED TO THE APPELLANT REGARDING REFUSAL TO RECEIVE PENALTY ORDERS FOR THE ASSESSMENT YEAR 1991 - 92, 1992 - 93, 1994 - 95 & 1997 - 98. THE A.O. HAS MENTIONED IN THE LETTER THAT THE PENALTY ORDERS FOR ABOVE ASSESSMENT YEARS WERE ISSUED ON 29.02.2000 AND SENT BY SPEED POST. THE ORDERS HAVE COME BACK WITH A POSTAL REMARK DATED 05.10.2000 AS 'REFUSED'. IT WAS ALSO MENTIONED THAT POSTAL AUTHORITY HAD MADE ATLEAST THREE ATTEMPT FOR SERVICE ON 30.09.2000, 03.10.2000 & 04.10.2000 WITHOUT ANY SUCCESS. IN THIS LETTER, THE A.O. INFORMED THE APPELLANT THAT THE REFUSAL AMOUNTS TO DEEMED SERVICE AND IT WAS INSTRUCTED TO THE APPELLANT THAT IN CASE COPY OF PENALTY ORDER ARE REQUIRED, THE SAME CAN BE COLLECTED FROM THE OFFICE OF THE A.O. EITHER PERSONALLY OR THROUGH AUTHORIZED REPRESENTATIVE. VIDE THIS LETTER PHOTOCOPY OF ENVELOPE CONTAINING THE ENDORSEMENT OF POSTAL AUTHORITY WERE ALSO ENCLOS ED BY THE A.O. FOR PERUSAL BY THE APPELLANT (IV) THE ASSESSMENT RECORD ALSO INDICATE SEVERAL OTHER CORRESPONDENCES OF THE AR OF THE APPELLANT VIZ. LETTER DATED 05.07.2000 ON THE ISSUE OF ASSESSMENT PROCEEDINGS, LETTER DATED 07.07.2000, LETTER DATED 19.9.2000. LETTER DATED 01.11.2000 ON THE ISSUE OF SERVICE OF PENALTY NOTICE WHICH INDICATE THAT THE AR OF THE APPELLANT WAS ENGAGED IN COMMUNICATIONS WITH THE A.O. WHEREAS NOT MAKING EFFORTS TO COLLECT THE COPIES OF NOTICE OF DEMAND, IF AT ALL NOT RECEIVED BY THE APPELLANT. IT WAS ONLY WHEN THE PRESSURE OF RECOVERY MOUNTED BY THE TRO ' INCREASED THE APPELLANT APPROACHED THE A.O. AND COLLECTED COPY OF NOTICE OF DEMAND ON 26.12.2006 AND THEREAFTER FILED THE APPEAL ON 10.01.2007. V) THE RECOVERY RECO RDS OF THE TRO INDICATE THAT NOTICE OF DEMAND TO THE DEFAULTER IN FORM NO. ITCP1 WAS SERVED BY AFFIXTURE ON 10.02.2004. THIS IS NOT THE SERVICE OF ORIGINAL DEMAND NOTICE BUT PART OF RECOVERY PROCESS BY THE TRO AND THE APPELLANT HAS MISTAKENLY UNDERSTOOD TH IS AS ORIGINAL DEMAND NOTICE. (VI) THE APPELLANT HAS FURNISHED THE COPY OF RTI INFORMATION SOUGHT FROM A.O. WHICH HAS NO RELEVANCE TO THE CONCLUSIVE FACTS OF SERVICE OF DEMAND NOTICE BY REGISTERED POST AS DISCUSSED IN THE FORGOING PARAS. (VII) FROM THE RECORDS OF OTHER ASSESSMENT YEARS, IT IS NOTICED THAT THE APPELLANT HAD BEEN ATTENDING TO THE ASSESSMENT PROCEEDINGS AND OTHER MATTER ALL THROUGH THE YEAR 2000 - 2001 (NOTICED FROM CORRESPONDENCES) ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 9 AND WHAT STOPPED APPELLANT OR HIS AR TO GET A COPY OF DEMAND NOTICE AND FILE APPEAL MEMO, IS KNOWN TO THE APPELLANT OR HIS AR ONLY. IN VIEW OF THE ABOVE FACTS, IT CAN BE CONCLUDED THAT THERE IS EVIDENCE IN FAVOUR OF THE REVENUE THAT THE NOTICE OF DEMAND CAN BE TREATED AS DEEMED SERVICE VIDE REGISTERED POST NO. N 6 311 DATED 31.03.2000. THE APPELLANT HAD AMPLE OPPORTUNITIES RIGHT FROM APRIL 2000 ONWARDS TO COLLECT THE COPY OF DEMAND NOTICE FROM THE OFFICE OF THE A.O. THIS WAS DONE BY THE APPELLANT ONLY ON 26.12.2006. THIS INDICATES FAILURE ON THE PART OF THE APPELLAN T IN NOT COLLECTING THE DEMAND NOTICES FROM THE OFFICE OF THE A.O. DESPITE SPECIFIC INTIMATION BY THE A.O. THAT THERE IS DEEMING PROVISIONS FOR SERVICE OF NOTICE OF DEMAND BY THE DEPARTMENT. WHEN THE APPELLANT FILED RECTIFICATION APPLICATION ON 26.04.2000 IN RESPECT OF SAME ASSESSMENT ORDER, THERE IS NO REASON WHY THE APPELLANT OR HIS AR COULDNOT COLLECT A COPY OF DEMAND NOTICE FROM THE OFFICE OF THE A.O. AND FILE APPEAL MEMORANDUM. FINALLY THIS WAS DONE BY THE APPELLANT ON 26.12.2006 AND T HE REASONS FOR THIS DELAY CAN BE BEST KNOWN TO THE APPELLANT OR HIS AR. I, THEREFORE, HOLD THAT THE APPEAL HAS BEEN FILED BEYOND THE PRESCRIBED TIME LIMIT OF SECTION 249(2)(B) OF THE ACT. THERE IS NO PETITION FOR CONDONATION OF DELAY IN FILING OF APPEAL B Y THE APPELLANT NEITHER THE FACTS DISCUSSED HEREINABOVE SUGGEST ANY COGENT REASONS FOR FILING OF APPEAL AFTER LAPSE OF ABOUT SIX YEARS., HENCE, THE APPEAL OF THE APPELLANT IS HEREBY DISMISSED AS INADMISSIBLE. SINCE THE APPEAL IS DISMISSED A S INADMISSIBLE, GROUNDS OF APPEAL ON MERITS ARE NOT ADJUDICATED. THE APPEAL IS DISMISSED. 9. FIRST OF ALL, WE MAY POINT OUT THAT THE MAIN REASON FOR DENIAL OF CONDONATION OF DELAY OF SIX YEARS TAKEN BY THE CIT(A) IS THAT THERE IS NO PETI TION FOR CONDONATION OF DELAY. ON BEING ASKED BY THE BENCH, LD A.R. DID NOT CONTROVERT THIS FACTUAL POSITION THAT THE APPELLANT HAS NOT FILED ANY PETITION SEEKING CONDONATION OF DELAY OF SIX YEARS IN FILING THE APPEAL BEFORE THE CIT(A). HENCE, WE SAFELY PRESUMED THAT THE ASSESSEE HAS NOT FILED ANY CONDONATION PETITION BEFORE THE CIT(A). 10. NOW WE PROCEED TO ADJUDICATE THE LEGAL CONTENTION OF THE APPELLANT THAT THE CIT(A) HAS DISMISSED THE APPEAL FOR WANT OF APPLICATION FOR CONDONATION OF DELAY WITHOUT A NY SHOW CAUSE NOTICE REGARDING NON - SUBMISSION OF APPEAL WITHIN THE PRESCRIBED TIME AND SHOWING HIS INTENTION TO TREAT THE APPEAL AS FILED BEYOND THE TIME LIMIT. LD A.R. DURING THE COURSE OF HEARING BEFORE US, STRESSED ON THE POINT THAT THE CIT(A) DID NOT S HOW CAUSE THE ASSESSEE REGARDING HIS INTENTION TO TREAT THE APPEAL AS FILED AFTER PRESCRIBED TIME LIMIT. ON PERUSAL OF THE IMPUGNED ORDER, AT PAGES 3,4 & 5, WE CLEARLY OBSERVED THAT THE ASSESSEE FILED APPEAL ON 10.1.2007 AND ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 10 THE CIT(A) VIDE HIS LETTER/SHO W CAUSE NOTICE DATED 19.1.2007 INFORMED THE ASSESSEE THAT THE STATUTORY LIMIT OF FILING THE APPEAL BEFORE HIM WAS 30 DAYS FROM THE DATE OF SERVICE OF DEMAND NOTICE AND THE APPEAL WAS FILED AFTER LAPSE OF SIX YEARS, WHICH WAS TREATED AS TIME BARRED AND LIAB LE TO BE DISMISSED. WE ALSO NOTE THAT IN REPLY TO THE SAID NOTICE, THE ASSESSEE SUBMITTED HIS REPLY, WHEREIN, IT WAS CONTENDED THAT THE ORIGINAL DEMAND NOTICE WAS NOT SERVED TILL 25.12.2006 AND DEMAND NOTICE WAS SERVED ON 26.12.2006 AND THEREAFTER THE APP EAL WAS FILED. THE CIT(A) VERIFIED THE SAID CONTENTION OF THE ASSESSEE BY WAY OF ISSUING NOTICE THE AO DATED 22.2.2007 AND THE AO VIDE HIS LETTER DATED 28.2.2007 SUBMITTED HIS REPLY ON THE BASIS OF ASSESSMENT RECORDS. THE CIT(A) PROVIDED THE COPY OF THE REMAND REPORT TO THE ASSESSEE VIDE LETTER DATED 24.1.2011 SEEKING REJOINDER/COMMENT OF THE ASSESSEE ON THE SAME, WHICH WAS REPLIED BY THE ASSESSEE VIDE HIS LETTER DATED 7.2.2011. FROM PAGES 3,4, & 5 OF THE CIT(A) ORDER, WE OBSERVE THAT THE CIT(A) HAS REPR ODUCED SHOW CAUSE NOTICE ISSUED BY HIM, REMAND REPORT OF THE AO AND REJOINDER OF THE ASSESSEE IN TOTO AND, THEREAFTER, PROCEEDED TO ADJUDICATE THE ISSUE OF CONDONATION OF DELAY. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE DISMISS THE CONTENTI ON OF LD A.R. THAT THE CIT(A) DID NOT SHOW CAUSE THE ASSESSEE SHOWING HIS INTENTION REGARDING NON - SUBMISSION OF APPEAL WITHIN THE PRESCRIBED TIME LIMIT AND INFORMED THE ASSESSEE REGARDING DELAY OF SIX YEARS IN FILING THE APPEAL BEFORE HIM. THEREFORE, THIS CONTENTION OF LD A.R. BEING BASELESS IS DISMISSED. 10. LD CIT(A) HAS PLACED RELIANCE ON THE DECISION OF HONBLE JHARKHAND HIGH COURT IN THE CASE OF MILLAN PODDAR (SUPRA) AND HONBLE ALLAHABAD HIGH COURT IN THE CASE OF KISHORILAL MUKUNDILAL, 9 ITR 193 (A LL) WHILE DISMISSING THE APPEAL OF THE ASSESSEE TREATING THE SAME AS INADMISSIBLE. 11. WE FIND THAT IN THE CASE OF MILLAN PODDAR (SUPRA), THE HONBLE HIGH COURT HAS HELD AS UNDER: 17. SO FAR AS DISPUTE WITH RESPECT TO THE INTERPRETATION OF THE 'POST', 'R EGISTERED POST' AND 'SPEED POST' ARE CONCERNED, THE TRIBUNAL HAS CONSIDERED THE ISSUE IN DETAIL. WE WOULD LIKE TO QUOTE THE RELEVANT PARAGRAPHS FROM THE ORDER OF THE TRIBUNAL, WHICH ARE AS UNDER : - 11. SECTION 27 OF THE GENERAL CLAUSES ACT: SECTION 27 OF T HE GENERAL CLAUSES ACT, 1897, WORDED ON THE LINES OF SECTION 26 OF THE INTERPRETATION ACT, 1889 (UK), DEALS WITH THE 'MEANING OF SERVICE BY POST' AND SAYS THAT WHERE ARTY CENTRAL ACT OR REGULATION AUTHORIZES OR REQUIRES ANY DOCUMENT TO BE SERVED BY POST, T HEN UNLESS A DIFFERENT INTENTION APPEARS, THE SERVICE SHALL BE DEEMED TO BE EFFECTED BY PROPERLY ADDRESSING, PREPAYING 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 ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 11 POST. IT IS EVIDENT ON BARE PERUSAL OF SECTION 27 OF THE GENERAL CLAUSES ACT THAT IT CREATES A LEGAL FICTION BY WHICH THE SERVICE OF A DOCUMENT IS DEEMED TO BE EFFECTED ONCE THE SAID DOCUMENT I S PROPERLY ADDRESSED, PREPAID AND POSTER BY REGISTERED POST. THE SAID LEGAL FICTION CAN BE DISPLACED ONLY BY PROVING THE CONTRARY. THE AFORESAID LEGAL FICTION FOLLOWS AUTOMATICALLY ON THE FULFILLMENT OF THE CONDITIONS PRECEDENT FOR ATTRACTING THE LEGAL FIC TION. IT IS NOT THE CASE OF THE ASSESSEE THAT THE ENVELOPE CONTAINING THE SAID NOTICE WAS NOT PROPERLY ADDRESSED OR PREPAID. ACCORDING TO THE ASSESSEE, THE ONLY INGREDIENT OF SECTION 27 WHICH IS NOT SATISFIED IS THAT THE IMPUGNED NOTICE WAS SENT BY 'SPEED POST' AND THEREFORE SECTION 27 OF THE GENERAL CLAUSES ACT WOULD NOT APPLY AS IT APPLIES TO NOTICES SENT BY 'REGISTERED POST' ALONE. THE ISSUE THAT ARISES FOR CONSIDERATION IS THEREFORE WHETHER NOTICE BY REGISTERED POST INCLUDES NOTICE BY SPEED POST ALSO WI THIN THE MEANING OF SECTION 27 OF THE GENERAL CLAUSES ACT. IT MAY BE NOTEDTHAT SECTION 27 DOES NOT REQUIRE THE MAIL TO BE SENT BY 'REGISTERED POST TOGETHER WITH ACKNOWLEDGMENT DUE (AD)' AND HENCE 'AD' CANNOT BE READ AS A REQUIREMENT FOR THE APPLICABILITY O F SECTION 27. WHAT IS REQUIRED BY SECTION 27 IS POSTING OF DOCUMENT BY 'REGISTERED POST.' 12. AS LORD STEYN SAID, IN LAW, CONTEXT IS EVERYTHING. IN MAYAWATI V. CIT, (2009) 222 CTR 117 (DELHI), THE CONTEXT IN WHICH SECTION 27, GENERAL CLAUSES ACT HAS BEEN E NACTED HAS BEEN EXPLAINED THUS: 'WHEREVER SERVICE OF A NOTICE IS ESSENTIAL OR CRITICAL, EXPERIENCE SHOWS THAT IT IS A MOST DIFFICULT TASK TO ACHIEVE. IT IS FOR THIS REASON THAT SECTION 27 OF THE GENERAL CLAUSES ACT CREATES A STATUTORY PRESUMPTION TO THE EF FECT THAT IF A LETTER IS PROPERLY ADDRESSED, IT MUST BE DEEMED TO HAVE BEEN SERVED.' IT IS TO OVERCOME THE INSURMOUNTABLE TASK OF PROVING SERVICE OF NOTICE IN SUCH DIFFICULT SITUATIONS THAT SECTION 27 HAS BEEN ENACTED TO PROVIDE FOR STATUTORY PRESUMPTION O F SERVICE IN A CASE WHERE THE NOTICE IS SENT BY REGISTERED POST AS THE NOTICE SENT BY REGISTERED POST WOULD IN ALL PROBABILITY BE DELIVERED TO THE ADDRESSEE'. THE CONTEXT IN WHICH THE TERM 'REGISTERED POST' HAS BEEN USED IN SECTION 27 CAN BEST BE ASCERTAIN ED BY REFERENCE TO THE OBJECT IT SEEKS TO ACHIEVE, I.E., TO ENSURE SAFE DELIVERY OF THE MAIL AND NOTHING ELSE. WHAT HAS THEREFORE TO BE SEEN IS WHETHER THE CONTEXT IN WHICH THE TERM 'REGISTERED POST' HAS BEEN USED IN SECTION 27 WOULD ALSO INCLUDE NOTICE BY 'SPEED POST'. 13. MEANING OF 'REGISTERED POST': THE TERM 'REGISTERED POST' HAS NOT BEEN STATUTORILY DEFINED. WE HAVE THEREFORE TO TURN TO ITS ORDINARY MEANING. IN COMMON PARLANCE, 'REGISTERED' MEANS RECORDED AS IN A REGISTER OR BOOK WHILE 'POST' MEANS AN ESTABLISHED SYSTEM FOR COLLECTION AND DELIVERY OF MAIL. THE ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 12 TERM 'REGISTERED POST' AS USED IN SECTION 27 OF THE GENERAL CLAUSES ACT, 1897 HAS A GENERIC MEANING, WOULD THEREFORE EMBRACE WITHIN ITSELF THE ENTIRE CLASS OF POSTS/MAILS UNDER AN ESTABLISHED SYST EM IN WHICH THEIR RECEIPT AND DELIVERY ARE RECORDED WITH A VIEW TO ASSURE SAFE DELIVERY. THE TERM 'REGISTERED' IN THE CONTEXT OF POST/MAIL HAS BEEN DEFINED AT PAGE 2528 OF THE SECOND VOLUME OF 'THE NEW SHORTER OXFORD ENGLISH DICTIONARY' (EDITED BY LESLEY B ROWN) (1993 ED.) PUBLISHED BY CLARENDON PRESS, OXFORD, AS FOLLOWS: 'THE TERM 'REGISTERED' MEANS 'RECORDED, OFFICIALLY SET DOWN, ENTERED IN A REGISTER, SPEC. (OF A POSTAL ITEM) RECORDED AT THE POINT OF DISPATCH. AND INDEMNIFIED AGAINST LOSS OR DAMAGE.' AT P AGE 964 OF BLACK'S LAW DICTIONARY (SEVENTH ED.), 'REGISTERED MAIL' IS DEFINED AS THE 'MAIL THAT THE US POSTALSERVICE RECORDS AT THE TIME OF MAILING AND AT EACH POINT ON ITS ROUTE SO AS TO GUARANTEE SAFE DELIVERY.' THUS, IT CAN SAFELY BE CONCLUDED THAT 'REG ISTERED POST' IS THE MAIL THAT IS REGISTERED BY THE POST/MAIL OFFICE WHEN SENT IN ORDER TO ASSURE SAFE DELIVERY. 14. IT IS WELL ESTABLISHED THAT IT IS THE SUBSTANCE THAT GIVES MEANING TO A WORD OR PHRASE. A PHRASE OR WORD WITHOUT SUBSTANCE WOULD BE MEANING LESS. LET US THEREFORE HAVE A LOOK AT THE SUBSTANCE IN THE TERM 'REGISTERED POST'. THERE ARE TWO PRINCIPAL ATTRIBUTES OF REGISTERED POST: ONE, THERE IS ESTABLISHED SYSTEM IN WHICH RECEIPT OF THE MAIL IS RECORDED; AND TWO, MOVEMENT OF SUCH MAIL AS ALSO ITS DELIVERY IS RECORDED. IF THE AFORESAID ATTRIBUTES OF REGISTERED POST ARE PRESENT IN ANY OTHER CLASS OF MAIL OR POST FORMING PART OF AN ESTABLISHED SYSTEM, THAT MAIL OR POST WOULD, IN SUBSTANCE, BE REGISTERED POST NOTWITHSTANDING THE NAME BY WHICH IT MAY BE CALLED. 'SPEED POST' IS A PART OF ESTABLISHED SYSTEM OF DELIVERY IN WHICH THE RECEIPT OF MAIL AS ALSO ITS MOVEMENT AND DELIVERY ARE RECORDED - . 'SPEED POST' HAS ALL THE PRINCIPAL ATTRIBUTES OF 'REGISTERED POST'. LIKE 'REGISTERED POST', RECEIPT OF MAIL BY ' SPEED POST' IS ALSO RECORDED, ITS MOVEMENT AS ALSO DELIVERY IS TRACKED, AND THE LOSS ON ACCOUNT OF DELAY IN DELIVERY OR DAMAGE TO OR LOSS OF ARTICLE IS INDEMNIFIED. THE MAJOR DIFFERENCES BETWEEN 'REGISTERED POST' AND 'SPEED POST ARE THAT WHILE 'SPEED POST' IS DELIVERED WITH SPEED, DELIVERY OF REGISTERED POST TAKES MUCH LONGER TIME AND SECONDLY WHILE THE FACILITY OF 'REGISTERED POST' IS AVAILABLE AT ALL PLACES AND THUS HAS WIDER REACH, THE FACILITY OF 'SPEED POST' DOES NOT HAVE SUCH A WIDER REACH IN THIS COU NTRY. IT IS IN VIEW OF THE INHERENT ADVANTAGES OF ASSURED AND QUICK DELIVERY OF MAIL THROUGH SPEED POST THAT THE GOVERNMENT DEPARTMENTS, COURTS, CORPORATE ENTERPRISES AND PEOPLE IN GENERAL PREFER TO SEND THEIR MAILS/ARTICLES BY SPEED POST AND COURIER SERVI CES BECAUSE THEY, APART FROM HAVING ALL THE MAJOR ADVANTAGES OF REGISTERED POST, HAVE ALSO THE ADVANTAGE OF QUICK DELIVERY. SINCE ALL PRINCIPAL ATTRIBUTES OF 'REGISTERED POST' ARE INHERENTLY PRESENT IN 'SPEED POST', BOTH OF THEM, IN ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 13 SUBSTANCE, BELONG TO TH E SAME GENUS. WE THEREFORE HOLD THAT THE TERM 'REGISTERED POST' IN SECTION 27 OF THE GENERAL CLAUSES ACT, 1897 TAKES WITHIN ITS SWEEP 'SPEED POST'. IN THIS VIEW OF THE MATTER, NOTICE BY REGISTERED POST WOULD ALSO COVER THE NOTICE SENT BY SPEED POST BY THE AO. 22. STATUTORY PRESUMPTION OF SERVICE U/S 27: WE SHALL NOW DEAL WITH THE OBSERVATION OF THE LEARNED CIT(A) THAT RECEIPT SIGNIFYING DISPATCH OF MAIL BY POST IS NO INDICATION OF SERVICE IN THE ABSENCE OF ACKNOWLEDGEMENT OF NOTICE BY THE ASSESSEE. WE ARE U NABLE TO ENDORSE THE AFORESAID VIEW FOR THE REASON THAT SECTION 27 OF THE GENERAL CLAUSES ACT CREATES A LEGAL FICTION BY WHICH THE SERVICE OF A DOCUMENT IS DEEMED TO BE EFFECTED ONCE THE SAID DOCUMENT IS POSTED AFTER PROPERLY ADDRESSING AND PREPAYING BY RE GISTERED POST IRRESPECTIVE OF WHETHER ANY ACKNOWLEDGEMENT DUE IS RECEIVED FROM THE ADDRESSEE OR NOT. FOR RAISING THE STATUTORY PRESUMPTION OF SERVICE U/S 27, WHAT IS RELEVANT IS WHETHER THE NOTICE SOUGHT TO BE SERVED, WAS SENT AFTER PROPERLY ADDRESSING AND PREPAYING BY REGISTERED POST OR SPEED POST TO THE ADDRESSEE IRRESPECTIVE OF WHETHER THE RECEIPT OF NOTICE WAS ACKNOWLEDGED BY THE SENDER OR NOT. IN THIS CONNECTION, WE MAY FRUITFULLY REFER TO A FEW JUDGMENTS OF THE HON'BLE SUPREME COURT. 23. IN HARCHARAN SINGH V. SHIV RANI, AIR 1981 SC 1284, THE HON'BLE SUPREME COURT HAS OBSERVED AS UNDER: ''SEC. 27 OF THE GENERAL CLAUSES ACT, 1897 DEALS WITH THE TOPIC - 'MEANING OF - SERVICE BY POST' AND SAYS THAT WHERE ANY CENTRAL ACT OR REGULATION AUTHORIZES OR REQUIRES ANY DOCUMENT TO BE SERVED BY POST, THEN UNLESS A DIFFERENT INTENTION APPEARS, THE SERVICE SHALL BE DEEMED TO BE EFFECTED BY PROPERLY ADDRESSING, PREPAYING AND POSTING IT BY REGISTERED POST, A LETTER CONTAINING THE DOCUMENT, AND UNLESS THE CONTRARY IS PROVE D, TO HAVE BEEN EFFECTED AT THE TIME AT WHICH THE LETTER WOULD BE DELIVERED IN THE ORDINARY COURSE OF POST. THE SECTION THUS RAISES A PRESUMPTION OF DUE SERVICE OR PROPER SERVICE IF THE DOCUMENT SOUGHT TO BE SERVED IS SENT BY PROPERLY ADDRESSING, PREPAYING AND POSTING BY REGISTERED POST TO THE ADDRESSEE AND SUCH PRESUMPTION IS RAISED IRRESPECTIVE OF WHETHER ANY ACKNOWLEDGEMENT DUE IS RECEIVED FROM THE ADDRESSEE OR NOT. IT IS OBVIOUS THAT WHEN THE SECTION RAISES THE PRESUMPTION THAT THE SERVICE SHALL BE DEEM ED TO HAVE BEEN EFFECTED IT MEANS THE ADDRESSEE TO WHOM THE COMMUNICATION IS SENT MUST BE TAKEN TO HAVE KNOWN THE CONTENTS OF THE DOCUMENT SOUGHT TO BE SERVED UPON HIM WITHOUT ANYTHING MORE. SIMILAR PRESUMPTION IS RAISED UNDER ILLUSTRATION (F) TO S. 114 OF THE INDIAN EVIDENCE ACT WHEREUNDER IT IS STATED THAT THE COURT MAY PRESUME THAT THE, COMMON COURSE OF BUSINESS HAS BEEN FOLLOWED IN A PARTICULAR CASE, THAT IS TO SAY, WHEN A LETTER IS SENT BY POST BY ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 14 PREPAYING AND PROPERLY ADDRESSING IT THE SAME HAS BEEN RECEIVED BY THE ADDRESSEE. UNDOUBTEDLY THE PRESUMPTIONS BOTH UNDER S. 27 OF THE GENERAL CLAUSES ACT AS WELL AS UNDER SECTION 114 OF THE EVIDENCE ACT ARE REBUTTABLE BUT IN THE ABSENCE OF PROOF TO THE CONTRARY THE PRESUMPTION OF PROPER SERVICE OR EFFECTIVE S ERVICE ON THE ADDRESSEE WOULD ARISE. 24. IN D VINODSHIVAPPA V. NANDA BELIAPPA, AIR 2006 SC 2179, THE SUPREME COURT HAS HELD AS UNDER: 'IF A NOTICE IS ISSUED AND SERVED UPON THE DRAWER OF THE CHEQUE, NO CONTROVERSY ARISES. SIMILARLY IF THE NOTICE IS REFUSED BY THE ADDRESSEE, IT MAY BE PRESUMED TO HAVE BEEN SERVED. THIS IS ALSO NOT DISPUTED. THIS LEAVES US WITH THE THIRD SITUATION WHERE THE NOTICE COULD NOT BE SERVED ON THE ADDRESSEE FOR ONE OR THE OTHER REASON, SUCH AS HIS NON AVAILABILITY AT THE TIME OF DEL IVERY, OR PREMISES REMAINING LOCKED ON ACCOUNT OF HIS HAVING GONE ELSEWHERE ETC. ETC. IF IN EACH SUCH CASE THE LAW IS UNDERSTOOD TO MEAN THAT THERE HAS BEEN NO SERVICE OF NOTICE, IT WOULD COMPLETELY DEFEAT THE VERY PURPOSE OF THE ACT.' 25. IN C.C. ALAVI HA JI V. PALAPETTYMUHAMMED (2007) 6 SCC 555, A BENCH OF THREE JUDGES OF THE HON'BLE SUPREME COURT, IN THE CONTEXT OF SERVICE OF NOTICE SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, HAS OBSERVED THUS,: '14. SEC. 27 GIVES RISE TO A PRESUMPTION THAT SERVICE OF NOTICE HAS BEEN EFFECTED WHEN IT IS SENT TO THE CORRECT ADDRESS BY REGISTERED POST. IN VIEW OF THE SAID PRESUMPTION, WHEN STATING THAT A NOTICE HAS BEEN SENT BY REGISTERED POST TO THE ADDRESS OF THE DRAWER, IT IS UNNECESSARY TO FURTHER AVER IN THE COMPLAIN T THAT IN SPITE OF THE RETURN OF THE NOTICE UNSERVED, IT IS DEEMED TO HAVE BEEN SERVED OR THAT THE ADDRESSEE IS DEEMED TO HAVE KNOWLEDGE OF THE NOTICE. UNLESS AND UNTIL THE CONTRARY IS PROVED BY THE ADDRESSEE, SERVICE OF NOTICE IS DEEMED TO HAVE BEEN EFFEC TED AT THE TIME AT WHICH THE LETTER WOULD HAVE BEEN DELIVERED IN THE ORDINARY COURSE OF BUSINESS. THIS COURT HAS ALREADY HELD THAT WHEN A NOTICE IS SENT BY REGISTERED POST AND IS RETURNED WITH A POSTAL ENDORSEMENT 'REFUSED' OR 'NOT AVAILABLE IN THE HOUSE' OR 'HOUSE LOCKED OR 'SHOP CLOSED OR 'ADDRESSEE NOT IN STATION', DUE SERVICE HAS TO BE PRESUMED. [VIDE JAGDISH SINGH VS. NATTHU SINGH (1992) I SCC 647; SLATE OF MP. VS. HIRALAL (1996) 7 SCC 523 AND V. RAJAKUMARI VS. P. SUBBARAMA NAIDU (2004) 8 SCC 774]. IT IS, THEREFORE, MANIFEST THAT IN VIEW OF THE PRESUMPTION AVAILABLE UNDER S. 27 OF THE ACT, IT IS NOT NECESSARY TO AVER IN THE COMPLAINT UNDER S. 138 OF THE ACT THAT SERVICE OF NOTICE WAS EVADED BY THE ACCUSED OR THAT THE ACCUSED HAD A ROLE TO PLAY IN THE RE TURN OF THE NOTICE UNSERVED.' 26. THE AFORESAID JUDGMENTS LAY DOWN IN NO UNCERTAIN TERMS THAT, IN TERMS OF SECTION 27 OF THE GENERAL CLAUSES ACT, ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 15 UNLESS AND UNTIL THE CONTRARY IS PROVED BY THE. ADDRESSEE, SERVICE OF NOTICE IS DEEMED TO BE EFFECTED AT THE T IME AT WHICH THE LETTER WOULD HAVE BEEN DELIVERED IN THE ORDINARY COURSE OF BUSINESS WHEN IT IS SENT TO THE ADDRESSEE AT HIS ADDRESS BY REGISTERED POST. DETAILS GIVEN IN THE ASSESSMENT ORDER AS ALSO RECEIPT OF SPEED POST MAKE IT CLEAR THAT ALL THE CONDITIO NS STIPULATED BY SECTION 27 OF THE GENERAL CLAUSES ACT ARE SATISFIED AND HENCE SERVICE OF THE IMPUGNED NOTICE WOULD BE DEEMED TO HAVE BEEN EFFECTED WELL BEFORE THE EXPIRY OF TIME LIMIT STIPULATED BY SECTION 143(2) AS THE SAID NOTICE WAS SENT SEVERAL MONTHS BEFORE THE EXPIRY OF PERIOD STIPULATED BY THE TIME PROVISION OF SECTION 143(2). 27. NON - REBUTTAL OF STATUTORY PRESUMPTION: THE LEGAL FICTION CREATED BY SECTION 27 OF THE GENERAL CLAUSES ACT BY WHICH SERVICE IS DEEMED TO HAVE BEEN EFFECTED WOULD CONTINUE T O BE OPERATIVE UNLESS THE PARTY DENYING THE SERVICE PROVES THAT IT WAS NOT REALLY SERVED AND THAT HE WAS NOT RESPONSIBLE FOR SUCH THE ABSENCE OF PROOF BY THE PARTY DENYING THE SERVICE THAT HE HAS NOT RECEIVED IT OR THAT HE WAS NOT RESPONSIBLE FOR ITS NON - S ERVICE, THE LEGAL FICTION CREATED BY SECTION 217 OF THE GENERAL CLAUSES ACT CANNOT BE DISPLACED. IN V RAJA KUMARI V. P SUBBARARNA NAIDU, AIR 2005 SC 109, THEHON'BLESUPRME COURT HAS, IN THE CONTEXT OF SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, HELD AS U NDER: 'NO DOUBT SECTION 138 OF THE ACT DOES NOT REQUIRE THAT THE NOTICE SHOULD BE GIVEN ONLY BY 'POST'. NONETHELESS THE PRINCIPLE INCORPORATED IN SECTION (QUOTED ABOVE) CAN PROFITABLY BE IMPORTED IN A CASE WHERE THE SENDER HAS DISPATCHED THE NOTICE BY POST WITH THE CORRECT ADDRESS WRITTEN ON IT. THEN IT CAN BE DEEMED TO HAVE BEEN SERVED ON THE SENDEE UNLESS HE PROVES THAT IT WAS NOT REALLY SERVED AND THAT HE WAS NOT RESPONSIBLE FOR SUCH NON - SERVICE. ANY OTHER INTERPRETATION CAN LEAD TO A VERY TENUOUS POSITI ON AS THE DRAWER OF THE CHEQUE WHO IS LIABLE TO PAY THE AMOUNT WOULD RESORT TO THE STRATEGYOF SUBTERFUGE BY SUCCESSFULLY AVOIDING THE NOTICE.' 18. IN THE CASE BEFORE US, THE ASSESSEE HAS LED NO EVIDENCE TO PROVE THAT THE IMPUGNED NOTICE WAS NOT RECEIVED BY HIM OR THAT HE WAS NOT RESPONSIBLE FOR ITS NON - SERVICE. THE DETAILS GIVEN BY THE AO IN THE ASSESSMENT ORDER INCLUDED NOT ONLY THE RECEIPT NO. UNDER WHICH SPEED POST WAS SENT BUT ALSO THE TRACKINGCODE. PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THE AO HAD APPRISED THE ASSESSEE OF THE AFORESAID FACTS IN THE COURSE OF ASSESSMENT PROCEEDINGS ALSO. IT WAS THEREFORE FOR THE ASSESSEE TO ADDUCE RELEVANT EVIDENCE TO PROVE THAT THE SAID NOTICE WAS NOT SERVED UPON HIM AND ALSO THAT HE WAS NOT RESPONSIBLE FOR ITS NON - SERVICE. HOWEVER, THE ASSESSEE HAS NOT ADDUCED ANY EVIDENCE TO PROVE SO IN SPITE OF THE FACT THAT HE COULD HAVE DONE SO WITH THE HELP OF DETAILS ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 16 MADE AVAILABLE IN THE ASSESSMENT ORDER AND ALSO IN THE NOTICE ISSUED TO HIM IN THE COURSE OF THE ASSESSMENT PRO CEEDINGS. ADDITIONALLY, THE AO HAS VERIFIED HIS RECORDS AND FOUND THAT THE IMPUGNED NOTICE WAS NOT RECEIVED BACK IN HIS OFFICE. IN THIS VIEW OF THE MATTER, THE LEGAL FICTION BY WHICH THE SERVICE OF THE IMPUGNED NOTICE IS DEEMED TO BE EFFECTED ON THE ASSESS EE STANDS ON A MUCH STRONGER FOOTING. WE ARE IN FULL AGREEMENT WITH THE REASONS GIVEN BY THE TRIBUNAL WITH RESPECT TO THE INTERPRETATION GIVEN BY THE TRIBUNAL ON VARIOUS ISSUES DECIDED BY THE TRIBUNAL WHICH WE HAVE QUOTED ABOVE. 18. IN VIEW OF THE REASONS DISCUSSED ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE NOTICE UNDER SECTION 282 THE ACT OF 1961, CAN BE SENT BY POST INCLUDING 'ORDINARY POST','REGISTERED POST' AS WELL AS 'SPEED - POST'. THE POST IS A GENERIC WORD AND ITS SPECIES ARE 'ORDINARY POST','RE GISTERED POST', 'SPEED - POST' AND 'UNDER CERTIFICATE OF POSTING' ETC. LEARNED TRIBUNAL RIGHTLY RELIED UPON PAGE 102 OF 'MAXWELL ON THE INTERPRETATION OF STATUTES' (TWELFTS ED. BY P.ST. J. LANGAN), WHEREIN IT HAS BEEN STATED THAT THE ' LANGUAGE OF THE STATUTE IS GENERALLY EXTENDED TO NEW THINGS WHICH WERE NOT KNOWN AND COULD NOT HAVE BEEN CONTEMPLATED WHEN THE ACT WAS PASSED, WHEN THE ACT DEALS WITH A GENUSAND THE THING WHICH AFTERWARDS COMES INTO EXISTENCE WAS A SPECIES OF IT. ' THE SPEED POST IS A NEW MODE OF SENDING POST, AND THEREFORE, THIS NEW POSTAL MODE IF IS NOT MENTIONED IN STATUTE SPECIFICALLY, EVEN THEN BECAUSE OF ABOVE REASON THAT SERVICE BY SPEED POST IS INCLUDED IN GENERIC WORD 'POST' OR 'REGISTERED POST'. 19. IN VIEW OF ABSENCE OF ANY REBUTTAL, WE DO NOT FIND ANY REASON TO HOLD THAT NOTICE UNDER SECTION 143 (2) OF THE ACT OF 1961 WAS NOT SERVED UPON THE ASSESSEE IN TIME. 12. WE ALSO OBSERVE THAT U NDER SECTION 246A OF THE ACT, APPEALS HAVE TO BE FILED BEFORE THE CIT(A), WITHIN A PERIOD OF 30 DAYS FROM THE DATE OF SERVICE OF ORDER APPEALED AGAINST. FOR CONDONING THE DELAY IN FILING THE APPEAL, IT MUST BE PROVED BEYOND DOUBT THAT THE ASSESSEE WAS DILIGENT AND NOT GUILTY OF NEGLIGENCE WHATSOEVER. DUE DILIGENCE AND CAUTION ARE THE ESSENTIAL REQUIREMENT S. PERUSAL OF THE IMPUGNED ORDER IN ENTIRETY AT THE BACKDROP OF THE RATIO LAID DOWN IN THE DECISION RENDERED BY THE HON'BLE JHARKHAND HIGH COURT IN THE CASE OF MILLAN PODDAR (SUPRA) EXTRACTED HEREINABOVE, LEAD US TO THE CONCLUSION THAT THE DELAY OF SIX Y EARS IN FILING THE APPEAL BEFORE THE CIT(A) COULD NOT BE CONDONED. HENCE, WE AFFIRM THE ORDER OF THE CIT(A) AND DISMISS THE GROUNDS OF APPEAL OF THE ASSESSEE. ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 17 11 . FROM THE ABOVE OBSERVATIONS OF THE COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES QUANTUM APPEALS AS WELL AS THE ORDERS OF AUTHORITIES BELOW, WE FIND THAT THE ASSESSEE HAS NEITHER FILED ANY CONDONATION PETITION BEFORE THE CIT(A) NOR ANY COGENT REASONS SUBSTANTIATING THE DELAY ABOUT SIX YEARS IN FILING THE APPEAL S HAS DULY BEEN EXPLAINED BY ASS ESSEE, RESULTING INTO DISMISSAL OF APPEALS OF THE ASSESSEE FOR THE ABOVE YEARS UNDER CONSIDERATION BY THE CIT(A) ON THE GROUND OF DELAY. IN OUR OPINION, IT WAS, THEREFORE, FOR THE ASSESSEE TO ADDUCE RELEVANT EVIDENCE FOR CONDONATION OF DELAY IN FILING THE APPEALS. T HE CIT(A) HAS RIGHTLY PLACED RELIANCE ON THE DECISION OF HONBLE JHARKHAND HIGH COURT IN THE CASE OF MILAN PODDAR VS. CIT, 357 ITR 619 WHICH IS APPLICABLE TO THE CASE IN HAND. WE HAVE CONFIRMED THE ORDER OF THE CIT(A) IN QUANTUM APPEALS FILED BY THE ASSESSEE ON THE GROUND OF CONDONATION OF DELAY AND, THEREFORE, THE ADDITION AGITATED BY THE ASSESSEE HAS NOT BEEN ADJUDICATED . SINCE THE LEVY OF PENALTY HAS BEEN IMPOSED IN PURSUANCE TO QUANTUM ADDITION, THEREFORE, WE DO NOT FIND ANY REASON TO INTERFE RE IN THE FINDINGS RECORDED BY THE CIT(A) IN DISMISSING THE IMPUGNED PENALTY APPEALS OF THE ASSESSEE ON THE GROUND OF DELAY OF SIX YEARS IN FILING THE APPEALS AND WE CONFIRM THE SAME. THUS, THE GROUND OF ASSESSEE WITH REGARD TO NON - CONSIDERATION OF CONDONA TION OF DELAY BY THE CIT(A) IS DISMISSED. 12 . NOW, THE NEXT GROUND RAISED BY THE ASSESSEE IS WITH REGARD TO THE FACT THE DEPARTMENT HAS NOT FOLLOWED THE CONDITIONS OF SECTION 127(1) OF THE ACT. ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 18 13 . THIS ISSUE HAS BEEN DEALT WITH IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 1998 - 99 & 1999 - 2000 IN ITA NOS.48 &49/PAT/2015 VIDE OUR ORDER OF EVEN DATE. THE RELEVANT OBSERVATIONS ARE AS UNDER: 4. GROUND NO.2 IS COMMON TO BOTH THE APPEALS THAT THE CIT(A) OUGHT TO HAVE ACCEPTED THE FACT THAT THE CONDITIONS OF SECTION 127(1) WAS NOT FOLLOWED BY THE DEPARTMENT, SO ANY ORDER PASSED WITHOUT PROPER JURISDICTION IS VOID AB - INITIO AND HAVE NO LEGAL EFFECT. 5. LD A.R. OF THE ASSESSEE SUBMITTED THAT NO ORDER HAS BEEN PASSED U/S.127 OF THE INCOME TAX ACT FOR TRANSFER AN D CENTRALISATION OF THESE RELEVANT APPEALS AND SAID APPROVAL IS MANDATORY TO BE FOLLOWED. LD A.R. VEHEMENTLY POINTED OUT THAT WITHOUT FOLLOWING PROCEDURE AND CONDITIONS LAID DOWN IN SECTION 127(1) OF THE ACT, THE IMPUGNED ASSESSMENT ORDERS ARE TO BE CONSI DERED AS PASSED WITHOUT HAVING PROPER JURISDICTION AND THUS, SAME ARE VOID AB - INITIO HAVING NO LEGAL EFFECT AGAINST THE ASSESSEE. THEREFORE, ASSESSMENT ORDERS MAY KINDLY BE QUASHED ONLY ON THIS SOLE LEGAL REASON. 6. REPLYING TO ABOVE, LD D.R. SUBMITTED A COPY OF THE ORDER DATED 15.7.1999 PASSED U/S.127 OF THE ACT, WHEREIN, CASES OF 79 ASSESSEES/ENTITIES HAVE BEEN TRANSFERRED FOR THE PURPOSE OF CO - ORDINATED AND CONSOLIDATED INVESTIGATION AND ASSESSMENT, COPY OF WHICH WAS ALSO PROVIDED TO THE ASSESSEES REPR ESENTATIVE BEFORE THE BENCH. 7. ON BEING ASKED BY THE BENCH, LD A.R., IN ALL FAIRNESS, SUBMITTED THAT TILL DATE, THE ASSESSEE HAS NO INFORMATION REGARDING THIS ORDER PASSED U/S.127 OF THE ACT DATED 15.7.1999. THEREFORE, THIS LEGAL GROUND IS RAISED AND AG ITATED BY THE ASSESSEE. 8. ON CAREFUL CONSIDERATION OF THE RIVAL SUBMISSIONS, WE ARE SATISFIED THAT THE DEPARTMENT HAS COMPLIED WITH THE MANDATORY CONDITIONS AND PROCEDURES LAID DOWN IN SECTION 127(1) OF THE ACT FOR CENTRALISING AND TRANSFERRING THE CAS E FOR THE PURPOSE OF COORDINATED AND CONSOLIDATED INVESTIGATION AND ASSESSMENT. THEREFORE, THIS GROUND OF THE ASSESSEE BEING DEVOID ON MERITS IS DISMISSED FOR BOTH THE ASSESSMENT YEARS. 14 . FOLLOWING THE PRECEDENT, WE DISMISS THIS GROUND OF ASSESSEE FOR ALL THE FOUR ASSESSMENT YEARS UNDER CONSIDERATION. 15 . T HE GROUNDS RAISED BY THE ASSESSEE IN OTHER APPEALS I.E. IN ITA NO. 46 TO 48/PAT/2015 FOR THE ASSESSMENT YEARS 1992 - 1993, 1994 - 1995 & 1997 - 1998 AND ITA NO.43/PAT/2015 FOR THE ASSESSMENT YEAR 1997 - ITA NO S . 43 TO 44 & 46 TO 48 / PAT /201 5 19 1998(H UF) ARE IDENTICAL TO THE GROUND S DECIDED BY US IN ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 1991 - 1992 IN ITA NO.44/PAT/2015 , WHEREIN WE HAVE DISMISSED BOTH THE GROUNDS OF APPEAL OF THE ASSESSEE . SINCE, THE PRESENT APPEALS OF THE ASSESSEE BEING IDENTICAL TO THE ABOVE APPEAL OF THE ASSESSEE , THEREFORE, OUR OBSERVATIONS MADE IN THE ABOVE APPEAL SHALL APPLY MUTATIS MUTANDIS TO THE GROUNDS RAISED IN THESE APPEAL S I.E. ITA NO S . 46 TO 48 /PAT /201 5 FOR THE ASSESSMENT YEAR S 1992 - 1993, 1994 - 1995 & 1997 - 1998 AND ITA NO. 43/PAT/2015 FOR THE ASSESSMENT YEAR 1997 - 1998(HUF) . ACCORDINGLY, THESE APPEALS OF THE ASSESSEE ARE DISMISSED. 16 . IN THE RESULT, ALL APPEAL S OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN PURSUANCE WITH RULE 34/4 OF ITAT RULES, 1963 BY PUTTING THE C OPY OF THE SAME ON NOTICE BOARD ON 26 /07/2019 AT PATNA. SD/ - ( C.M.GARG ) S D/ - ( L.P.SAHU ) JUDICIAL MEMBER ACCOUNTANT MEMBER PATNA ; DATED 26 / 0 7 /201 9 PKM , S R.P.S. COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) INCOME TAX APPELLATE TRIBUNAL , PATNA 1. THE AP PELLANT - 2. THE RESPONDENT - 3. THE CIT(A), 4. CIT 5. DR, ITAT, PATNA 6. GUARD FILE. //TRUE COPY//