IT : 'Speed Post' though not mentioned in Statute specifically, even then it is valid because service by Speed Post is included in generic word "Post" or "Registered Post"
FACTS
• For the assessment year 2006-07, assessee's case was selected for scrutiny and a notice under section 143(2) was issued by speed post, fixing the date for compliance but no body appeared on behalf of the assessee.
• Thereafter, in response to a subsequent notice issued under section 142(1), one person without noting attendance appeared and filed photocopy of returns, computation of Income, P&L Account and Balance Sheet. Further, the assessee's representative filed reply for dropping of case since notice under section 143(2) was not served within statutory period. However, the Assessing Officer held that notice was duly served and consequently he passed the assessment order and also ordered for initiation of penalty
proceedings under sections 271[1] [b] & 271 [1] [c].
• Commissioner (Appeals) allowed the appeal of assessee filed against the assessment order only on the ground that notice under section 143(2) was not served within the stipulated period. He, however, in view of favourable decision on question of law, did not choose to decide other issues with respect to the addition made by the Assessing Officer. Thereafter, Revenue preferred appeal only on one ground obviously, for the reason that the Commissioner (Appeals) allowed the appeal of the assessee only on one issue relating to the mandatory service of notice under section 143(2).
• The ITAT, by a detailed order held that notice under section 143(2) was duly served.
• Thereafter, the assessee preferred appeal before the High Court which was admitted for hearing on following substantial questions of law:-
(a) Whether the Tribunal was right in arriving at the conclusion that the notice under section 143(2) deemed to have been served upon the assessee in spite of the fact that no postal receipt of sending the notice by speed post was before the Assessing Officer and the Tribunal?
(b) Whether the Tribunal was right in rejecting the contention of the assessee on merits about the correctness of addition made by the Assessing Officer only on the ground that since Commissioner (Appeals) set aside the assessment order on the ground of jurisdiction and, therefore, without filing any cross-objection or appeal in the matter where the order passed by the Commissioner (Appeals) was in favour of the assessee, the Tribunal had no jurisdiction to address the issue about the correctness of addition made by the Assessing Officer?
HELD
• In the instant case, a notice under section 143(2) was alleged to have been sent by speed post and this fact was not in dispute that notice was sent by "speed post" and, therefore, notice was in accordance with law under section 282 (1).
• As regards holding by the Tribunal that the service was valid, it was noted that in the order-sheet dated 24-10-2007 name and address of the assessee was mentioned and 'wrong address' was not the plea of the assessee. Therefore, Department sent the notice under section 143(2) to the assessee on the assessee's address, and that too through Speed Post which was more reliable mode and therefore, it was required to be presumed that notice was delivered to the addressee.
• The notice sent through "Speed-post" did not return to the Department as undelivered and therefore, the Assessing Officer and the Tribunal were fully justified in holding that notice was duly sent and since it was not returned back as undelivered, it was deemed to have been delivered to the assessee.
• The assessee contended that by virtue of section 292BB, the service could not be treated to be valid service as there was no benefit of the presumption in favour of the Department. However, it was seen that the Revenue rightly did not rely upon any presumption under section 292BB because the assessee raised objection before the completion of the assessment in the present case.
• The notice under section 282 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", "Registered post", "Speed-post" and "UPC" etc. The Tribunal rightly relied upon "Maxwell on The Interpretation of Statutes", 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 genus and 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 not mentioned in Statute specifically, even then it is valid because of the reason that service by Speed Post is included in generic word "Post" or "Registered Post".
• Thus, there is no reason to hold that notice under section 143(2) was not served upon the assessee in time.
• When any authority decides the matter on preliminary issue and if finding on that preliminary issue is reversed, then normally, the matter is required to be remanded for deciding the remaining issues, if the remanding authority/Court itself is not deciding the other issues. Thus, the assessee automatically got right to agitate the matter before the first Appellate Authority on all the issues which were not considered and decided by the first Appellate Authority. - [2012] 24 taxmann.com 27 (Jharkhand)
FACTS
• For the assessment year 2006-07, assessee's case was selected for scrutiny and a notice under section 143(2) was issued by speed post, fixing the date for compliance but no body appeared on behalf of the assessee.
• Thereafter, in response to a subsequent notice issued under section 142(1), one person without noting attendance appeared and filed photocopy of returns, computation of Income, P&L Account and Balance Sheet. Further, the assessee's representative filed reply for dropping of case since notice under section 143(2) was not served within statutory period. However, the Assessing Officer held that notice was duly served and consequently he passed the assessment order and also ordered for initiation of penalty
proceedings under sections 271[1] [b] & 271 [1] [c].
• Commissioner (Appeals) allowed the appeal of assessee filed against the assessment order only on the ground that notice under section 143(2) was not served within the stipulated period. He, however, in view of favourable decision on question of law, did not choose to decide other issues with respect to the addition made by the Assessing Officer. Thereafter, Revenue preferred appeal only on one ground obviously, for the reason that the Commissioner (Appeals) allowed the appeal of the assessee only on one issue relating to the mandatory service of notice under section 143(2).
• The ITAT, by a detailed order held that notice under section 143(2) was duly served.
• Thereafter, the assessee preferred appeal before the High Court which was admitted for hearing on following substantial questions of law:-
(a) Whether the Tribunal was right in arriving at the conclusion that the notice under section 143(2) deemed to have been served upon the assessee in spite of the fact that no postal receipt of sending the notice by speed post was before the Assessing Officer and the Tribunal?
(b) Whether the Tribunal was right in rejecting the contention of the assessee on merits about the correctness of addition made by the Assessing Officer only on the ground that since Commissioner (Appeals) set aside the assessment order on the ground of jurisdiction and, therefore, without filing any cross-objection or appeal in the matter where the order passed by the Commissioner (Appeals) was in favour of the assessee, the Tribunal had no jurisdiction to address the issue about the correctness of addition made by the Assessing Officer?
HELD
• In the instant case, a notice under section 143(2) was alleged to have been sent by speed post and this fact was not in dispute that notice was sent by "speed post" and, therefore, notice was in accordance with law under section 282 (1).
• As regards holding by the Tribunal that the service was valid, it was noted that in the order-sheet dated 24-10-2007 name and address of the assessee was mentioned and 'wrong address' was not the plea of the assessee. Therefore, Department sent the notice under section 143(2) to the assessee on the assessee's address, and that too through Speed Post which was more reliable mode and therefore, it was required to be presumed that notice was delivered to the addressee.
• The notice sent through "Speed-post" did not return to the Department as undelivered and therefore, the Assessing Officer and the Tribunal were fully justified in holding that notice was duly sent and since it was not returned back as undelivered, it was deemed to have been delivered to the assessee.
• The assessee contended that by virtue of section 292BB, the service could not be treated to be valid service as there was no benefit of the presumption in favour of the Department. However, it was seen that the Revenue rightly did not rely upon any presumption under section 292BB because the assessee raised objection before the completion of the assessment in the present case.
• The notice under section 282 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", "Registered post", "Speed-post" and "UPC" etc. The Tribunal rightly relied upon "Maxwell on The Interpretation of Statutes", 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 genus and 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 not mentioned in Statute specifically, even then it is valid because of the reason that service by Speed Post is included in generic word "Post" or "Registered Post".
• Thus, there is no reason to hold that notice under section 143(2) was not served upon the assessee in time.
• When any authority decides the matter on preliminary issue and if finding on that preliminary issue is reversed, then normally, the matter is required to be remanded for deciding the remaining issues, if the remanding authority/Court itself is not deciding the other issues. Thus, the assessee automatically got right to agitate the matter before the first Appellate Authority on all the issues which were not considered and decided by the first Appellate Authority. - [2012] 24 taxmann.com 27 (Jharkhand)
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