In absence of Return of Notice sent by Speed Post it will be presumed to be delivered

CA Sandeep Kanoi

Ld. Counsel for the assessee submitted that the letter at page 43 of the assessee’s paper book is not 12^th August, 2006 as typed, but was actually, 12^th August, 2010 and that this was a typographical error. He submitted that the claim of the D.R. that a notice of demand u/s 156 was issued to the assessee by speed post is not believable. He argued that the acknowledgement which is photocopied on the reverse of notice of demand u/s 156 is no evidence at all. He ridiculed the papers filed by the department and submitted that these do not help the case of the department. He pointed out that in the case of M/s. Sartorious Mechatronics India vs. ACIT, a delay of 1836 days was condoned for reason that the assesee was guided by professional advice and had not filed an appeal. He argued that being a Govt. Organisation a considerate approach has to be shown. He reiterated that there is no reason for the assesee, not to file an appeal.

Rival contentions heard. On careful consideration of the facts and circumstances of the case and a perusal of the papers on record and the orders of the authorities below as well as case law cited, we hold as follows.

The revenue in this case has stated that the notice of demand u/s 156 was served on the assessee along with the assessment order and computation form. Evidence of dispatch of the same through speed post on 17.11.2006 is produced before us. The assessee denies the receipt of the same, but is unable to controvert the documentary evidence produced by the revenue. When the document is sent by speed post and when the same is not returned to the sender by the postal department, the presumption is that it has been served on the assessee. Hence we presume that the notice of demand u/s 156 was served on the assessee along with the assessment order and computation form. Ld.Counsel for the assessee wanted the Bench not to take cognizance of these documents filed by the Revenue. We are unable to accept this submission. Ld. DR pointed out that these are filed only on the direction of the bench. We see no reason as to why these papers filed by the revenue have to be rejected. Thus the entire basis on which the assessee based his argument for condonation of delay is devoid of merit.

Even otherwise if it has to be considered that notice of demand has not been served on the assessee, the assessee filed a letter dated 12^th August, 2006 on 18^th August, 2010 before AO, requesting for notice of demand. The submission of the Ld. Senior Counsel that the date 12^th August, 2006 is a typographical error cannot be accepted. This claim is not supported by any evidence other than circumstantial evidence i.e. the date of filing of the application. We also find that the signature of Mr. R.K. Goel, Sr. Manager, (F&A) on the letter dated 12^th August, 2006 and the affidavit executed on 25^th August, 2010 is at variance.

The assessee stated in his letter dated 27^th January, 2011 addressed to the Commissioner of Income Tax (A) that it was only after it received the order of the Tribunal on 30.7.2010 for the assessment years 2001-02, 2002-03 and 2003-04 the status of the appeal in respect of the instant asstt. Year 2004-05 was examined and it was pointed out that no appeal has been filed, as no notice of demand was This statement shows that during the entire interregnum period of more than three years, the assessee has not pursued the matter to obtain the -NIL- notice of demand. This period of delay has not been explained.

On the argument that an appeal was not filed on the advise of the Chartered Accountant, the only evidence filed is an affidavit of the employee of the assessee. This is a self-serving document as the Chartered Accountant has not corroborated the same.

Under these circumstances, we concur with the view of the Ld. CIT(A) that the assessee could not demonstrate that, it was prevented by sufficient cause, in filing this appeal within the time stipulated under the Act. We do not find any infirmity in the order of the Ld.CIT(A).

Coming to the decisions relied upon by the Ld. Senior advocate, we have perused all of them and we hold that each case, is peculiar to its facts and In none of the cases it has been laid down that in each and every case, condonation has to be granted as a matter of rule. Unlike in the cases cited, the basic reason cited by the assessee in this case is found incorrect. Hence there is a factual difference. In this case, the department has produced evidence to prove that notice u/s 156 was dispatched along with the assessment order to the assessee. As already noted the very ground on which the assessee based its entire case for condonation of delay fails and consequently we uphold the order of the first appellate authority and dismiss the appeal of the assessee.