Decided on February 06,1957



- (1.) THIS is a reference by the Appellate Tribunal under Section 66 (1) of the Income Tax Act for determination of the following question :-" (i) Where a properly addressed registered letter, postage prepaid, -is returned by the post office with ah endorsement by a postman 'inkariwala hai' (in the category of refusal), does a presumption arise of due service of the letter on the addressee? and, following as a corollary, (ii) If the answer to the above question is in the negative, whether the order of the Tribunal, dismissing the appeal for default, is not liable to be recalled on the ground that it is null, as the appellant had not been given an opportunity of being heard in support of his appeal?"
(2.) THE facts giving rise to the reference are:-The petitioner Balbhadhar Mal Kuthiala preferred an appeal before the income Tax Appellate Tribunal against an assessment of the year 1945 46. The appeal was submitted by post and it reached the Tribunal on 6th june, 1949. The appeal was fixed for hearing for 6th December, 1949, and a notice thereof was issued to the petitioner at his Simla address, as given in the memorandum of appeal, by registered post prepaid and acknowledgment due. The registered letter was delivered to the post office on 28th October, 1949. The addressee being not available in simla, the post office there redirected the letter to Kuthiala House, hoshiarpur. The postal authorities at Hoshiarpur returned the cover to the office of posting with an endorsement in pencil 'inkariwala hai' (refuses to accept), presumably made by the postal peon. On 6th december. 1949, when the appeal was called for hearing, no one was present on behalf of the appellant. On 13th December, 1949, the tribunal dismissed the appeal with the following order :-- "a notice fixing the hearing of assessee's appeal for (5th december 1949 was issued by the office on 27th October 1949. The notice was issued to the assesses under Registered post Acknowledgment due, it was returned by the Post Office with the remarks that the addressee refused to receive the service of the notice. This refusal is tantamount to a service. Nobody was present on the date of the hearing. The appeal, is therefore, dismissed for default of appellant's appearance. " Information of this order reached the assessee on 7th February, 1950. On 13th february, he submitted an application to the Tribunal for restoration of his appeal and for its decision after affording an opportunity to him of being heard in support of the contentions raised in the appeal. This application was accompanied by an affidavit of the petitioner stating that no registered letter purporting to be from the income Tax Appellate Tribunal was ever presented to him by the postal authorities and that he had never refused to accept the same. The Tribunal rejected the application, vide their order dated 27th October, 1950, mainly on the ground that the Tribunal had no inherent power of reviewing or setting aside their own order.
(3.) SIMULTANEBUSLY, the petitioner had presented another application to the Tribunal under Section 66 (1) of the Income Tax Act praying that a statement of the case be drawn up and the following questions referred for determination of the High court:-- (i) Whether, in the circumstances of the case, the order of dismissal of the case preferred by the appellant, in limine is an order valid in law? (ii) Whether, in the circumstances of the case, the Tribunal was in law justified to draw the conclusive inference that the notice, of hearing was in fact served upon the assessee? (iii) Whether, in the circumstances of the case, the Tribunal did give in law a real opportunity to the appellant of being heard? the Appellate Tribunal accepted this application, but confined the reference to the questions reproduced above. The assessee wanted that the draft statement should also include a reference to his haying made a miscellaneous application for setting aside the Tribunal's order dated 6-12-1949, to his filing an affidavit denying that the notice was tendered to or refused by him and to the order of the Tribunal rejecting the application. This prayer of the assessee was refused on the ground that these were events which happened subsequent to the Tribunal's order, and no question relating to them could he said to arise out of that order. ;

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