- (1.) THE Additional Judge (Revisions) Sales Tax, Agra, has submitted the following question for our opinion :- "Whether service by registered post under the endorsement 'refused' made by the postal department merely raised a rebuttable presumption or a conclusive one and whether in the circumstances of this case that presumption had been sufficiently rebutted."
(2.) FOR the year 1962-63 an ex parte assessment order was passed against the assessee on 15th March, 1967. An appeal against the assessment order was filed on 7th July, 1967, nearly four months after the date of the assessment order. The appeal was prima facie time-barred as the limitation for filling an appeal under section 9 is thirty days from the date of the service of the assessment order and the notice of demand. The assessee alleged that he had no knowledge of the assessment order prior to 1st July, 1967, on which date the kurk-amin approached him for the realisation of the tax assessed under that order. Before the appellate authority it was contended that he had received the copy of the assessment order and the notice of demand on 5th July, 1967, and thus the appeal filed on 7th July, 1967, was within time. The department, on the other hand, contended that the assessment order and the notice demand were sent to the assessee under registered cover which was returned with the report "refused". The assessee filed an affidavit denying that he had refused to accept the service of the envelope containing the assessment order and the notice of demand, and also made an application under section 5 of the Limitation Act. The Assistant Commissioner (Judicial) however did not accept the affidavit of the assessee and refused to condone the delay. He accordingly by his order dated 29th September, 1967, rejected the appeal as time-barred. The Judge (Revisions) took a contrary view. According to him, the endorsement of refusal by the postman merely raised a presumption of service which was rebuttable. In his opinion the assessee had rebutted the presumption by filing an affidavit which had not been controverted or proved to be wrong by any evidence or material placed on the record by the department. He accordingly set aside the appellate order and remanded the appeal for disposal on merits. The Commissioner is aggrieved and has caused this reference to be made to this court.
(3.) THE question of law is in two parts : (i) As to whether the service by registered post under the endorsement 'refused' made by the postal department raises a conclusive presumption or the presumption is rebuttable ? (ii) As to whether on the facts of this case the presumption can be said to have been rebutted by the assessee. ;