MALIK, J. - (1.) THIS is a reference under S. 66 (1), Income -tax Act in which two questions are raised. The assessee filed an appeal before the Appellate Tribunal in which 22 -4 -1948, was the first date fixed for hearing. Notice of this application was sent to the assessee at the address given for service. The notice was as follows : "Take notice that the above appeal has been fixed for hearing at 23A, Thornhill Road, Allahabad, at 10 -30 A. M. on 22 -4 -1948." The notice came back unserved with an endorsement by the postal authorities as follows : "Not claimed."
(2.) THE tribunal thereupon postponed the hearing to 28 -7 -1948, and a fresh notice in exactly similar terms was sent by registered post. This came back with the endorsement by the postal authorities as follows : "Refused." The Tribunal thereupon dismissed the case for default on 28 -7 -1948. The order of the Tribunal was as follows : "Notice of the first hearing in this appeal was sent to the appellant by the postal address by which he undertook to receive the notice but it was received with the endorsement not claimed on it after the date of hearing viz. 22 -4 -48 had passed away. We, therefore, adjourned the appeal sine die and issued a fresh notice by the same postal address for today. This has been returned with the note by the postal authorities Refused. As a matter of precaution, we also had a letter sent to Mr. Trivedi, the gentleman who actually filed and prosecuted the appeal in its initial and intermediate stages till now but he has not even cared to acknowledge the same. In the circumstances, the notice is duly served. No one appears for the appellant. The appeal is, therefore, dismissed for default of prosecution under R. 24, Income -tax Appellate Tribunal Rules, 1946."
(3.) THE assessee did not move the Appellate Tribunal to set aside the order of 28 -7 -1948, dismissing his appeal for default but applied for a reference under S. 66 (1), Income, tax Act. The tribunal has referred two questions for answer : The first is : "Whether the mere endorsement of refusal to accept the service of the notice of hearing of the appeal made by the Postal authorities was sufficient in the eye of law to! justify the presumption of service of the notice on the applicant?" ;