A.N. Varma, J. - (1.) AT the instance of the Revenue, the following questions have been referred for our opinion : "1. Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal was right in holding that the appeal filed by the applicant was barred by limitation ? 2. Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal has not committed an error in refusing to entertain additional evidence on the technical ground as it was an important piece of evidence to decide the controversy ? 3. Whether, on the facts and circumstances of the case, it could legally be said that the Department had discharged its burden to prove by sufficient material that the service of the assessment orders/demand notices were made upon the applicant on October 24, 1968 ? "
(2.) THE assessee is a Hindu undivided family and was, during the relevant time, carrying on sarafa business at Moth in the district of Jhansi under the name and style of Messrs. Jagannath Prasad Kanhaiyalal. THE assessment years under consideration were 1956-57 to 1960-61 and 1964-65 to 1967-68. Tika Ram Yadav was the karta of the family. By a consolidated order dated October 9, 1968, the Income-tax Officer made an assessment of the income of the said firm in respect of the assessment years in question. On I.T.N.S.--51, the Income-tax Officer reported that the assessment order and demand notice had been served on the assessee on October 24,.1968. THEreupon, recovery proceedings commenced somewhere in May, 1970, by the assessing Income-tax Officer, THEse proceedings were challenged by the assessee by way of a writ petition in this court being Writ Petition No. 29 of 1974. THE recovery proceedings were challenged on the ground that neither the order of assessment nor any notice of demand had been served on the assessee and, consequently, the recovery proceedings were completely without jurisdiction. A counter-affidavit was filed by the Income-tax Officer wherein he categorically asserted that both the assessment order as well as the notice of demand had been served personally on Tika Ram on October 24, 1968. THEreafter, the said petition was dismissed as not pressed on the statement of learned counsel for the assessee by an order dated December 5, 1974, For the time being it is not necessary to elaborate the correspondence that ensued thereafter between the assessee and the Income-tax Officer concerned. On August 2, 1977, the assessee filed nine appeals against the consolidated order of the Income-tax Officer dated October 9, 1968. On I.T.N.S. --51, the Income-tax Officer reported that as the assessment order and demand notice had been served on the appellant on October 24, 1968, the appeals filed on August 2, 1977, were clearly out of time. Thereupon, a show-cause notice was issued to the appellant on September 6, 1978, which was replied to by the assessee's counsel, vide letter dated September 18, 1978, stating that his client had been asked to furnish proof of his old age and as the karta had expired, he be allowed one month's time for furnishing the necessary evidence explaining the delay. It was also asserted that the assessment orders were served only on July 24, 1977, and, therefore, the appeals filed on August 2, 1977, were within time. On February 22, 1979, another show-cause notice was issued in reply to which counsel for the assessed reiterated that the demand notices were served on, the assessee on July 24, 1977, and that the assessment order had not been served even when recovery proceedings were initiated in 1970. Thereupon the Income-tax Officer, Jhansi, was asked by the Appellate Assistant Commissioner to explain the circumstances with regard to the service of the assessment order and demand notice on the assessee. The Income-tax Officer submitted a reply dated July 17, 1979, stating that both the assessment order and the demand notice had been duly served on the assessee on October 24, 1968. This fact was corroborated by the affidavit of the then Income-tax Officer, Jhansi, filed in the abovenoted writ petition in this court in which it was clearly asserted that the assessment order and the demand notice had both been served personally on Tika Ram Yadav on October 24, 1968, The Income-tax Officer, in his reply dated July 17, 1979, further stated that the common acknowledgment slip in respect of the service of the assessment order and demand notice was pasted on the notice of demand for the assessment year 1964-65. There is a clear impression on that notice of demand of the acknowledgment slip pasted thereon which, according to the Income-tax Officer, was intact so long as the writ petition was pending in the High Court but the said slip has been removed therefrom subsequently. The Appellate Assistant Commissioner considered the entire material existing on record and came to the conclusion that the assessment order and the demand notice had been served on Tika Ram Yadav on October 24, 1968, and by a consolidated order dismissed all the nine appeals on the ground of limitation.
(3.) THEREAFTER, the assessee filed a further appeal before the Tribunal. With the memorandum of appeal, the assessee filed some fresh documents by way of additional evidence without any application or affidavit stating their relevance or why the same were not filed earlier. The representative of the Department filed a written objection dated January 14, 1980, regarding the manner in which additional evidence was sought to be brought on record by the assessee without following the procedure prescribed by the Income-tax (Appellate Tribunal) Rules, 1963. It was pointed out that these documents, all dated October 24, 1968, were not filed before the Income-tax Officer or even the Appellate Assistant Commissioner and that the said documents ought not to be allowed to be brought on record in view of the principles laid down in the decision Velji Deoruj andamp; Co. [1968] 68 ITR 708 (Bom). By its order dated November 20, 1980, the Tribunal affirmed the order of the Appellate Assistant Commissioner and dismissed all the appeals. The Tribunal held that the order of assessment and the demand notice had been duly served on the assessee on October 24, 1968. The appeals filed by the assessee on August 2, 1977, were hence clearly barred by limitation and we're rightly dismissed by the Appellate Assistant Commissioner. In regard to the additional evidence, the Tribunal upheld the objection of the Department's representative and observed that the assessee had not complied with the procedure prescribed under the Income-tax (Appellate Tribunal) Rules, 1963. On merits, the Tribunal negatived the assertion of the assessee that the assessment order/notice of demand had not been served on October 24, 1968, but only on July 24, 1977.;