The presumption of service under Section 27, General Clauses Act, can be rebutted by evidence that the letter was not delivered to the addressee or that the addressee did not receive it.

CHAKRAVARTTI, C. J.

( 1 ) I confess I do not feel altogether happy about the way in which the facts have been found in this case or the manner, in. which the case has been stated. Not that it is impossiole to answer the question, as framed, but since the question touches only a fringe of the real controversy between the parties, it is not possible to feel sure that should the answer be against the assessee, his contention will be fairly laid to rest.

( 2 ) THE facts are as follows. On 23-1-1949, a notice under Section 34, Income-tax Act, was served on the assessee, Malchand Surana, with respect to the assessment year 1945-46. The notice was sent under registered post and it is not disputed that it was correctly addressed. The assessee, however, was not present at his shop at the time the postal peon took the letter there for delivery - in fact, he was not even in Calcutta - and the delivery of the letter was taken by a brother of the assessee, named Chaganlal. It has been found that Chaganlal is separate from the assessee in mess and also lives separately and further that he is not concerned with the assessee's business, nor had he any authority to receive the notice on the assessee's behalf. It has further been found that at the relevant time he happened to be at the shop only casually.

( 3 ) THE assessee did not file any return in response to the notice and in due course the Income-tax Officer made a summary assessment under Section 23 (4) of the Act. Thereafter, the assessee made an application under Section 27 for a cancellation of the assessment on the ground that he had been prevented by sufficient cause from making a return in compliance with a notice under Section 34. The sufficient cause was stated to be that the notice under Section 34 had not been served on him.

( 4 ) THE Income-tax Officer rejected the application in the view that proper service of the notice had been effected. On appeal, the Appellate Assistant Commissioner affirmed that finding, but before him the assessee seems to have put his sufficient cause in a slightly different shape. He was no longer contending that service on Chaganlal was not proper service on him and indeed. admitted that it was proper service. But his contention was that, in any event, apart from whether the service had been technically correct or not, the fact of the service of the notice had not been brought to his knowledge by Chaganlal. The Appellate Assistant Commissioner did not consider such cause to be sufficient because in his view there had been a proper service of the notice and if there was, no other question arose. Incidentally, he observed that Chaganlal was over twenty two years of age and was doing some business as a broker on his own account. In that view, the Appellate Assistant Commissioner rejected both the appeal against the order under Section 27, refusing cancellation of the assessment and the appeal from the assessment itself.

( 5 ) TWO appeals were next taken to the Income-tax Appellate Tribunal. Before the Tribunal, the sufficient cause appears to have been put as a pure question of law and the Tribunal gave effect to the assessee's contention. Reference was made to the decision of the Rangoon High Court in the case of 'commissioner of Income-tax, Burma v. Dey Brothers', 1935 Rang 144 (AIR V 22) (A), and it was held on the principles said to have been laid down in that case that service on Chaganlal, who was not an agent of the assessee, nor authorised to accept service of the notice on his behalf, could not be service in law and whether or not the assessee had come to know of the notice otherwise was wholly immaterial. I should add that as regards what Chaganlal actually did on receipt of the notice, the case made by the Appellate Tribunal and apparently accepted by them was that he had not communicated to the assessee the information contained in the notice.

( 6 ) IN accordance with the view taken by them on the question of the proper service of the n

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