Malik, CJ. :-This is a reference under S. 66 (1), Income-tax Act. Two questions, which have been referred to us by the Income-tax Appellate Tribunal, Allahabad Bench, are as follows :

"1. Whether, in the circumstances of the case, there was a valid service by post on the appellant as contemplated by S. 63, Income-tax Act?

2. Whether R. 24 of the Appellate Tribunal Rules 1947, was ultra vires in the absence of a corresponding rule entitling it to re-hear the appeal when good cause was shown for default ?"

2. The assessee is a firm carrying on business under the name and style of Messrs. M.X. de Nornha and Sons, Kanpur. The assessee filed an appeal before the Income-tax Appellate Tribunal, Allahabad Bench. A notice was issued by the Tribunal on 19-5-1947, fixing 17-7-1947, for hearing of the appeal. The notice was sent by registered post to the address given by the assessee. The notice was taken to the office of the assessee on 23-5-1947, and it was received by one H.D. Srivastava, a clerk of the firm, who endorsed his acknowledgment under the seal of the assessee, for M.X. de Nornha and Sons, Kanpur. This service was deemed to be sufficient and on the date fixed, i.e., 17-7-1947, the case was taken up by the Tribunal. The assessee did not appear nor was there anyone on his behalf. The Tribunal, however, passed over the case that day and fixed it for the next day. On 18-7-1947, again when no one appeared on behalf of the assessee, the Tribunal passed the following order :

"This appeal was fixed for 17-7-1947. The appellant is duly served with the notice of the date of hearing. He was absent throughout the day yesterday. We put down the appeal for to-day awaiting his appearance. He has not appeared even today. It is past 4-45 P. M. now. No application for adjournment has also been received. In the circumstances, we dismiss this appeal for default."

After the dismissal of the appeal for default, the assessee filed an application praying that certain questions of law be referred to this Court under S. 66 (1), Income-tax Act and, along with that application, an affidavit of Shri H.D. Srivastava was also filed in which he said that a notice was brought during the luncheon interval when nobody else was present in the office. He received the notice but as he felt unwell, he left the office and thereafter he got high fever; and by the time he was better, the notice was lost. He further stated that he had not read the contents of the notice and had not communicated its contents to the partners of the firm. The tribunal, however, did not consider the affidavit convincing and held that it "savoured of falsehood" and rejected it as unreliable.

3. We are, therefore, left with the fact that a notice was sent by registered post to the addresd given by the assessee. It was received by an employee of the firm, who even used the seal of the firm, on its behalf. The question is whether these facts were sufficient to hold that there was a valid service of the notice on the assessee, as contemplated by S. 63, Income-tax Act.

4. Section 63, Income-tax Act, is divided into two sub-sections. The first sub-section, so far as it is relevant to service of notices by post, runs as follows :

"63 (1). A notice or requisition under this Act may be served on the person therein named either by post.............."

Sub-section (2) relevant for our purposes is as follows :

"63 (2). Any such notice or requisition may, in the case of a firm......be addressed to any member of the firm or to the manager.......and, in the case of any other association of individuals, be addressed to the principal officer thereof."

Learned counsel for the assessee has urged that, in the case of a firm, notice must be served either on the manager or on a member of the firm; and as Shri H.D. Srivastava was neither a manager nor a member of the firm, the notice was not duly served on the assessee firm. His argument, in short, in that sub-s. (1) of S. 63 of the Act does not apply to the case