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Jayalakshmi Cloth Stores Vs. Income-tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 5228 of 1978
Judge
Reported in[1981]132ITR764(AP)
ActsIncome Tax Rules, 1962 - Rule 45; Income Tax Act, 1961 - Sections 283(2); Constitution of India - Article 226
AppellantJayalakshmi Cloth Stores
Respondentincome-tax Officer and ors.
Appellant AdvocateY.B. Tata Rao, Adv.
Respondent AdvocateP. Rama Rao, Adv.
Excerpt:
.....by petitioner found within limitation period. - - the last column of the form reads thus ) 'address to which notices may be sent to the appellant'.the form also provides for the verification of the appellant to declare thus :what is stated above is true 'to the best of his information and belief. '7. from the aforesaid averments in the counter, we are satisfied that the aac has sent the copy of the appellate order to sri a. rules, 1962, which clearly requires the appellant before the aac to specifically furnish the name and address of the appellant, and the address to which notices may be sent to the appellant, such procedure alone must be followed. we, therefore, hold that the petitioner's appeals are not barred by limitation but are well within the period of limitation..........same. 12. we may notice here a decision of the allahabad high court in k.d. kalra & co. v. cit [1975] tax lr 614. therein it was held that the limitation for preferring an appeal against the order of the aac to the tribunal would start from the date of the communication of the appellate order to the assessee. the memorandum of appeal to the aac in theprescribed form requires the address of the appellant for sending notices, the address furnished in the prescribed form of appeal must be construed to be not only for the purpose of communication of the notice of appeal but also the notice of appellate order. the limitation for appeal to the tribunal will start from the date of service of notice of the appellate order of the aac on the appellant at the address given in the memorandum of.....
Judgment:

Kondatah, C.J.

1. This application under Article 226 of the Constitution by the petitioner-firm represented by its managing partner gives rise to a short but important question of law as to whether the order passed by the AAC should be served on the party who preferred the appeal on behalf of the firm or on any one of the erstwhile partners of the dissolved firm.

2. M/s. Jayalakshmi Cloth Stores, Gudivada, was a partnership firm which was dissolved in the year 1972. For the assessment years 1969-70 and 1970-71 the managing partner, Chaparala Ranga Rao, preferred appeals on behalf of the partnership firm before the AAC, Vijayawada, against the orders of assessments passed by the ITO, Gudivada in the prescribed Form No. 35 in which it was specifically mentioned in the relevant column that notices and orders should be sent on behalf of the firm either to themanaging partner, Chaparala Ranga Rao, or to his authorised representative, Sri Ramamohana Rao, Advocate, Gudivada. The AAC served his order on Sri A. Subba Rao, one of the erstwhile partners of the dissolved firm, who did not inform the writ petitioner about the same. Sri Subba Rao did not take any action in this regard. When the petitioner approached Sri Subba Rao with a request to hand over the original appellate orders received by him to enable him to take necessary steps, the said orders were handed over to the petitioner on October 2, 1977, with great difficulty. Thereafter appeals before the Income-tax Appellate Tribunal, Hyderabad Bench, were filed on October 10, 1977, accompanied by an application to condone the delay in filing the appeals for the reasons stated therein. A supplementary affidavit was also filed giving more details and particulars. However, the Tribunal by its order dated 30th June, 1978, rejected the appeals I.T.A. Nos. 1249 and 1250 of 1977-78 on the ground that they were barred by limitation. Hence, this writ petition to quash the orders of the Tribunal on the ground that the appeals were filed within sixty days from the date of knowledge of the orders of the AAC to the writ petitioner, that the AAC has a statutory duty and obligation to serve the appellate orders on the petitioner who had filed the appeals or on his authorised representative, and that instead, they have been served upon Sri A. Subba Rao, an erstwhile partner of the dissolved firm, who was not evincing any interest in the matter.

3. Mr. Y. B. Tata Rao reiterated the contentions raised in the application.

4. Mr. P. Rama Rao, learned standing counsel for the department, opposed the claim of the petitioner contending, inter alia, that service on one of the partners of the firm would be sufficient as required by the provisions of Section 283 of the I.T. Act and the appeals were, therefore, barredby limitation.

5. Admittedly, the appeals were preferred by the managing partner of the dissolved firm in the year 1972. The address given in the memorandum of appeal is admittedly not that of Sri A. Subba Rao. Section 283 of the I.T. Act provides for the service of a notice when an HUF is disrupted or a firm is dissolved. Section 283(2) states that where a firm or other association of persons is dissolved, notices under the I.T. Act in respect of the income of the firm or association may be served on any person who was a partner (not being a minor) or member of the association, as the case may be immediately before its dissolution. This provision would apply in so far as the service of notices under the I.T. Act is concerned with regard to the income of the firm or association being determined by the ITO. No doubt, this provision is under Chap. XXIII which is described as ' Miscel-laneous'. This does not, in our view, apply to the case of an appeal before the AAC or the Income-tax Appellate Tribunal.

6. Rule 45 of the I.T. Rules, 1962, requires that an appeal under Section 246 or 247 or 248 of the I.T. Act to the AAC be made in Form No. 35. The first column in Form No. 35 provides that the name and address of the appellant should be given. The last column of the form reads thus ) 'Address to which notices may be sent to the appellant'. The form also provides for the verification of the appellant to declare thus : ' what is stated above is true ' to the best of his information and belief. The writ petitioner specifically avers in his affidavit filed in support of the writ petition that he has specially mentioned in Form No. 35 in the relevant column that notices and orders should be sent on behalf of the firm either to him or to his authorised representative, Sri R. Ramamohana Rao, Advocate, Gudivada. This averment has not been denied by the ITO, Gudivada, who has filed the counter. It is, however, averred in the counter thus :

' Even after dissolution of the firm the service on one of the partners is a valid and effective service. The address for service in the name of the advocate given in the memo of appeal is only for convenience and on that score the service effected legally on one of the partners cannot be questioned. The contention that the orders of the Tribunal are illegal and that the appeals are not barred by limitation is untenable. '

7. From the aforesaid averments in the counter, we are satisfied that the AAC has sent the copy of the appellate order to Sri A. Subba Rao, one of the erstwhile partners of the dissolved firm, although specifically the address for service had been given in the memorandum of appeal in Form No. 35 as that of the writ petitioner or his authorised representative, his advocate at Gudivada.

8. The general contention that one of the partners can be served as a representative of the firm even after dissolution is based upon the provisions of Section 283(2) of the I.T. Act, 1961, referred to earlier. That provision is a general provision which is applicable to the case of assessments by the ITO in respect of the income of the firm. Where a specific Form No. 35 has been prescribed under a statutory rule, rule 45 of the I.T. Rules, 1962, which clearly requires the appellant before the AAC to specifically furnish the name and address of the appellant, and the address to which notices may be sent to the appellant, such procedure alone must be followed. It cannot be said that the statutory authority, which prescribed Form No. 35 under r. 45, has required the appellant-assessee to furnish his address and the address to which notices may be sent to the appellant without any purpose or significance. Nor can it be said that this information has been sought for without any need. The object of this information isto see that the AAC serves notices on the appellant as per the address given in Form No. 35 but not on others. We are, therefore, of the firm view that the provisions of Section 283(2) would not come to the aid of the respondents to contend that the AAC was entitled to or justified in serving the notices or the appellate order on Sri A. Subba Rao, who admittedly did not file the appeal or take any interest in this regard, The very purpose and object of service of notices and the appellate order is to provide an opportunity for the appellant to take appropriate action against the order received by him in case he is aggrieved by it. The procedure adopted by the AAC is illegal and erroneous.

9. That apart, the stand taken by the department in this regard is also violative of the rules of natural justice. The person who prefers an appeal before the AAC must know what had happened to his appeal. If anything is needed with regard to the appeal he must be informed of the same. The service of the appellate order on a wrong person or on a person who has no interest in the subject-matter of the appeal could be nugatory and in any event it does not serve any purpose. The writ petitioner was certainly not aware of the passing of the order by the AAC against the firm, though dissolved. The sixty days' period of limitation provided for preferring an appeal by an aggrieved party, be it an assessee or an ITO, to the Tribunal is only from the date of receipt of the order or knowledge of the passing of the order. Judged from any angle, we have no hesitation to hold that the petitioner has preferred these appeals within the period of sixty days from the date of knowledge of the passing of the orders by the AAC.

10. We have already held that the procedure adopted by the AAC in serving the copy of the appellate order on Sri A. Subba Rao, an erstwhile partner of the dissolved firm, who did not prefer an appeal, ignoring the address given in Form No. 35, is contrary to law and can certainly be ignored by the writ petitioner. We, therefore, hold that the petitioner's appeals are not barred by limitation but are well within the period of limitation prescribed therefor.

11. This view of ours gains support from the decision of the Orissa High Court in Fatechand Agarwal v. CWT : [1974]97ITR701(Orissa) wherein it was held that it is the duty of the revenue to establish that the service of an order or notice was made on the assessee himself or on somebody duly authorised by him to receive such notice. In the instant case, we have already held that Sri Subba Rao was not authorised to receive the same.

12. We may notice here a decision of the Allahabad High Court in K.D. Kalra & Co. v. CIT [1975] Tax LR 614. Therein it was held that the limitation for preferring an appeal against the order of the AAC to the Tribunal would start from the date of the communication of the appellate order to the assessee. The memorandum of appeal to the AAC in theprescribed form requires the address of the appellant for sending notices, The address furnished in the prescribed form of appeal must be construed to be not only for the purpose of communication of the notice of appeal but also the notice of appellate order. The limitation for appeal to the Tribunal will start from the date of service of notice of the appellate order of the AAC on the appellant at the address given in the memorandum of appeal in the prescribed form.

13. For the reasons stated, we quash the orders of the Tribunal and direct the Tribunal to receive the memoranda of appeals filed by the petitioner herein as they are within the period of limitation prescribed therefor. The petitioner in entitled to his costs, Advocate's fee Rs. 250.


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