1. The Additional Judge (Revisions) Sales Tax, Agra, has submitted the following question for our opinion:
Whether service by registered post under the endorsement 'refused' made by the postal department merely raised a rebuttable presumption or a conclusive one and whether in the circumstances of this case that presumption had been sufficiently rebutted.
2. For the year 1962-63 an ex parte assessment order was passed against the assessee on 15th March, 1967. An appeal against the assessment order was filed on 7th July, 1967, nearly four months after the date of the assessment order. The appeal was prima facie time-barred as the limitation for filing an appeal under Section 9 is thirty days from the date of the service of the assessment order and the notice of demand. The assessee alleged that he had no knowledge of the assessment order prior to 1st July, 1967, on which date the kurk-amin approached him for the realisation of the tax assessed under that order. Before the appellate authority it was contended that he had received the copy of the assessment order and the notice of demand on 5th July, 1967, and thus the appeal filed on 7th July, 1967, was within time.
3. The department, on the other hand, contended that the assessment order and the notice of demand were sent to the assessee under registered cover which was returned with the report 'refused'. The assessee filed an affidavit denying that he had refused to accept the service of the envelope containing the assessment order and the notice of demand, and also made an application under Section 5 of the Limitation Act. The Assistant Commissioner (Judicial) however did not accept the affidavit of the assessee and refused to condone the delay. He accordingly by his order dated 29th September, 1967, rejected the appeal as time-barred. The Judge (Revisions) took a contrary view. According to him, the endorsement of refusal by the postman merely raised a presumption of service which was rebuttable. In his opinion the assessee had rebutted the presumption by filing an affidavit which had not been controverted or proved to be wrong by any evidence or material placed on the record by the department. He accordingly set aside the appellate order and remanded the appeal for disposal on merits. The Commissioner is aggrieved and has caused this reference to be made to this court.
4. The question of law is in two parts:
(i) As to whether the service by registered post under the endorsement 'refused' made by the postal department raises a conclusive presumption or the presumption is rebuttable ?
(ii) As to whether on the facts of this case the presumption can be said to have been rebutted by the assessee.
5. From a perusal of the order of the Judge (Revisions) as also from the language in which the question is couched, it is apparent that the admitted case of the parties was that when a letter is returned undelivered to the sender with the endorsement that the same had been refused by the addressee, only a presumption of delivery arises. Now, a presumption can be conclusive only if the law says that a particular presumption would be conclusive. Learned counsel for the department has not brought to our notice any provision under the U.P. Sales Tax Act or the Rules framed thereunder which would make a presumption of the type involved in the instant case as conclusive. In our opinion the view taken by the Judge (Revisions) that the presumption was rebuttable cannot be said to be erroneous. We accordingly answer the first part of the question by saying that the presumption of service was rebuttable and not conclusive.
6. The second part of the question, in our opinion, does not raise any question of law. Whether or not a particular presumption has been rebutted in a case depends upon the findings recorded by the authority concerned on the material placed before it. Now, in the instant case the assessee had filed an affidavit saying that the envelope containing the assessment order and the notice of demand had never been tendered to him for delivery and he never refused to accept the same. The department has not led any evidence or pointed out any circumstances upon the consideration of which the affidavit of the assessee could be disbelieved. As it is, the Judge (Revisions) has chosen to believe the assessee's affidavit, and it cannot be said that in doing so he has acted beyond his jurisdiction or contrary to any statutory provision or legal principle. The Judge (Revisions) is a final fact-finding authority and it is open to him to accept or reject any piece of evidence. When he accepts a piece of evidence that is the end of the matter and in our opinion such a finding cannot give rise to any question of law, unless the finding is without any material or is otherwise arbitrary or perverse. Upon the circumstances of this case it cannot be held that the finding of the Judge (Revisions) falls in that category.
7. We accordingly answer the second part of the question by saying that in the first instance it is a question of fact and not a question of law and secondly even if we were to answer such a question, our answer would be that in the circumstances of the case, the presumption of service had been sufficiently rebutted.
8. We answer the two questions accordingly in favour of the assessee and against the department. As no one has appeared on behalf of the assessee, we make no order as to costs.