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K. Ramamurty Subudhi and Sons Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 225 of 1972
Judge
Reported in[1976]105ITR283(Orissa)
ActsConstitution of India - Articles 226 and 227
AppellantK. Ramamurty Subudhi and Sons
RespondentCommissioner of Income-tax
Appellant AdvocateB.K. Mohanty, Adv.
Respondent AdvocateStanding Counsel
Excerpt:
.....filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the..........indicated, the petitioner had furnished the address in the memorandum of appeal. admittedly, the notice, annexure 'e', did not contain the words ' khaspa street' after the name of the district. the question is whether in the facts and circumstances of the case the tribunal was right in coming to the conclusion that there has been proper service of notice on the petitioner. 13. in the counter filed on behalf of the department various instances have been given when notices addressed to the petitioner in the manner in which the address has now been found in the notice, annexure 'e' had been duly delivered to the petitioner, although in all those notices (annexures 'a', 'c' and 'd') the words 'khaspa street' were not mentioned. it is clear from annexure 'f', the petition filed by the.....
Judgment:

Patra, J.

1. This is an application under Articles 226 and 227 of the Constitution praying for the issuance of a writ quashing the order dated November 19, 1971, passed by the Income-tax Appellate Tribunal in I.T.A. No. 1718 of 1966-67. That appeal was filed before the Tribunal against an order passed by the Income-tax Commissioner dated January 27, 1966. In the memorandum of appeal the petitioner furnished his address as follows:

' Messrs. Konchada Ramamurty Subudhi and Sons,

P.O. Berhampur, District Ganjam (Khaspa Street)'.

2. The appeal was posted for hearing before the Tribunal to September 12, 1969, and notice of the hearing of the appeal was issued to the petitioner in the following address:

'Konchada Ramamurty Subudhi & Sons,

P.O. Berhampur, District Ganjam. '

3. The words ' Khaspa Street' appearing after the name of the district were not added to that address. Despite this, the notice appears to have been received by the petitioner because on his behalf appearance was enteredinto and the matter was also heard by the Tribunal on September 19, 1969, in the presence of the petitioner's advocate. After the conclusion of the arguments the question of calling for a fresh report from the Income-tax Commissioner was mooted before the Tribunal and the latter took time for consideration. Ultimately, the Tribunal decided that no fresh report from the Commissioner was necessary. All that is stated above took place before the Tribunal at Patna which at that time exercised jurisdiction over the State of Orissa. It is unnecessary to refer to further stages of the hearing of this appeal. It is sufficient to say that a separate Tribunal was constituted for Onssa and one of the dates to which the matter was posted before the Orissa Tribunal was September 15, 1971. On August 23, 1971, a notice giving intimation of this date of hearing was sent to the petitioner in the following address:

' Messrs. Konchada Ramamurty Subudhi and Sons,

P.O. Berhampur, District Ganjam. '

4. The notice was sent by registered post with acknowledgment due, but was returned with the endorsement 'refused'. On September 15, 1971, which was the date for hearing of the appeal none appeared on behalf of the petitioner and the matter proceeded ex parte. The Tribunal passed the final order on September 21, 1971.

5. Meanwhile on September 25, 1971, the petitioner submitted through post a petition to the Tribunal which is marked annexure 'F'. It is necessary to extract the entire petition :

Regd. with AID

' Before the Hon'ble Tribunal Bench, Cuttack District, Orissa.

In the matter of: K. Ramamurty Subudhi and Sons,

Berhampur-2, Ganjam.

Assessment year : 1956-57, I.T.A.T. 1718/1966-67.

6. Application filed by the appellant's member most respectfully she-weth:

7. That the undersigned member of the appellant begs to submit the following for your favourable consideration.

8. That a notice was served on the appellant which was delivered to another member of the appellant who is innocent and unware of the proceeding regarding these matters and who out of fear and afraiding nature refused the notice as he never had an occasion of receiving such notices from the said department.

9. As the undersigned member is the only concerned person who is looking after these matters was out of town and the postman knew about the absence at the address and he delivered to another member who is residing at separate address who refused to receive the notice.

10. When the undersigned was informed about your goodself's notice from the member who refused the notice, now praying your honour to condone the mistake in view of the above stated facts and circumstances for which act of kindness that the undersigned applicant shall ever be grateful.

(Sd.) Konchada Visweswara .Rao Subudhi25-9-1971.

Member/Applicant.

Address : Konchada Visweswara Rao

Subudhi, Khaspa Street, Berhampur-2,

Ganjam Dist.'

11. The Tribunal passed the impugned order dated November 19, 1971, (annexure '2') rejecting the petition. It is to quash annexure '2' that the present writ application has been filed.

12. Mr. Mohanty, the learned counsel for the petitioner, submits that as admittedly the notice issued to the petitioner requiring his appearance before the Tribunal on September 15, 1971, was not correctly addressed, the conclusion arrived at by the Tribunal relying on the endorsement of refusal on the notice that the notice has been properly served is erroneous. He referred us to Rule 47(1) of the Income-tax Rules. Rule 47 of the Income-tax Rules, 1962, provides that an appeal shall be filed in Form No. 36, set out in the Appendix. This form provides in column 10 that the address to which notice may be sent to the appellant should be stated therein. As already indicated, the petitioner had furnished the address in the memorandum of appeal. Admittedly, the notice, annexure 'E', did not contain the words ' Khaspa Street' after the name of the district. The question is whether in the facts and circumstances of the case the Tribunal was right in coming to the conclusion that there has been proper service of notice on the petitioner.

13. In the counter filed on behalf of the department various instances have been given when notices addressed to the petitioner in the manner in which the address has now been found in the notice, annexure 'E' had been duly delivered to the petitioner, although in all those notices (annexures 'A', 'C' and 'D') the words 'Khaspa Street' were not mentioned. It is clear from annexure 'F', the petition filed by the petitioner before the Tribunal, that the notice, annexure 'E', was offered to some person in the petitioner's household. Therefore, there is no force in the submission made by the petitioner that, due to the absence of the words ' Khaspa Street' in annexure 'E', it was not possible for the postal authorities to locate the addressee. At any rate, it is clear from annexure ' F ' that the petitioner was aware of the fact that the notice was offered to some other person in the household which the latter refused to accept. It is true that the address found in annexure 'E' was not in strict accordance with the address furnished in column 10 of thememorandum of appeal. But this itself is not sufficient to hold that the intimation has been sent in the proper address unless due to defect in the address it is established that the addressee could not be located. 'In this case it is clear from the petition (annexure ' F ') filed by the petitioner himself that despite the defect in the notice the postal authorities could locate the addressee. The petitioner cannot, any more, make any grievance of the fact that the words ' Khaspa Street' had not been mentioned in the address in annexure 'E'.

14. On the facts stated above we find no reason to grant any relief to the petitioner. The writ application is dismissed, but in the circumstances without costs.

Acharya, J.

15. I agree.


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