G. K. MISRA C.J., - The point of law that was referred to the Tribunal under section 27(3) of the Wealth-tax Act, 1957, is as follows :
'Whether, on the facts and circumstances of the case, the date of service of the assessment order on the petitioner should be May 19, 1966, or May 22, 1966?'
The question assumes importance on account of the fact that the appeal filed before the Appellate Assistant Commissioner of Wealth-tax has been held to be barred by time. The undisputed facts may be indicated first. The assessment order and the demand notice which were sent simultaneously by the department were served on one Basudeb Agrwal on May 19, 1966. Basudeb Agarwal is a partner in one of the firm where the petitioner is also a partner. Basudeb handed over the assessment order to the petitioner on May 22, 1966. The petitioner preferred the appeal on June 22, 1966. If the assessment order is taken to have been served on the petitioner on May 22, 1966, then the appeal was filed within the prescribed time of thirty days. If on the other hand the assessment order served on Basudeb Agrwal on May 19, 1966, is held to be a service on the petitioner himself then clearly the appeal is barred by time. It is to be noted that the petitioner did not file any application under section 5 of the Limitation Act to condone delay.
The short question for consideration is whether Basudeb had any authority to receive the notice on behalf of the petitioner on May 19, 1966. It is the duty of the department to establish that service was made either on the assessee himself or on somebody duly authorised by him to receive such notice. The petitioner has been throughout contending that though Basudeb is a partner in one of the firms in which the petitioner is a partner he had no authority to receive the assessment order on his behalf. The mere fact that subsequently Basudeb passed on the assessment order to him on May 22, 1966, whereupon he acted to file the appeal in time does not establish that Basudeb was his agent to receive the assessment order on May 19, 1966. In the absence of any proof that Basudeb had such authority, conclusion is irresistible that Basudeb had no authority to receive the assessment order on behalf of the petitioner. The petitioner cannot, therefore, suffer on account of the laches of Basudeb in not handing over the assessment order to the petitioner earlier than May 22, 1966. On May 22, 1966, the position changes : Whether Basudeb had authority on behalf of the petitioner or not? In fact the petitioner received the notice on May 22, 1966, and he shall have to file the appeal within thirty days from the date of receipt of such notice. In the absence of any evidence that Basudeb had due authority on behalf of the petitioner to receive summons, the question of law must be answered in favour of the petitioner by saying that the service of the assessment order on the petitioner was on May 22, 1966, and not on May 19, 1966.
On the aforesaid analysis, the reference is accepted and the question framed is answered as indicated above. In the circumstances, there will be no order as to costs.
S. K. RAY J., - I agree.