JUDGMENT
1. The Income-tax Appellate Tribunal, ‘B’ Bench, Patna, has submitted the statement of case under Section 256(1) of the I.T. Act, 1961 (hereinafter to be referred to as “the Act”), and referred the following question for the opinion of this court:
“Whether, on the facts and in the circumstances of the case, the Tribunal was correct in upholding the order of the Appellate Assistant Commissioner cancelling the penalty of Rs. 33,653 levied by the Income-tax Officer under Section 271(1)(a) of the Income-tax Act, 1961 ?”
2. The facts are not at all in controversy. The statement of the case relates to the assessment year 1965-66. The assessee is a partnership concern deriving income from coal mining business. A notice under Section 139(2) dated June 1, 1965, was issued by the ITO, Colliery Circle, Dhanbad. The assessee, however, filed a return before the ITO, Special Circle, Ranchi, on August 6, 1966 (when the case was transferred to him), with a mark “duplicate” mentioned at the top of the return. As there was delay in riling the return, the ITO levied penalty of Rs. 33,653 under Section 271(1)(a) of the Act for the late filing of the return. A copy of that order has been marked as annex. A.
3. The assessee preferred an appeal before the AAC. It was submitted there that the original return for the said year was sent to the ITO concerned on October 26, 1965, under certificate of posting. A peon book was produced in support of the said contention. This bore the stamp of Bermo Post Office against the entry ” one cover containing income-tax return for the year ending March 31, 1965″, addressed to the ITO, Dhanbad. The AAC, relying upon the said piece of evidence, held that the original return was filed in time. He further held that:
“There is nothing to disbelieve the appellant’s evidence. It has been common knowledge that many returns though received in various income-tax offices were not properly accounted for and not regularly placed on records. For this, the appellant cannot be held guilty. For misplacement of papers in the office, a taxpayer should not be held responsible.”
4. A copy of the order of the AAC cancelling the penalty has been marked as annex. B.
5. The Department went up in appeal to the Tribunal. It was stated that the order of the AAC was not correct. According to the stand taken by the Revenue, there was only a presumption of posting of a letter under certificate of posting and that, in the instant case, there was no other evidence available on record to support the assessee’s contention. The inference drawn by the AAC was incorrect. The Tribunal, however, held as follows:
“The assessee has produced evidence to show that the return was filed within time allowed under the Act on 26-10-65. He has also led evidence to prove the same.”
6. In the opinion of the Tribunal, “the posting of an article under certificate of posting when correctly addressed and posted duly prepaid is also an evidence to show that a certain article was posted.”
7. The only question that arises for determination in this case is as to whether the Tribunal was justified in agreeing with the AAC that posting of a valid return within the time allowed under certificate of posting was sufficient evidence of the return having been filed within time. This question can no ‘longer be said to be open to doubt. It is needless for us to detain ourselves in enumerating a series of decisions with regard to the nature of presumption arising out of such posting. We, therefore, confine ourselves to refer to only two decisions, one of the Judicial Committee of the Privy Council and the other of the Supreme Court. In the case of Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102, at page 112, it was held that:
“If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time, according to the regular course of business of the post office, and was received by the person to whom it was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register….”
8. In the case of Har Charan Singh v. Shiv Rani, AIR 1981 SC 1284, the effect of the presumption arising out of the provisions of Section 27 of the General Clauses Act and Section 114 of the Evidence Act was gone into. That
was also a case of a notice to quit. In that context, it was held that (p. 1285):
“The presumption both under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary, the presumption of proper service or effective service on the addressee would arise, which must mean service of everything that is contained in the notice.”
9. It would thus appear from the facts of the instant case that the evidence produced by the assessee raises a presumption under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act and the return having been duly despatched through the post office admittedly within the time as envisaged by the Act, there does not seem to be any infirmity in the order of the Tribunal. We, accordingly, answer the question referred to us in the affirmative and hold that, on the facts and in the circumstances of the case, the Tribunal was correct in upholding the order of the AAC cancelling the penalty of Rs. 33,653 levied by the ITO under Section 271(1)(a) of the Act. There shall be no order as to costs.