JUDGMENT
G. Sivarajan, J.
1. The matter arises under the Income-tax Act, 1961 (for short “the Act”). The appellant is a partner in a firm, M. M. Chandy and Co., Kottayam. The assessment year concerned is 1975-76. The assessment of the said partnership firm was completed by making an addition of Rs. 27,040 (rupees twenty seven thousand forty only) as income from undisclosed sources. The assessing authority also made a protective assessment on the appellant in respect of the sum of Rs. 27,040 added in the firm’s assessment, as per order dated January 17, 1978 (exhibit A1). The firm filed an appeal against the firm’s assessment which was allowed and the sum of Rs. 27,040 was deleted from the firm’s assessment. This was on the finding that the said sum of Rs. 27,040 is the undisclosed income of the appellant. Though the protective assessment was made on the appellant, she did not file any appeal against the said assessment order and the same has become final. The appellant, after about 13 years, made an application before the assessing authority requesting for issuance of a copy of the protective assessment order and the same was obtained on August 9, 1991. Thereafter, she filed an appeal against the protective assessment order before the first appellate authority, who, after considering the contentions, rejected the appeal on the ground of limitation. In second appeal by the appellant before the Tribunal, the order of the Commissioner of Income-tax (Appeals) was upheld. This court, while admitting the appeal, ordered notice on the following five questions of law :
“1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in law in holding that the appeal filed is barred by limitation by reckoning the date of service of notice of demand and the assessment order on the father of the assessee in I. T. A. No. 332 (Coch) of 1993 ?
2. Whether, on the facts and circumstances of the case, the Appellate Tribunal was justified in law in holding that the appeal filed before the Deputy Commissioner (Appeals) is barred by limitation while admittedly the order
was served on the assessee only on August 9, 1991, and the appeal was filed on August 29, 1991 ?
3. Whether, on the facts and circumstances of the case, the Appellate Tribunal was justified in law in holding that I. T. A. No. 470/Coch. of 1995 does not survive for consideration in view of the finding of the Appellate Tribunal in I. T. A. No. 332 (Coch) of 1993 ?
4. Whether, on the facts and circumstances of the case, the Appellate Tribunal was justified in law in disposing of the appeal without entering into a final finding of fact when the Deputy Commissioner (Appeals) disposed of the appeal not on question of limitation but only on facts and when there was no cross-objection from the Department on the question of limitation ?
5. Whether, on the facts and circumstances of the case, the Appellate Tribunal was justified in law and on facts in confirming the protective assessment made final without considering the agricultural source explained by filing agricultural income-tax assessment orders and in sustaining the additions of Rs. 27,040 ?”
2. Shri Pathrose Mathai, learned counsel appearing for the appellant, submits that there was no proper notice of the protective assessment order on the appellant at any time prior to the service of the said assessment order on August 9, 1991. He further submitted that under Section 282(1) of the Income-tax Act, a notice or requisition under the Act has to be served on the person therein named, either by post or as if it were a summons issued by a court under the Code of Civil Procedure. Counsel also submits that in the instant case, admittedly, the copy of the assessment order was served only on the managing partner of the firm, which will not satisfy the requirement of the said sub-section. He also submitted that though this aspect was brought to the notice of the Tribunal, the Tribunal relied on the provisions of Sub-section (2) of Section 282 and held that the service of the assessment order on the managing partner of the firm is sufficient compliance of the provisions of Section 282 of the Act.
3. Shri P.K.R. Menon, senior standing counsel for the Revenue, on the other hand, submits that both the appellate authorities have found that there is sufficient compliance of the provisions of Sub-section (1) of Section 282 of the Act, that the assessment order was served at the address given by the appellant in the return and that too, to the father of the appellant, who is the managing partner of the firm. Senior counsel further submits that the Tribunal has clearly stated the circumstances under which the copy of the assessment order was served on the managing partner of the firm.
4. We have considered the rival submissions and also perused the orders of the two appellate authorities. The first appellate authority has noted that the appellant had given address in the return of income as M. M. Chandy and Co., Kottayam, that notice was issued to the appellant in the said address, that the
said notice was served on the managing partner, Shri M. M. Chandy, that he appeared before the Assessing Officer, that the assessment order was served on Shri M. M. Chandy, who is the managing partner of the firm and that since the appellant has given her address as M. M. Chandy and Co., Kottayam, the assessment order could only be served in that address. It was also noted that the said Chandy, at no point of time, had objected to receipt of the notice or order on behalf of the appellant. The first appellate authority accordingly held that the assessment order was properly served on the appellant. The Income-tax Appellate Tribunal has also independently considered this matter and observed as follows :
“In this case, indisputably, the notices were served at the address furnished in the return of income, i.e., Smt. Latha Chandy, C/o. M/s. M. M. Chandy and Co., Kottayam. Sri Chandy happens to be the father of the asses-see. Further, Sri Chandy had not, at any time, objected in serving the notice on him on behalf of the assessee. The learned representative of the assessee, Sri Iype John reiterated that the service of the notices on Sri M. M. Chandy, was not valid and hence the finding of the Deputy Commissioner of Income-tax (Appeals) that the appeal was time barred is to be set aside.”
5. The Tribunal, after adverting to the decision of the Allahabad High Court relied on by the assessee, further observed as follows :
“In the case before us, though Sri M. M. Chandy is not a power of attorney holder of the assessee, he is the father of the assessee and also the managing partner of the firm, M. M. Chandy and Co., Kottayam, in which the assessee is also a partner. Further, when the hearing notice was first served on Sri Chandy, he had not objected to such service on behalf of the assessee. Sri Chandy, being father of the assessee, is a family member of the assessee. For all these reasons, we have no alternative except to hold that the service of notice on Sri M. M. Chandy, managing partner of M. M. Chandy on behalf of the assessee was valid and proper. Therefore, we hold that the Deputy Commissioner of Income-tax (Appeals) was justified in holding that the appeal was filed late by 13 years of the date of assessment order. The order of the Deputy Commissioner of Income-tax (Appeals) is upheld.”
6. According to us, the Tribunal has considered the question with reference to the provisions of Section 282 of the Act in the right perspective and found that there is sufficient compliance of the said provision in the peculiar facts of the case. We have already extracted the questions of law on which the notice was ordered in the appeal. However, on a consideration of the matter, we find that the only question which arises for consideration in this case is as to whether there was sufficient compliance of the provisions of Section 282 of the Act in the matter of serving the protective assessment order on the appellant and as to whether the Tribunal was justified in holding that the facts already found satisfy the said requirement.
7.
As we have already noted, the Tribunal has rightly held that there was
sufficient notice to the appellant about the protective assessment order passed
on January 17, 1978. In the above circumstances, we are fully in agreement
with the appellate order of the Tribunal. There is no merit in this appeal and it
is accordingly dismissed.