ORDER
D.N. Sharma, Judicial Member
1. This appeal filed by the transferee is directed against the order dated 2-12-1986 passed by the Competent Authority, Jalandhar Under Section 269F(6) of the IT Act, 1961 acquiring a cinema building known as Sutlej Cinema situated at Nawan Shehar together with land measuring 6 Canals and 12 Marias purchased by the transferee for an apparent consideration of Rs. 9 lakhs vide sale deed No. 1816 of 28-7-1980.
2. The memorandum of appeal was filed on 20-6-1988 and as per office report it was barred by time by 521 days. A notice dated 7-7-1988 was issued to the transferee to show cause as to why the appeal should not be dismissed as time barred or to apply for con-donation for delay. In response to this show cause notice a reply was sent on behalf of the assessee which is dated 11 -7-1988 wherein it was, inter alia, stated that there was no delay in filing the appeal. It was contended that the order under appeal was served upon the assessee on 20-5-1988 and that the appeal was duly filed on 20-6-1988 since 18th and 19th June, 1988 were holidays being Saturday and Sunday. Thus, according to the transferee, the appeal was filed within 30 days from the date of the service of the order of the Competent Authority. It was further stated in this reply that the copy of the order passed Under Section 269F(6) was never served upon the transferee. It was on its request that a certified copy of the order appealed against was served upon the transferee on 20-5-1988.
3. We have heard the learned authorised representatives of the parties on the question whether the appeal filed by the transferee was within time or was barred by limitation. Here it may be pointed out that according to the Department a copy of the order of the Competent Authority passed Under Section 269F(6) was served upon the transferee on 11-12-1986 and, therefore, the appeal was clearly barred by limitation.
4. The learned counsel for the assessee submitted before us that a certified copy of the order of the Competent Authority was delivered to Shri Brij Mohan Singh, one of the partners of the transferee firm only on 20-5-1988 as would be clear from the tear off acknowledgement slip, a copy whereof has been filed and is included in the paper book filed by the transferee. It was contended that before 20-5-1988 a copy of the order appealed against was never served upon the transferee.
5. It was next submitted by the learned counsel for the transferee that as per acknowledgement receipt obtained by the postal authorities a copy whereof is filed by the Department and is at page 2, a copy of the order was said to have been served upon on one Shri Pardeep Kumar on 11-12-1986. It was contended that Shri Pardeep Kumar was not related to the transferee and was not its employee. Shri Pardeep Kumar had no authority to accept service of the order on behalf of the transferee. In support of the contention that Shri Pardeep Kumar was not an employee of the transferee firm reliance was placed on the letter of the Dy. CIT(A), Acquisition Range, Jalandhar dated 8-1-1990 addressed to the Sr. Authorised Representative, ITAT, Amritsar Bench, Amritsar. Reliance has also been placed on the two affidavits sworn by Brij Mohan Singh, one of the partners of the transferee firm. Both these affidavits were attested on 21-12-1989. It was also submitted that Section 282 of the IT Act, 1961 was not applicable in this case. It was further submitted that provision of Section 282 of the IT Act, 1961 related to service of notices and summons is generally and that it did not provide for service of an order passed Under Section 269F(6).
6. The learned D.R., on the other hand, submitted that a copy of the order of the Competent Authority was served both on the transferor and the transferee as provided Under Section 269F(8) on 11-12-1986. In support of this contention our attention was invited to the aforesaid copy of the acknowledgement slip obtained by the postal authorities and the same is at page 2 of the paper book filed by the Department. It was then contended that a copy of the order of the Competent Authority was sent to the transferee by registered post at its proper address. The registered cover containing the copy of the order was received by one Pardeep Kumar on behalf of the transferee. It was thus contended that the presumption would arise that the copy of the order had been duly served upon the transferee. Such a presumption, according to the learned D.R., was available Under Section 27 of the General Clauses Act. Reliance has been placed on the decision of the Calcutta High Court in the case of CIT v. Malchand Surana [1955] 28 ITR 684 in support of the contention that even if the copy of the notice had been delivered by the postman to a person who had no authority to receive the same, still the presumption would be that the copy had been received by the addressee.
7. We have considered the rival submissions made on behalf of the parties. Section 282 of the IT Act, 1961 lays down that a notice or the requisition under this Act may be served on the person therein named either by post or as if it were a summon issued by a Court under the Code of Civil Procedure. A copy of the order passed Under Section 269F(6) is required to be served on the transferor and the transferee as required Under Section 269F(8). Chapter XX-A does not separately provide for mode of service of an order passed Under Section 269F(6). General provisions contained in Section 282 provide for service of notices and requisitions. In our opinion, this Section would also apply to orders which are required to be served under the provisions contained in Chapter XX-A. The Law, therefore, provide that a copy of the order Under Section 269F(6) is to be served by post. Service of a copy of the order Under Section 269F(6) may also be effected by registered post as provided Under Section 282 read with Order V, Rule 19-A CPC.
8. In the instant case, copy of the order Under Section 269F(6) was sent to the transferee by registered post on 10-12-86 vide postal receipt No. 1682 a copy whereof is available on the record. There is no dispute that the registered cover containing a copy of the order was properly addressed and prepaid. A presumption would, therefore, arise Under Section 27 of the General Clauses Act that the copy of the order sent by registered post, was duly served on the addressee, namely, the transferee. This presumption, no doubt, is rebuttable. It has to be seen whether the presumption arising Under Section 27 of the General Clauses Act has been successfully rebutted on the transferee or not.
9. The registered cover containing the copy of the order of the Competent Authority was delivered by the postman to one Pardeep Kumar who signed the acknowledgement receipt for M/s. Sutlej Palace & Pictures, Nawan Shahr, the transferee. According to the transferee, Pardeep Kumar was not in its employment and was not authorised to receive the copy of the order on its behalf. In support of this contention the transferee placed reliance upon the affidavits of Brij Mohan Singh. In one of these affidavits Brij Mohan Singh has deposed that Pardeep Kumar was neither a partner of the firm nor a person envisaged in Section 269F(8) on whom orders passed Under Section 269F(6) could have been served and that he has never been authorised to receive such orders. In the other affidavit it is stated that Pardeep Kumar has never been employed by the firm M/s. Sutlej Palace & Pictures, Nawan Shahr. The contents of the letter of Dy. CIT(A), Acquisition Range, Jalandhar dated 8-1-1990 addressed to the Sr. Authorised Representative, ITAT, Amritsar Bench, Arnritsar also go to show that at the material time Pardeep Kumar was not an employee of the transferee firm. The evidence filed by the transferee is thus to the effect that Pardeep Kumar to whom the registered cover was delivered by the postman was not its employee and was not authorised to accept service of the copy of the order passed Under Section 269F(6). This fact alone, in our opinion, cannot go to rebut the presumption arising Under Section 27 of the General Clauses Act.
10. The evidence available on the record conclusively goes to show that the registered cover containing a copy of the order of the Competent Authority was delivered at the proper address of the transferee. It was received by Pardeep Kumar who had no authority to receive such an order on behalf of the assessee. In the case of Malchand Surana (supra) it has been held by their Lordships of the Calcutta High Court that the mere fact that the physical delivery of the notice was made to a person other than the addressee and to a person who had no authority to receive the letter on the addressee’s behalf, could not be sufficient to prove that there had been no proper service. It was further held that the presumption that a proper service had been effected would still be there and would not be rebutted by the mere fact that the actual service had been effected on a different person and the acknowledgement of receipt was by him. The facts of the case in hand are similar to the facts of the case decided by the Calcutta High Court. Thus, in spite of the fact that copy of the order of the Competent Authority was received by Pardeep Kumar who had no authority to receive the copy, the presumption that a proper service had been effected on the addressee still remains unrebutted. Mere denial on oath by one of the partners of transferee firm is also not sufficient to discharge the onus of rebutting the presumption of proper service arising Under Section 27 of the General Clauses Act. Brij Mohan Singh being one of the partners of the transferee firm is a highly interested person. A bare denial by him uncorroborated by any independent evidence is not sufficient to rebut the presumption arising Under Section 27 of the said Act.
11. According to the transferee a certified copy of the order of the Competent Authority was for the first time delivered to Brij Mohan Singh on 20-5-1988 as was evidenced by the tear off acknowledgement slip. Here it may be pointed out that a certified copy of the order of the Competent Authority was supplied to the transferee firm on 20-5-1988 on its own request. In this connection reference may also be made to the letter of the IAC, Acquisition Range, Jalandhar dated 22-2-1988 addressed to the transferee wherein it was stated that the transferee was aware of the fact that the acquisition order dated 2-12-1986 has been passed in respect of the property known as Sutlej Cinema. The transferee was requested by the IAC to let him know whether any appeal has been preferred against the aforesaid order. Yet another letter dated 8-4-1988 was sent by the IAC, Acquisition Range, to the transferee in reply to its letter dated 7-4-1988. In this letter it was asserted that the order dated 2-12-86 had been served upon the transferee on 11-2-1986 through registered post and that the service has been confirmed by the Sr. Post Master Jalandhar City. As a proof, two photostat copies of the letter received in this regard were enclosed along with the said letter. Thereafter the transferee vide its letter dated 2-5-1988 informed the IAC(Asstt.) Range, Jalandhar that the order dated 2-12-1986 was not known to it till the letter of the IAC dated 22-2-1988 was received. It was further stated in the said letter that Pardeep Kumar who was alleged to have received the said order was not a person as envisaged Under Section 269F(8). Even in this letter it was not disputed that the copy of the order dated 2-12-86 was not received by Pardeep Kumar by registered post. In our opinion, the fact that a certified copy of the order dated 2-12-86 was delivered to one of the partners of the transferee firm on 20-5-88 on its own request cannot go to show that prior to 20-5-1988 a copy of the order was not served on the transferee.
12. In view of the aforesaid discussion we hold that a copy of the order passed Under Section 269F(6) was served upon the transferee on 11-12-86. In view of Section 269G(1), the present appeal is, therefore, time barred by 521 days as reported by the office. In this view of the matter the appeal has to be dismissed as time barred. However, in order to make our order complete we proceed to dispose of the remaining submissions made before us on behalf of the transferee.
13. It would be proper to mention at this stage that according to the Competent Authority the fair market value of the transferred property was Rs. 13,45,800. This value was based on the report of the Valuation Officer. In the grounds of appeal the transferee has also assailed the fair market value of the transferred property as determined by the Competent Authority. The learned counsel for the transferee, however, did not make any submissions before us on the grounds assailing the order of the Competent Authority determining the fair market value at Rs. 13,45,800. The only submission made before us regarding the merits of the appeal on behalf of the assessee was that in view of the Circular No. 455 dated 16-5-1986 issued by the CBDT and as modified by instruction No. 1793 dated 11-8-1988,theorderpassed by the Competent Authority Under Section 269F(6) should be vacated. So, we shall confine our discussion only to the submissions made before us by the learned counsel for the transferee.
14. The learned counsellor the transferee contended that in view of Board’s Circular No. 455 dated 16-5-86 all acquisition proceedings initiated in respect of immovable properties for which the apparent consideration was below Rs. 5 lakhs were to be dropped. It was pointed out that this circular was modified by instruction No. 1793 dated 11-8-1988 a copy whereof is at page 7 of the paper book filed by the transferee. It was submitted that as a result of the said instruction, the amount of Rs. 5 lakhs mentioned in the Board’s Circular No. 455 was substituted by Rs. 10 lakhs. It was thus contended that in view of the Board’s circular as modified by the subsequent instruction the acquisition proceedings were liable to be dropped and so the order of the Competent Authority should be vacated. It was further submitted that the appellate proceedings pending before the Tribunal were continuation of the original acquisition proceedings and, therefore, the Tribunal could take cognizance of the aforesaid circular and instruction issued by the CBDT and drop the acquisition proceedings. In support of this contention reliance was placed on the decision of the Punjab & Haryana High Court in the case reported in 1960 PLR 29 land the decision of the Allahabad High Court in CIT v. Raj Narain Tewari [1978] 113 ITR 163. It was then contended that benevolent circulars of the Board were binding on the revenue and in support of this contention reliance has been placed on the decision of the Supreme Court in the case of K.P. Varghese v. ITO [1981] 131 ITR 597. It was submitted that on similar facts the Tribunal vide its order in the case of Smt. Lal Devi [IT Acq. Appeal No. 17 (Chd.) of 1986] dated 29-10-1986 took cognizance of Circular No. 455 and vacated the order of the Competent Authority passed under Section 269F(6). A copy of the said order of the Tribunal is also included in the paper book filed by the assessee.
15. The learned D.R., on the other hand, submitted that the Board’s circular which deviated from the law was not binding. In support of this contention reliance was placed on the decision of the Supreme Court in the case of State Bank of Travancore v. CIT [1986] 158 ITR 102/24 Taxman 337. It was further submitted that the Board’s Circular No. 455 and Instruction No. 1793 dated 11-8-1988 were not applicable in this case.
16. The aforesaid decision of the Punjab &Haryana High Court cited on behalf of the transferee, no doubt, lays down the proposition that an appeal is continuation of original proceedings and rehearing of the matter. In Raj Narain Tewari’ s case (supra) it has been held by the Allahabad High Court that an Appellate Court or authority has the same power as a Court or authority of the first instance. The propositions laid down in these authorities are not in dispute. The question is whether the aforesaid circular and the instruction issued by the Board can be applied to the facts of the instant case. It has to be borne is mind that in the present case, the order Under Section 269F(6) was passed on 2-12-1986. The Board’s circular No. 455 dated 16-5-1986 was applicable to cases where apparent consideration of any immovable properties was Rs. 5 lakhs or less. This circular is, therefore, clearly inapplicable in the instant case. Here apparent consideration for the aforesaid property was Rs. 9 lakhs. In the case of Smt. Lal Devi (supra) decided by Chandigarh Bench of the Tribunal, the apparent consideration was only Rs. 92,000. The said circular provided that acquisition proceedings would be dropped if the apparent consideration for the immovable property was below Rs. 5 lakhs. The language of the Board’s circular itself shows that it would be applicable even to the pending proceedings even if they were initiated before the date of the circular, However, in the instant case, we have to see whether the assessee could avail of the benefit of instruction No. 1793 dated 11-8-1988. A copy of the instruction No. 1793 is included in the paper book filed by the assessee. In the case of Smt. Lal Devi (supra), the Tribunal was not concerned with instruction No. 1793 and, therefore, the decision in that case is of no help to the transferee in the present case.
17. Instruction No. 1793 partially modified Board’s circular No. 455 dated 16-5-1986. The effect of the modification introduced by instruction No. 1793 was that limit of Rs. 5 lakhs envisaged in circular No. 455 was raised to Rs. 101akhs.Para 2 of the said instruction contained the guidelines including the one which raised the limit of Rs. 5 lakhs to Rs. 10 lakhs. Para 3 of the said instruction is very important. It says that the above guidelines, i.e., the guidelines mentioned in para 2 would be effective from the date of issue of instruction. So the guidelines contained in instruction No. 1793 were effective only from 11-8-1988 which is the date of the said instruction. Thus, in view of the express provision contained in the aforesaid instruction, it was effective only from 11-8-1988. The result is that even though the present appeal is continuation of original acquisition proceedings the aforesaid instruction which was effective from 11-8-1988 cannot be applied in the present case since the aforesaid circular of the Board stood modified only on 11-8-1988. In our opinion, the benefit of the aforesaid instruction cannot be extended to the transferee. For this reason also the appeal is bound to fail.
18. It may again be stated that no other point was pressed before us on behalf of the transferee and no other submissions were made on its behalf.
19. In the result, the appeal is dismissed.