TMI Blog2023 (1) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... fter making reference to the conclusions drawn in B.K.Gooyee (supra) by the Calcutta High Court, has taken the view, that a notice without a signature affixed on it is an invalid notice and is effectively no notice in the eyes of law. The Madhya Pradesh High Court in Umashankar (supra) has further dealt with the second substantial question of law as to whether the Tribunal was right in holding that the absence of a signature on the notice constitutes a mistake or omission within the meaning of section 292B of the Act and while addressing itself to that question, has concluded that in the absence of a signature on the notice, the same would not constitute a mistake or omission and would not be curable under the provisions of section 292B of the Act. The notice u/s.148 having no signature affixed on it, digitally or manually, the same is invalid and would not vest the Assessing Officer with any further jurisdiction to proceed to reassess the income of the petitioner. Decided in favour of assessee. - WRIT PETITION NO.9835 OF 2022 - - - Dated:- 9-1-2023 - DHIRAJ SINGH THAKUR AND VALMIKI SA MENEZES, JJ. Mr. Vasudev Ginde a/w. Mr. Kumar Kale for the Petitioner. Mr. Aj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en signed by Respondent No.1. It is further averred that this unsigned notice alongwith the copy of order under clause (d) of section 148A of the Act was received by him by speed post on 16.04.2022. 6. Based upon these facts, it is the petitioner s contention that since the notice dated 02.04.2022 issued u/s.148 of the Act was unsigned and never sent to the petitioner, the same is invalid, bad-in-law and deserves to be quashed and set aside; that since the purported unsigned notice issued u/s.148 of the Act itself was never issued in the eyes of law and three years have been elapsed from the end of the relevant assessment year, in this case Assessment Year 2015-16, as prescribed u/s.149(1)(b) of the Act, the action is beyond limitation. It is the petitioner s case that on this count, the entire proceedings are barred and on that basis he invokes the jurisdiction of this Court under Article 226 of the Constitution of India, stating that the entire process is arbitrary and contrary to the provisions of Article 14 of the Constitution of India requiring this Court to quash and set side the impugned notice dated 21.03.2022 and notice dated 02.04.2022. 7. The respondents have filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a Division Bench judgment of the High Court of Calcutta in Commissioner of Income-Tax v. Aparna Agency (P.) Ltd. (2004) 139 Taxman 132 to contend that the provisions of section 192(B) of the Act do not provide for a cure when the notice under the Act is invalid by virtue of it not having a signature affixed as is required under the relevant provisions. He further refers to another judgment of the High Court of Calcutta in B.K. Gooyee v. Commissioner of Income-tax (1966) 62 IT 109 and a judgment of a Division Bench of the Madhya Pradesh High Court in Umashankar Mishra v. Commissioner of Income-tax (1982) 11 Taxman 75 for the proposition that absence of a signature on notice is an invalid notice in the eyes of law and such an infirmity amounts to no notice at all. 12. Per contra, Mr. Ajeet Manwani, learned counsel for the respondents submits that assuming the notice u/s.148 of the Act was unsigned manually or digitally as is clear from the original record, this fact would not, by itself vitiate further proceedings in the matter, as according to him, provisions of Section 292B of the Act could cure this defect or mistake. He argues that applying the provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee in any event, waived the notice. The expression wavier has a professional meaning. It is true that the notice was duly served and was said to have been received by the assessee, but it is determined on high authority, that the notice under section 34 (I mean a valid notice) is a condition precedent for the assumption of jurisdiction. A notice under section 34 is therefore, not merely a procedural requirement. In its absence, it does not become a case of procedural defect. The difference between the cases of want of jurisdiction and those of irregular exercise of jurisdiction, is to be remembered in this context. 15. Following the ratio laid down in B.K. Gooyee (supra) and another, a Division Bench of the High Court of Calcutta in Aparna Agency (P.) Ltd. (supra) whilst considering the validity of an unsigned penalty order issued u/s.271B of the Income Tax Act, 1961 and whether such a defect was curable in terms of provisions of section 292B of the Act, held thus :- 6. A close scrutiny of B.K. Gooyee's case (supra) could show that the question for consideration was regarding the irregularity in the issuing of a notice under section 34 of the Indian I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cised that jurisdiction and signed the said notice. The said test has not been satisfied in the case on hand. Unlike the judgment of this court in Anand and Co. [1994] 207 ITR 418 relied upon by the Revenue the case on hand is not one where the authenticity of the show-cause notice is in question. In the case on hand as held by the fact-finding authority the show-cause notice has not been signed by any person and the place intended for signature was kept blank. 16. The Madhya Pradesh High Court has taken a similar view in Umashankar Mishra (supra) whilst following the same line of thinking as the Calcutta High Court in B.K. Goyee (supra) and has held as under:- 4. The first question for consideration is whether the Tribunal was right in holding that the notice issued to the assessee under section 271(1)(a) of the Act was a valid notice. Now, the Tribunal has found that that notice was not signed by the ITO. Section 282 of the Act provides that a notice under the Act may be served on the person named therein as if it were a summons issued by a court under the Code of Civil Procedure, 1908. Sub-rule (3) of Rule 1 of O.5, CPC, provides that every summons shall be signe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) of the Act was not valid. Thus, our answers to all the three questions referred to this court are in the negative and in favour of the assessee. 17. Anand And Co. (supra) cited by the Revenue, proceeds on the basis that the notice issued u/s.148 of the Act did contain a signature, but the question before the Calcutta High Court was whether the signature was authenticated or not. In that case, the signature was affixed in the form of a curved line, which the assessee claimed was not an authentic signature. It is in that context that the High Court of Calcutta in Anand And Co. (supra) has held that the notice was proper, Anand and Co. (supra) was not a where there was no signature at all on the notice, but in view of the fact that the only challenge was to the doubtful authenticity of the curved line purporting to be his signature, the assessee could not raise an objection that the notice was infact invalid. In the facts of that case, the ratio laid down therein does not aid the argument of the respondents in any manner. 18. Sky Light Hospitality (supra) cited by the respondents was also not a case where the notice issued to the assessee was unsigned. That was a case where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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