TMI Blog1997 (9) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... 29. 2. The assessee is an individual carrying on construction business. In the original assessment the income was determined by applying a net profit rate on net receipts, that is, after deducting the cost of material supplied by the contractee. From the figure so arrived at, a further amount of Rs. 36,600 was deducted, being excess cost of cement. This assessment was completed under section 143(3) on 15-5-1985. Subsequently however, the Assessing Officer was of the opinion that the sum of Rs. 36,600 should have been deducted from the total receipts and not from the net profit arrived at by applying the net profit rate. Accordingly, notice under section 148 was issued and served on the assessee. The reassessment was completed on 31-1-1991 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3] 13 Taxman 267 (Cal.), Tiwari Kanhaiya Lal v. CIT [1985] 154 ITR 109/[1984] 19 Taxman 497 (Raj.) and CIT v. Lallubhai Jogibhai [1995] 211 ITR 769/79 Taxman 419 (Bom.). 5. Shri N.C. Dhadda, the learned counsel for the assessee, stressed on the interpretation of the term "Issued". According to him the term "issue" contemplates that the process of serving the same should set in motion. Merely writing down the particulars and preparing the same does not mean that it is issued. If such an interpretation is given then the assessing authority may make the notice within the period of limitation but keep it on the file for an indefinite period of time before setting it in motion. This, according to him, would defeat the very purpose of prescribi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recedent to conferment of jurisdiction on the Income-tax Officer to deal with the matter but it is a condition precedent to the making of the order of assessment." 9. In the case of New Bank of India Ltd. the notice was issued on the last day when the period of limitation was getting over. The fact as to exactly on which date it was served, is not available. However, in the present case the notice was dated 12-10-1988, but was it actually issued before 31-3-1989, is a moot point. 10. In the case of Iqbal Singh Atwal, the question of limitation for issue of notice under section 148 was not before the Calcutta High Court and hence the said decision is not helpful to us to decide this appeal. On the same ground the decision in Tiwari Kanha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jor Tikka Khushwant Singh [1995] 212 ITR 650/80 Taxman 88 (SC), in a writ petition filed by the assessee, the Punjab Haryana High Court directed the AAC to decide the assessee's appeal in accordance with law and in doing so to also ascertain when the notice under section 148 had been despatched by registered post. The department filed a Special Leave Petition before the Supreme Court. The Supreme Court refused to interfere with the order of the High Court. Thus, according to the High Court, the date of despatch of notice was an important factor to decide the date of issue of notice. 16. In CIT v. Sheo Kumari Debi [1986] 157 ITR 13 (Pat.) (FB), the notice was signed on 30-3-1970 and was issued by registered post on 31-3-1970. Admittedly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tieth Century Dictionary, observed that the relevant meaning of the word "issue" are : act of sending out; to put forth; to put into circulation; to publish; to give out for use. Thus keeping the notice on file after preparing it, does not fit into any of these meanings to be described as "issued". After issuing it as described above, it is immaterial when it is served. It may be served even after three years, but the essence is that it should set into motion for being served. And, the onus to show that it was so issued, lies on the department, who in the case before us, has failed to do so. 18. In this context, it would be unfair not to deal with the contention of the learned D.R. mentioned in para 6 above, that once the notice is made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atna High Court, while referring to section 114 of the Evidence Act, did not lay emphasis on this aspect. However, the Hon'ble High Court did except some fall. The present case, perhaps, may be one that of negligence on the part of the Assessing Officer to issue the notice before limitation despite preparing the same well in advance. 20. Finally, a word about the significant change made in the present Act from that in the earlier Act. Under the 1922 Act, service before the limitation was a precondition. Under the present Act, only issue before the limitation was made mandatory. This significant change according to the Patna High Court, was to blunt the efforts of recalcitrant assessee wishing to avoid the service of notice in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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