TMI Blog2010 (7) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... ly barred by limitation and as such, cannot be sustained - Decided in favor of the assessee - Special Civil Appln. No. 5295 of 2010 Special Civil Appln. No. 5296 of 2010 Special Civil Appln. No. 5297 of 2010 - - - Dated:- 13-7-2010 - MEHTA D. A., DEVANI H. N. MS., JJ. JUDGMENT Ms. H. N. Devani J.- 1. These petitions have been filed with the following prayers : "(a) Issue a writ of certiorari and/or a writ of mandamus and/or any other writ direction or order to quash and set aside the impugned notice dated March 31, 2010, under section 148 of the Income-tax Act, 1961 annexed hereto at annexure B. (b) Pending admission, hearing and disposal of this petition, ad interim relief be granted and the respondent be ordered to restrain from enforcing compliance with the impugned notice dated March 31, 2010 under section 148 of the Income-tax Act, 1961 annexed hereto at annexure B and/or taking any other steps in this regard including ex parte order. (c) Pending admission, hearing and disposal of this petition, stay the implementation/operation of the notice and orders to restrain the respondent from taking any further proceedings pursuant to the impugned notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d post centre on April 7, 2010 only. The petitioners were also given photocopies of the paper sheet wherein the petitioners had signed for receipt of the said covers, wherein also the aforesaid registration numbers were shown to have been booked on April 7, 2010 and the signatures for receipt of the covers by the petitioners were shown as on April 8, 2010. The petitioners have, therefore, challenged the legality and validity of the notices dated March 31, 2010 issued by the respondent No. 1 under section 148 of the Act as being time barred, contending that the impugned notices have been issued beyond the time limit prescribed under the provisions of section 149 of the Act. 5. In response to the petition, respondent No. 1 has filed affidavit-in-reply, wherein it has been stated that the petitioners have themselves admitted that the notice is dated March 31, 2010 and that the said date is also mentioned on the speed post cover. That as the notices were duly signed on March 31, 2010, the same were valid in view of the provisions of section 149(1) of the Act. It is submitted that the notice was issued on March 31, 2010 by the said office. That section 149 of the Act speaks of time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court in the case of GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19 (SC). The learned advocate has further submitted that the date of issue of the notices under section 148 of the Act would be the date on which the same have been dispatched by registered post. It is submitted that in the facts of the present case, it is apparent that the notices have been dispatched by registered post only on April 7, 2010, hence, the same have clearly been issued beyond the prescribed period of limitation and as such, are time barred. In support of his submissions, the learned advocate has placed reliance upon the following decisions : (a) The decision of the Supreme Court in the case of R. K. Upadhyaya v. Shanabhai P. Patel [1987] 166 ITR 163 (SC) ; and (b) The decision of the Supreme Court in the case of CIT v. Major Tikka Khushwant Singh [1995] 212 ITR 650 (SC). 7. On the other hand, Mr. M. R. Bhatt, learned senior advocate appearing for respondents Nos. 1 and 2, has opposed the petition, contending that as to whether the notices under section 148 of the Act have been issued within time limit, is essentially a question of fact and as such, the same cannot be decided in a wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of what is stated hereinafter. 10. The contention that there are two versions coming on record, is de hors the record inasmuch as it is the case of the petitioners that the notices were sent to the concerned speed post centre for booking only on April 7, 2010 which is supported by respondents Nos. 3 to 5, and the same is not controverted by the Revenue in the affidavit-in-reply filed on behalf of respondents Nos. 1 and 2. Thus, in so far as the fact that the notices had been sent for booking only on April 7, 2010 is concerned, the same stands established from the record of the case. Though there is stamp of the concerned post office bearing the date March 31, 2010, the same remains unexplained in the light of the aforesaid admitted facts. In the circumstances, the only question of fact which the court is required to determine is as to whether the notices had been sent to the post office on March 31, 2010 or April 7, 2010. In this regard, the record produced before the court is sufficient to come to the conclusion that the notices had been sent for booking to the speed post centre only on April 7, 2010, in the absence of any evidence to the contrary being pointed out by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as to when can the notice under section 148 of the Act be said to have been issued. In this context it would be necessary to examine the true import of the expression shall be issued as employed in section 149 of the Act. 15. The expression "issue" has been defined in Black's Law Dictionary to mean "To send forth ; to emit ; to promulgate ; as, an officer issues orders, process issues from a court. To put into circulation ; as, the treasury issues notes. To send out, to send out officially ; to deliver, for use, or authoritatively ; to go forth as authoritative or binding. When used with reference to writs, process, and the like, the term is ordinarily construed as importing delivery to the proper person, or to the proper officer for service etc." "In P. Ramanatha Aiyer's Law Lexicon the word "issue" has been defined as follows :Issue. As a noun, the act of sending or causing to go forth ; a moving out of any enclosed place ; egress ; the act of passing out ; exit; egress or passage out (Worcester Dict.) ; the ultimate result or end. As a verb, To issue means to send out, to send out officially ; to send forth ; to put forth ; to deliver, for use, or authoritatively ..... 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