TMI Blog2011 (9) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 18193 of 2011 - - - Dated:- 27-9-2011 - MR. JUSTICE HEMANT GUPTA, MR. JUSTICE JASWANT SINGH, JJ. Present: Mr. Pankaj Jain, Advocate, for the petitioner. HEMANT GUPTA, J. Challenge in the present writ petition is to the notice dated 30.09.2010 (Annexure P-1) issued under Section 143(2) of the Income Tax Act, 1961 (for short the Act ). The petitioner filed its income tax return on 29.09.2009 for the Assessment Year 2009-10 for the year ending 31.03.2009. Earlier a notice under Section 142(1) of the Act was issued seeking certain information. Subsequently, notice under Section 143(2) was issued on 30.09.2010. The grievance of the petitioner is that such notice was not served on the assessee till 30.09.2010 i.e. the last date of limitation for the initiation of proceedings for the Assessment Year 2009-10. The relevant provisions of the Act i.e. Section 143(2) of the Act read as under: 143(2) Where a return has been furnished under Section 139, or in response to a notice under sub-section (1) of Section 142, the Assessing Officer shall xxx xxx xxx (ii) notwithstanding anything contained in clause (i), if he considers it necessary or expedie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Amending Act was enacted for saving the validity of notices issued under Section 34(1) of the Act. When that Section used a word interpreted by courts in the context of such notices, it would be reasonable to assume that the expression was designedly used in the same sense. That apart, the expressions issued and served are used as inter-changeable terms both in dictionaries and in other statutes. The dictionary meaning of the word issue is the act of sending out, put into circulation, deliver with authority or delivery . Section 27 of the General Clauses Act (Act X of 1897) reads thus: 27. Meaning of service by post Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand authorised the Commissioner to suo motu call for the records of any proceedings under the Act in which an order has been passed by any authority subordinate to him and pass such order thereon as he thinks fit. The proviso, however, stated that the Commissioner shall not revise any order under that subsection "if the order (sought to be revised) has been made more than one year previously". Construing this provision the High Court in Muthia Chettiar's case held that the power to call for the records and pass the order will cease with the lapse of one year from the date of the order by the subordinate authority and the ratio of date of the knowledge of the order applicable to an aggrieved party is not applicable for the purpose of exercising suo motu power. Similarly in another decision reported in Viswanathan Chettiar v. Commr. of Income Tax, Madras, 25 ITR 79 Mad, construing the time limit for completion of an assessment under Section 34(2) of the Income Tax Act, 1922, which provided that it shall be made "within four years from the end of the year in which the income, profit and gains were first assessable", it was held that the time limit of four years for exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx xxx xxx 18. Thus if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority, to make an order the date of exercise of that power and in the case of exercise of suo motu power over the subordinate authorities' orders, the date, on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers but persons affected are not concluded by the decision. The said principle of the issue of a notice or communication has also come up for consideration before the Hon ble Supreme Court in the context of the provisions of Section 4 of the Contract Act, 1872. It has been held that the moment the proposer puts his proposal in the course of transmission, it is complete as against the acceptor i.e. addressee. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll after the date of his retirement even though such an order is passed and despatched to him before such date. An officer against whom action is sought to be taken, thus, may go away from the address given by him for service of such orders or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such a meaning of the word communication ought not to be given unless the provision in question expressly so provides. Actually knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of the consequences which the decision in The State of Punjab v. Amar Singh Harika AIR 1966 SC 1313 contemplates. But such consequences would not occur in the case of an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid. Learned counsel for the petitioner has also relied upon the judgment of Hon ble Supreme Court in Assistant Commissioner of Income Tax and another Vs. Hotel Blue Moon (2010) 3 SCC 259. But the said judgment does not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake in the issue of notice or defective service of notice does not affect the jurisdiction of the assessing officer, if otherwise reasonable opportunity of being heard has been given. (ii) Issue of notice as prescribed in the Rules constitutes a part of reasonable opportunity of being heard. (iii) If prejudice has been caused by non-issue or invalid service of notice the proceeding would be vitiated. But irregular service of notice would not render the proceedings invalid; more so, if the assessee by his conduct has rendered service impracticable or impossible. (iv) In a given case when the principles of natural justice are stated to have been violated it is open to the Appellate Authority in appropriate cases to set aside the order and require the assessing officer to decide the case de novo. In view of the said judgment, the date of receipt of notice by the addressee is not relevant to determine, as to whether the notice has been issued within the prescribed period of limitation. The expression serve means the date of issue of notice. The date of receipt of notice cannot be left to be undetermined dependent upon the will of the addressee. Therefore, to bring ..... X X X X Extracts X X X X X X X X Extracts X X X X
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