TMI Blog2014 (1) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has prayed for an appropriate order to hold that the notice under section 143(2) of the Income Tax Act (hereinafter referred to as the Act for short) dtd. 26/9/2012 is illegal and void as beyond the period mentioned in the first proviso to section 143(2) of the Act. It is also further prayed to quash and set aside the consequent assessment order passed for the Assessment Year 2010-11 dtd. 26/3/2013 computing total income of Rs.3,47,63,560/- and raising demand of Rs.1,48,72,320/- and that the penalty proceedings under notice dtd. 28/3/2013 under section 274 read with section 271(1)(c) of the Act. 2. At the outset, it is required to be noted that the impugned notice issued under section 143(2) of the Act and the consequent assessment order for the Assessment Year 2010-11 dtd. 26/3/2013 are mainly challenged on the ground that notice issued under section 143(2) of the Act dtd. 26/9/2012 has been issued beyond the period mentioned in the first proviso to section 143(2) of the Act. No other submissions have been made. 3. It is the case on behalf of the petitioner that return of income for A.Y. 2010-11 claiming exemption of Rs.5,09,70,716/- was filed on on 29/4/2011. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that by holding so and as it was found that notice issued under section 143(2) of the Act was served upon the assessee, after the expiry of the prescribed period mentioned section 143(2) of the Act, the Division Bench confirmed the order passed by the ITAT quashing and setting aside the order of CIT(A) confirming the order of assessment. By making above submissions and relying upon the above decisions, it is requested to allow the present Special Civil Application and grant the reliefs as prayed for. 5. Present petition is opposed by Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue. It is submitted that as such in the facts and circumstances of the case, the decisions relied upon by the learned counsel appearing on behalf of the petitioner shall not be applicable. It is submitted that as such notice under section 143(2) of the Act was in fact, issued on 26/9/2012 which was sent to assessee by Speed Post as one of the mode as mentioned in section 282 of the Act and 30/9/2012 (last date of service of the notice) was Sunday and the postal department was closed and therefore, on the very next available day i.e. on 1/10/2012 (Monday), notice under section 143(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30/9/2012 was holiday and the postal department was closed, can it be said that notice under section 143(2) of the Act upon the assessee has been served within the period mentioned in the first proviso to section 143(2) of the Act and can it be said that there is sufficient compliance of proviso to section 143(2) of the Act? 6.1. At the outset, is is required to be noted and it is not in dispute that the notice under section 143(2) of the Act was in fact issued by the department on 26/9/2012 and the same was sent by Speed Post as one of the mode prescribed under section 282 of the Act. It is not in dispute that considering the proviso to section 143(2) of the Act, notice under section 143(2) of the Act was required to be served upon the assessee on or before 30/9/2012. However, 30/9/2012 was the holiday and postal department was closed and therefore, notice under section 143(2) of the Act was served upon the assessee on the first subsequent opportunity i.e. on the next working day on 1/10/2012 i.e. on Monday. It is not in dispute that 30/9/3012 being Sunday was holiday. It also cannot be disputed that when the notice was issued by the department on 26/9/2012 by Speed Post and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allottee and it was held that there was a valid performance and sufficient compliance by the allottee. While holding so, in para 5 it is observed and held as under :- What is stipulated in clause 4 of the letter dtd. 30/10/2001 is a communication regarding refusal to accept the allotment. This was done on 28/11/2001. Respondent 1 cannot be put to loss for the closure of the office of HUDA on 1/12/2001 and 2/12/2001 and the postal holiday on 30/11/2001. In fact he had no control over these matters. Even the logic of Section 10 of the General Clauses Act, 1897 can be pressed into service. Apart from the said section and various provisions in various other Acts, there is a general principle that a party prevented from doing an act by some circumstances beyond his control, can do so at the first subsequent opportunity [see Sambasiva Chari v. Ramasami Reddi, (1898) 8 MLJ 265 : ILR 22 Mad 179]. The underlying object of the principle is to enable a person to do what he could not done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then the act should be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore, it cannot be said that the notice under section 143(2) of the Act is invalid and consequently it cannot be said that the assessment order is bad on the aforesaid ground. 6.5. Now, so far as the reliance placed upon the decisions of this Court in the case of Maxima Systems Ltd. (supra) and in the case of Mahi Valley Hotels and Resorts (supra), are concerned, on facts the said decisions shall not be applicable and/or of any assistance to the petitioner. In the aforesaid two cases, such a controversy of serving notice on the first available day after last date of service was not there. In the aforesaid cases, no such controversy was there which has arisen in the present case. In the aforesaid two decisions, applicability of section 10 of the General Clauses Act and/or applying logic of section 10 of the General Clauses Act was not there. It appears that even in the case of Mahi Valley Hotels and Resorts (supra), notice under section 143(2) was issued after expiry of period of limitation and to that, it was held that assessment was void ab-initio. Under the circumstances, the aforesaid two decisions would not be of any assistance to the petitioner. 7. In view of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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