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2016 (6) TMI 701 - GUJARAT HIGH COURT

2016 (6) TMI 701 - GUJARAT HIGH COURT - [2017] 392 ITR 571 - Reopening of assessment - non issue of notice - reason recorder belatedly - Held that:- There is prima facie materials produced by the department to demonstrate that the envelope was in fact, handed over to the postal authorities on 31.3.2015 itself for delivery. If that be so, it would be sufficient compliance with the requirement of issuance of notice as discussed by this Court in case of Kanubhai M. Patel (HUF) v. Hiren Bhatt or his .....

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h a letter of the same date written by him to the Principal Commissioner seeking approval. In the file, we also find the approval granted by the Principal Commissioner of the Income tax also on 30.3.2015. In fact, the suggestion placed by Assessing Officer was first screened by the Joint Commissioner of Income-tax which was then placed before the Principal Commissioner who recorded as under : - “After perusal of the reasons given by the Assessing Officer in the annexure, I am satisfied that .....

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L APPLICATION NO. 2549 of 2016 With SPECIAL CIVIL APPLICATION NO. 2550 of 2016 - Dated:- 13-6-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MR RK PATEL, ADVOCATE FOR THE RESPONDENT : MR DEVANG VYAS, ADVOCATE, MR NIKUNT K RAVAL, ADVOCATE, MRS MAUNA M BHATT, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These three petitions arise in common background. They have been heard together and are being disposed of by this common judgement. Facts may be noted f .....

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out in cases of Venus group of Ahmedabad on 10.3.2015 at the main office and residential premises during which incriminating materials and documents were found. On the basis of seized materials from the premises at 901, Saphire complex, from the abbreviations used, it was found that the transactions concerning the petitioner were recorded. The reasons also referred to the data seized from the harddisk from the computers at the site linking certain transactions to the petitioner. 3. The petition .....

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n as provided in section 149 of the Act. Second ground was that the Assessing Officer had not recorded his reasons before issuance of the notice, clearly demonstrating a legal error. 4. Elaborating the first ground, counsel for the petitioners submitted that though the notice is dated 30.3.2015, the same was not booked for delivery with the postal department before 1.4.2015. He drew our attention to the postal endorsement which would show that the notice was booked for delivery only on 1.4.2015. .....

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ce of notice. The petitioners' specific averments in this respect in the petition have met with evasive reply. This coupled with the fact that the reasons are undated would lead to an inference that the same were recorded after issuance of notice contrary to what is suggested by the department. 6. On the other hand, learned counsel Shri Manish Bhatt for the department took us through the materials on record produced by the department to contend that the notice was in fact, handed over to the .....

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ing. 7. Regarding the recording of reasons, counsel submitted that in addition to the affidavit of the department, original files and contemporaneous record would show that reasons were recorded before issuance of notice. Same were placed before the higher authority for approval. Only after approval of the Principal Commissioner, notice was issued. 8. Having heard learned counsel for the parties and having perused the documents on record, regarding the first issue, we may notice that the Divisio .....

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e read in the aforesaid context. In the present case, the impugned notices have been signed on 31.03.2010, whereas the same were sent to the speed post centre for booking only on 07.04.2010. Considering the definition of the word issue, it is apparent that merely signing the notices on 31.03.2010, cannot be equated with issuance of notice as contemplated under section 149 of the Act. The date of issue would be the date on which the same were handed over for service to the proper officer, which i .....

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issue of the said notices would be 07.04.2010 and not 31.03.2010, as contended on behalf of the revenue. In the circumstances, impugned the notices under section 148 in relation to assessment year 200304, having been issued on 07.04.2010 which is clearly beyond the period of six years from the end of the relevant assessment year, are clearly barred by limitation and as such, cannot be sustained. 9. Thus the expression to issue used in the context of notice referred to in section 149 of the Act, .....

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the petitioner, handed over to the postal department for delivery on 31.3.2015 as averred by the petitioner or as strongly contended by the petitioner, this happened only on 1.4.2015? In this context, the petitioner points out that the postal department had booked the post only on 1.4.2015. The certificate issued by the Head Sorting Assistant, Shri C.I. Limbola on 15.5.2015 was later on retracted. Said Shri Limbola was not even on duty on the said date and therefore, could not have issued any s .....

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ter 04.00 / 05.00 PM, if there would be any speed post or other articles to be despatched on urgent basis, the same are being done by the staff of this Department. In the instant case also, on verification of the records, it emerges that the Respondent has issued notice under section 148 of the Act dated 30.03.2015 in the name of the assessee and also handed over to the Postal Authority (Pickup manShri N.A. Parmar, GR.D(MTS) on 31.03.2015 as usual, along with other speed post articles pertaining .....

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e, it is seen that the same have been despatched by the staff of the Department The same is confirmed from the receipt of the postal department affixed after the noting of the address at Sr.No.25. The said receipt shows the time of booking at 19.01 on 31.03.2015 and this article is in the continuation of the list of articles mentioned in the outward register. Thus, from the above observation, it is confirmed that envelope containing the impugned notice has been handed over/despatched to the post .....

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his initial at the end of the noting of the articles is also confirmed by the noting of articles made on 30.03.2015 where the pickup man has put his initial receiving the articles. The said initial is matched with the initial made on 31.03.2015. Further, the service of the impugned notice to the postal department through the pickup man on 31.3.2015 is also confirmed that the same has been delivered along with other 23 articles and the same is in continuation of further speed post articles bearin .....

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de intention, then, there would not be any further speed post articles, other than the impugned notice on 31.03.2015 and there would be another date. However, it is not so and it is evident from the outward register that the impugned notice noted at Sr.No.3 on 31.03.2015 has been handed over along with other articles mentioned at Sr.No 4 to 24 to the pickup man of the postal authority on 31.03.2015 itself and the same is confirmed from the fact that on the same date, further articles from Sr.No. .....

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authority. The Department is relying upon its outward register. As per this outward register, it is revealed that it is the Department who had issued the notice u/s. 148 of the Act dated 30.03.2015 and handed over to the Postal Authority on 31.03.2015 who in turn, had transferred and booked the article (containing impugned notice u/s.l48) on 01.04.2015 for which it cannot be said that the notice u/s. 148 of the Act is not issued within the time limit. The process of issue of notice, i.e. signin .....

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nts also relied on various documents which included an affidavit dated 2.3.2016 filed by one Vasant Amrutlal Modi, Tax Assistant, in which he has stated as under : 1. that I had been posted in the office of the DCITCC1 (l), Ahmedabad till July, 2015. l was Working as Tax Assistant and work allotted to me was handling of outward and inward registers in Tapal in addition to other work allotted by the Officer. 2. A pickup man of the Postal Department comes daily in the evening around 4 O clock to c .....

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e usual practice followed by the offices located in Aayakar Bhavan. 4 The receipts of these 24 dak handed over to the pickup man has been duly acknowledged by him by putting his signature/initial on the outward register on 31st March, 20l5 itself. This practice of collecting daks and by putting signature in outward register (copy enclosed of 31st March, 2015) has been followed by the postal pickup man since last many years. 12. The documents also include a letter from the Assistant Postmaster Ge .....

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t he has picked 24 articles from the premises of Income Tax Department on dated 31.03.2015 and he has confirmed his signature availabie in outward register of IT Department in token of of articles. Further he has stated that IT Department has has established system to hand over such articles with accuracy having duly counted and tallied with nme and addresses of the recepient as noted in outward register . And therefore he used to take over all such articles by counting and cross tallying with n .....

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3.2015 in BNPL by IT Department were picked on 31.03.2015 by Shri N.A. Parmar Pick up man BNPL and handed over to concern BNPL incharge on the same day i.e. 31.03.2015 A copy of letter written by Shri Parmar dated 3.3.2016 is also enclosed. 13. The above materials would establish that the question is a highly disputed question of fact. There is prima facie materials produced by the department to demonstrate that the envelope was in fact, handed over to the postal authorities on 31.3.2015 itself .....

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ised. In this context, we may refer to decision of Commissioner of Income-tax and others v. Chhabil Dass Agarwal reported in (2013) 357 ITR 357(SC), wherein it was held as under : 15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that nonentertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of selfimposed limitation. It is essentially a rule of .....

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