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TMI Blog2017 (1) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent therein in G.I.No.AX1-015/1997-1998 dated 13.3.2006 and quash the said proceedings of the respondent seeking to proceed further pursuant to the notice under section 148 of the Income Tax Act 1961, while directing the respondent not to proceed any further pursuant to his notice issued under section 148 of the Income Tax Act, 1961, for the assessment year 1997-1998 as proposed in his impugned proceedings. 3. The petitioner is said be a Company registered under the Companies Act, 1956, having its registered office at 19, Bishop Garden, Raja Annamalaipuram, Chennai and running a hospital for diagnosis, mitigation and treatment of ailments and diseases in different parts of the country. In the course of assessment for the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be delivered in the ordinary course of post and sought to contend that the Department, despite repeated requests, has not produced any proof with regard to putting on motion the notice in question on 31.3.2004 and therefore, it has to be construed that the notice had been served only on 10.2.2005. 5. Based on such interpretation, the learned Single Judge allowed the writ petition and quashed the impugned notice of the Department dated 31.3.2004. 6. Heard the learned counsel appearing for the Department/ appellant and the learned Senior Counsel appearing for the respondent, on the point of show cause notice is concerned. 7. As per section 148 of the Act, the despatch ought to have taken place on 31.3.2004,. Then necessarily what is to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the notice should have been served only after lapse of six years. Therefore, the learned Single Judge has rightly passed an order quashing the impugned notice, referring to the judgment in FENNER (INDI) LIMITED v. DEPUTY COMMISSIONER OF INCOME TAX ((2000) 241 ITR 672) wherein it has been held that whenever a notice is issued by the Assessing Officer beyond a period of four years from the end of the relevant assessment year, such notice being issued without recording the reasons for his belief that income escaped assessment, it cannot be presumed in law that there is also a failure on the part of the assessee to file the returns referred to in the proviso or a failure to fully and truly disclose the material facts. Unless the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son for re-opening the assessment was not shown to be the failure on the part of the assessee in disclosing the returns with full and true material facts. Such being the case, no care has been taken to issue the notice within four years from the end of the assessment. 12. Even in the penultimate para of the impugned order of the learned Single Judge, it has been observed that no proof had been brought to the notice of the court that the notice has been served before the expiry of six years period and it has been accepted that the same has been served on the writ petitioner on 10.2.2005, however, a stand has been taken by the Department that the notice must have been sent by registered post but, since the proof for the same has not been fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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