TMI Blog2017 (9) TMI 1809X X X X Extracts X X X X X X X X Extracts X X X X ..... ear, assessment list cannot be amended for that year. Thus, on the basis of such a notice, there could not have been assessment for the Assessment Year 1997-98. When such a notice which received on April 4, 1998, whether it was open to the Assessing Officer to revise the assessment for the Assessment Year 1998-99 and Assessment Year 2001-02? - HELD THAT:- Since the notice was received when the Assessment Year 1997-98 had come to an end and Assessment Year 1998-99 had commenced, we have held that assessment list could not be amended from the year 1997-98. It is to be kept in mind that for the aforesaid reason, notice itself does not invalidate. Therefore, if it was not permissible to amend the list w.e.f. April 1, 1997, at the same time it could always be done w.e.f. April 1, 1998 as the notice had been received in that Assessment Year, namely, on April 4, 1998. In the instant case, though the date given in the notice was April 1, 1997, it was not permissible for the Corporation to release the tax from April 1, 1997 as the notice was not received in that Assessment Year but was received only in the next Assessment Year i.e. 1998-99. Therefore, the assessment carried out, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenged by the respondent by filing an appeal under Section 169 of the Act before the Additional District Judge, Delhi. The ground raised was that the notice dated March 25, 1998 was, in fact, received by it through registered post only on April 4, 1998 and, therefore, the same was time barred. Another ground taken was that the notice in question could not be used for finalising assessments of later and subsequent years in the absence of independent notices in that regard. The Additional District Judge, Delhi vide its judgment dated July 12, 2001 allowed the appeal, holding that the notice proposing enhancement in rateable value had to be served on or before March 31, 1998 and since it was served only on April 4, 1998, the same was time barred. Aggrieved thereupon, the appellant filed Civil Writ Petition No. 672 of 2002 before the High Court of Delhi. The single Judge by order dated February 21, 2002 affirmed the view taken by the Additional District Judge and dismissed the writ petition. The said order of the single Judge was challenged by the appellant herein before the Division Bench of the High Court in intra court appeal. By impugned order dated March 4, 2005, the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year commencing on the 1st day of April, 1988, or any other year thereafter, after the expiry of three years from the end of the year in which the notice is given under sub-section (2) or sub-section (3), as the case may be: Provided that nothing contained in this sub-section shall apply to a case where the Commissioner has to amend the assessment list in consequence of or to give effect to any direction or order of any court. Explanation.-In computing the period referred to in clause (a) or clause (b), any period or periods during which the proceedings for the assessment were held up on account of any stay or injunction by the order of any court, or the period of any delay attributable to the person to whom the notice has been given under sub-section (2) or sub-section (3), as the case may be, shall be excluded. THE IMPUGNED JUDGMENT 4) The judgment under challenge reveals that two issues were posed for consideration by the High Court, namely: (i) Whether notice under Section 126 of the Act which was received on April 4, 1998 i.e. after March 31, 1997 would be invalid as beyond the period of limitation prescribed as per Section 126(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has held that it provides for only one situation where the time period can be stretched, viz. where the assessment is held up (after due service of notice) due to a stay order by a court of law. That covers only one eventuality, namely assessment proceedings. The fact that the other periods have not been mentioned leads to the inference that the delay in issuance of notice, or delays in other situations have been intentionally left out, and the consequence of such imperatively framed time period being breached, result in invalidity of the act. In forming this opinion, the High Court has relied upon a judgment of the Constitution Bench of this Court in Superintendent of Taxes v. Onkarmal Nathmal Trust (1976) 1 SCC 766. THE ARGUMENTS 9) After pointing out the facts of the case, learned counsel for the Corporation reiterated the contentions which were taken by the appellant before the High Court and which have already been reproduced above. He heavily relied upon the judgment dated May 12, 2003 of the High Court passed in CW No. 1473 of 1989 and contended that even if the said notice was time barred in respect of Assessment Year 1997-98, the same was we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artnership at its principal place of business, identifying it by the name or style under which its business is carried on, and is either- (i) sent by registered post, or (ii) delivered at the said place of business; (c) where the person to be served is a public body, or a corporation, society or other body, if the document is addressed to the secretary, treasurer or other head officer of that body, corporation or society at its principal office, and is either- (i) sent by registered post, or (ii) delivered at that office; (d) in any other case, if the document is addressed to the person to be served and- (i) is given or tendered to him, or (ii) if such person cannot be found, is affixed on some conspicuous part of his last known place of residence or business, if within the Union territory of Delhi, or is given or tendered to some adult member of his family or is affixed on some conspicuous part of the land or building, if any, to which it relates, or (iii) is sent by registered post to that person. (2) Any document which is required or authorised to be served on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... changeable terms and, therefore, notice would be treated to have been issued only when the entire process of sending the notice i.e. from dispatch till the service thereof, is complete. 14) From the aforesaid, it follows that notice as contemplated under Section 126, was given only on April 4, 1998. Such a notice was clearly not valid for revising the assessment list for the year 1997-98. Reason is obvious and does not need elaboration. The entire basis of an assessment, and in the present case amendment to assessment list, is the issuance of notice. This factor assumes considerable significance because the rateable value is sought to be made effective from commencement of the year in which the notice is given. Even, if the notice is given on the last date of the concerned year, it nevertheless relates back and the consequence of a higher rateable value follows. However, if the notice is not so issued before the expiry of an assessment year, assessment list cannot be amended for that year. We, therefore, agree with the High Court that on the basis of such a notice, there could not have been assessment for the Assessment Year 1997-98. 15) We now address the secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is obvious that in the normal course, the amendment could have been applicable with effect from the date proposed in the notice. In the instant case, though the date given in the notice was April 1, 1997, it was not permissible for the Corporation to release the tax from April 1, 1997 as the notice was not received in that Assessment Year but was received only in the next Assessment Year i.e. 1998-99. Therefore, the assessment carried out, which was done within three years from the issuance of notice i.e. the time stipulated by sub-section (4) of Section 126 of the Act, the assessment was otherwise valid and could be made applicable from April 1, 1998. This view of ours gets due support from classic judgment of this Court in the case of Shyam Kishore s case. Following discussion, germane to the issue at hand, needs to be noted in this behalf: 18. The scheme of Sections 124, 125 and 126 read with the bye-laws is that the assessment has to be duly authenticated by the Commissioner or an officer on his behalf but this list is subject to the other provisions of the Act including Section 126 and the bye-laws and Civil Appeal No. 8675 of 2011 Page 15 of 18 once a notice h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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