TMI Blog2021 (5) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'issue of notice' and not 'service of notice' to the assessee. The service part is to be complied with subsequently enabling the assessee to defend his case. Undoubtedly, the assessee can defend his case only after service. However, for reckoning the period of limitation 'issue of notice' is sufficient. As following the principles laid down in GKN Driveshafts (India) Ltd [ 2002 (11) TMI 7 - SUPREME COURT] the respondents are bound to provide opportunities and assign reasons by following the procedures contemplated as well as the principles settled. With reference to the point of limitation, it is to be construed that the impugned notices under Section 148 of the Act, were signed by the Competent Authorities on 31.03.2018 and as per the typed set of papers filed by the respondents, the notices were dispatched on the same date i.e., on 31.03.2018, which would be sufficient to satisfy the requirements under Section 149 of the Act and thus, the petitioners are at liberty to defend the case as contemplated under the provisions of the Act. - WP Nos.13425, 13431, 13432 and 11399 of 2018 And WMP Nos.15819, 15826, 15827, 13308 and 13309 of 2018 - - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o establish that the respondents have served the letter on the last date, but it is to be established that the letter containing the notice served on the assessee on the last date. However, in WP Nos.13425, 13431 and 13432 of 2018, notices were not even served on the last date and were registered in the Post Office beyond the period of limitation. Therefore, the very issuance of notice itself is in violation under Section 27 of the General Clauses Act, 1897. 7. The learned counsel, appearing on behalf of the writ petitioners in WP Nos.13425, 13431 and 13432 of 2018 relying on the typed set of papers filed by the respondents, raised certain discrepancies in sending the impugned notices to the petitioners. 8. It is contended that there are certain discrepancies in the matter of making entries in the Dispatch Register and therefore, the respondents had not actually sent the impugned notices on the last date i.e., on 31.03.2018. As per the Franking facility provided by the Postal Department, the petitioners could able to find out that the consignment itself was booked on 02.04.2018 after the last date i.e., on 31.03.2018 and therefore, the notice itself is liable to be quashed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any income chargeable to tax has escaped assessment for any assessment, he is competent to institute proceedings under Section 147 of the Act by complying with the requirements as contemplated under the provisions of the Act. 16. Section 148 of the Act denotes 'issue of notice where income has escaped assessment'. Once the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment, then he is empowered to issue notice under Section 148 of the Act and the procedures to be followed under Section 148 are well enumerated in the provision itself. 17. Section 149 deals with 'time limit for notice'. Thus, Section 149 would be relevant as far as the grounds raised in WP Nos.13425, 13431 and 13432 of 2018 are concerned. 18. Initiation of Section 147 of the Act, cannot be dealt with at this point of time. The issue of notice under Section 148 and the time limit for notice under Section 149 would be relevant. In WP Nos.13425, 13431 and 13432 of 2018, admittedly, the petitioners have received the notices issued under Section 148 and however, they contend that it was dispatched belatedly and after expiry of the period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four years and six years as contemplated are enumerated under the provisions of the Act. However, the point to be considered is, whether the issuance of notice dispatched and the delivery of notice to the assessee, which is to be taken into consideration for the purpose of determining the period of limitation. 22. Section 149 of the Act contemplates that no notice under Section 148 shall be issued. Thus, it categorically enumerates the issuance of notice by the Competent Authority to the assessee, within a period of four years and six years, as the case may be. Thus, the language employed indicates issuance of notice . 23. 'Issuance of Notice' means, the order of notice is signed by the Competent Authority. Once the order of notice is signed by the Competent Authority, that is sufficient that the actions are initiated. Thereafter, delivery or receipt of the order is irrelevant as far as the requirements contemplated under the provisions of the Income Tax Act is concerned. Thus, for the purpose of issuance of notice under Section 149 of the Income Tax Act, it is sufficient to establish that if such an order/notice is signed by the Authority Competent and if this f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontemplation is traceable in some other provisions of the Act, for example Section 281 of the Income Tax Act. 27. As far as the contentions of the petitioners in WP Nos.13425, 13431 and 13432 of 2018 that Section 27 of the General Clauses Act, is to be invoked, this Court is of an opinion that the very provision states that, where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be 'served' by post. Therefore, the meaning of 'service by post' as defined under Section 27 of the General Clauses Act, 1897, may not have any applicability or relevancy as far as Section 149 of the Income Tax Act is concerned. 28. 'Issue of Notice' by the Competent Authority is contemplated under Section 149 of the Income Tax Act. However, 'Service of Notice' to the assessee has not been contemplated under the said provision. Thus, the 'time limit' prescribed for 'issue of notice' under Section 148 of the Income Tax Act, would not fall under the definition of 'service' under Section 27 of the General Clauses Act, 1897. Thus, Section 27 of the General Clauses Act, 1897 may not have rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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