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TMI Blog2022 (8) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... dment of Certain Provisions) Act, 2020 [for brevity, "the TOLA Act, 2020"]) and the Income Tax Act, 1961 [for brevity, "the Act of 1961"]. 2. For convenience, we are referring to the facts of W.P.No.27997 of 2021 filed by Malavika Enterprises. 3. Learned counsel for the petitioner submits that the Explanation to Clause A(a) contained in the impugned notifications indirectly extends the operation of the old provisions of the Act of 1961 beyond 31.3.2021 under the guise of a clarification by a delegated legislation and, therefore, has to be declared as unconstitutional. He further submits that when the time limit for issuance of notice under Section 148 of the Act of 1961 stood expired between 20.3.2020 and 31.12.2020, by virtue of the Explanation to Clause A(a) the powers under the old provisions are indirectly extended by way of the notifications. 4. It is further submitted that Section 3(1) of the TOLA Act, 2020 permits the Central Government to issue notification for completion of any proceeding, passing of any order, or issuance of any notice under the provisions of the Specified Act. The impugned notifications issued by the Central Board of Direct Taxes are ultra vires insof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision, i.e. the old provision of Section 148 of the Act of 1961, as it stood prior to 1.4.2021 and, therefore, is liable to be set aside. 9. To substantiate his argument, learned counsel for the petitioner relied on a judgment of the Division Bench of the Allahabad High Court in the case of Daujee Abhushan Bhandar Pvt Ltd v. Union of India and others [Judgment dated 10.3.2022 in Writ Tax No.78 of 2022] and submitted that the very same issue has been taken up and decided by the Allahabad High Court and is applicable to this case. The prayer was made accordingly to govern the present writ petitions by the judgment supra. 10. Learned counsel for the petitioners appearing in other writ petitions also argued in the same line. 11. We have considered the submissions made by learned counsel for the petitioners. 12. In this batch of cases, each assessee has preferred two writ petitions - one challenging the Explanation to Clause A(a) and the impugned notifications issued from time to time and the other challenging the notices issued under Section 148 of the Act of 1961 on the ground that such notices could not have been issued under the old Act when notices were served after 31.3.2021. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as specified in sub-section (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice. Explanation.- For the removal of doubts, it is hereby declared that nothing contained in the first proviso or the second proviso shall apply to any return which has been furnished on or after the 1st day of October, 2005 in response to a notice served under this section. (2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so. 149. Time limit for notice. (1) No notice under section 148 shall be issued for the relevant assessment year,- (a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b) or clause (c); (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year; (c) if four years, but not more than sixteen years, have elapsed from the end of the relevant assessment year unless the income in relation to any asset (including financial interest i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s provided by rules made by the Board in this behalf. (2) The Board may make rules providing for the addresses (including the address for electronic mail or electronic mail message) to which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named. Explanation.-For the purposes of this section, the expressions 'electronic mail' and 'electronic mail message' shall have the meanings as assigned to them in Explanation to section 66A of the Information Technology Act, 2000 (21 of 2000)." "282A. Authentication of notices and other documents.- (1) Where this Act requires a notice or other document to be issued by any income-tax authority, such notice or other document shall be signed and issued in paper form or communicated in electronic form by that authority in accordance with such procedure as may be prescribed. (2) Every notice or other document to be issued, served or given for the purposes of this Act by any income-tax authority, shall be deemed to be authenticated if the name and office of a designated income-tax authority is printed, stamped or otherwise written thereon. (3) For the purposes of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or document shall be signed and issued in paper form or communicated in electronic form in accordance with such procedure as may be prescribed. Sub-section (2) of Section 282A of the Act of 1961 is quite relevant. It provides that every notice or document to be issued, served or given for the purposes of this Act by any income tax authority shall be deemed to be authenticated if the name and office of a designated income tax authority is printed, stamped or otherwise written thereon. 16. Rule 127A of the Rules of 1962, extracted above, provides that every notice or other document communicated in electronic form by an income tax authority under the Act shall be deemed to be authenticated in case of electronic mail or electronic mail message, if the name and office of such income-tax authority is printed on the email body and if the notice or other document is in the email body itself. Rule 127A of the Rules of 1962 is elaborate and would further be discussed subsequently. 17. In the facts of the present case, it is not in dispute that notice under Section 148 of the Act of 1961 is an electronically generated notice issued on 31.3.2021. The petitioner has raised issue about the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctionary meaning of both the words were thereafter taken and after considering different judgments, the Division Bench finally came to the conclusion that mere digitally signing the notice is not issuance of notice. The impugned notice under Section 148 of the Act of 1961 in that case was received on 6.4.2021 and, therefore, it was treated to be time barred. 21. What we find relevant from the judgment in Daujee Abhushan Bhandar Pvt Ltd, supra, is consideration of facts given in paragraph 3 with a conclusion in the last paragraph and for ready reference, both these paragraphs are quoted herein: "3. Subsequently, the Assessing Authority attempted to initiate proceedings under Section 148 of the Act, 1961. For this purpose, a notice under Section 148 of the Act, 1961 for the Assessment Year 2013-14 was digitally signed by the Assessing Authority on 31.3.2021. It was sent to the assesses through e-mail and e-mail was undisputedly received by the petitioner on his registered e-mail I .D. on 06.04.2021. The limitation for issuing notice under Section 148 read with Section 149 of the Act, 1961 was upto 31.03.2021 for the Assessment Year 2013-14. ... 30. In view of the discussion m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody, if the notice or other document is in the e mail body itself, or is printed on the attachment to the e-mail, if the notice or other document is in the attachment and the e-mail, is issued from the designated e-mail address of such income tax authority. Thus, the issuance of notice and other document would take place when the email is issued from the designated e-mail address of the concerned income tax authority. 18. Since Section 149 of the Act 1961 requires notice to be issued by Income Tax Authority, therefore, in terms of sub Section (1) of Section 282 A it has to be signed by that authority and to be issued in paper form or communicated in electronic form by that authority in accordance with procedure prescribed. 19. The communication in electronic form has been prescribed in Rule 127 A of the Rules 1962 which provides a procedure for issuance of every notice or other document and the e-mail in electronic form/electronic mail which has to be issued from the designated e-mail address of such income tax authority. 20. Thus, after digitally signing the notice the income tax authority has to issue it to the assessee either in paper form or through electronic mail. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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