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TMI Blog2023 (1) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... residing in Dubai, UAE and since his total income for the relevant financial year was below the maximum amount chargeable to tax, he was not required to file his return of income for the relevant assessment year 2015-16. It was further his case that he received a notice dated 21.03.2022 under clause (b) of section 148A of the Act from Respondent No.1 stating that he had information that the income chargeable to tax for the relevant assessment year had escaped assessment, within the meaning of section 147 of the Act and called upon the petitioner to show-cause why a notice u/s.148 of the Act should not be issued. Details of the information received was enclosed as Annexure 'A' to the said notice. 4. The petitioner filed his response to the said notice electronically on 28.03.2022, pursuant to which, Respondent No.1 addressed an order under clause (d) of section 148A of the Act on 02.04.2022. It is the petitioner's case that this order was never received by him through e-mail; however, he has subsequently received a copy of this order on 16.04.2022 by speed post. 5. The petitioner further contends that Respondent No.1 issued notice u/s.148 of the Act dated 02.04.2022 stating that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontain manual signature, nor was it digitally signed on the file. 8. We have heard the learned counsel for the parties and perused the record of the petition. 9. It is the submission of the learned counsel for the petitioner that on perusal of the affidavit-in-reply of the respondents, there appears to be no categorical denial to the statements made by the petitioner that he has not received an order dated 02.04.2022 passed under clause (d) of Section 148A of the Act, rejecting the petitioner's submission and holding the petitioner's case to be one fit for issuing notice u/s.148 of the Act. Similarly, there is no substantial denial to the fact that the notice issued u/s. 148 dated 02.04.2022 was unsigned both digitally and manually and was never received by the petitioner by e-mail or for that matter even uploaded onto the system via e-mail. Further, a copy of the said unsigned notice was received by the petitioner by speed post only on 16.04.2022. 10. It is, therefore, the contention of the petitioner that the notice u/s.148 being an unsigned notice, the same is invalid and consequently proceeding on the basis of an invalid notice vitiates the entire reassessment proceedings as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Calcutta in B.K. Gooyee (supra) was considering the legal impact of an unsigned notice issued u/s.34 of the Income Tax Act, 1922 and whether there can be a waiver of a right of an assesse to challenge the same on the ground that the notice was unsigned. Whilst holding that a lack of signature on a notice invalidates the same, it has further gone on to hold that there can be no waiver to the right of an assessee to raise this objection where the condition precedent for assuming jurisdiction by the Assessing Officer is not fulfilled. To quote from the judgment it holds:- In the present case there was more than a mere irregularity or a clerical mistake for, in my view, a notice without the signature lacks an essential and/or an integral and/or an inseparable vital part or requirement of a notice under section 34, a notice in terms of which is a condition precedent to the assumption of jurisdiction by the Income-tax Officer. It is notice with a body but without a soul. Hence, it is an invalid notice and consequently equivalent to no notice. Hence, these cases do not militate against the principle that there can be no waiver where the condition precedent for assumption of jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in section 292B. We are in respectful agreement with the view of their Lordships in Umashankar Mishra's case (supra) based on which the Tribunal in the case on hand reversed the order of the Commissioner of Income-tax (Appeals). 7. The observations in B.K. Gooyee's case (supra), which, in our view, have material bearing on the questions raised before us are extracted hereunder : "In the present case, there was more than a mere irregularity or a clerical mistake, for, in my view, a notice without the signature lacks an essential and/or an integral and/or an inseparable vital part or requirement of a notice under section 34, a notice in terms of which is a condition precedent to the assumption of jurisdiction by the Income-tax Officer. It is notice with a body but without a soul. Hence, it is an invalid notice and consequently, equivalent to no notice." 8. The service of a valid notice, as already noticed, is a condition precedent to the assumption of jurisdiction by the Assessing Officer. The existence of a valid notice is, therefore, a jurisdictional fact. The question, therefore, is not to be looked at from the perspective that the decision to issue notice was by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which are a condition precedent to the assumption of jurisdiction by the Income-tax Officer. It is notice with a body but without a soul. Hence, it is an invalid notice and consequently, equivalent to no notice." 5. We respectfully agree with the aforesaid observations. The Tribunal distinguished the decision in [1966] 62 ITR 109 on the ground that the provisions of section 292B of the Act were introduced after that decision. But, that provision, in our opinion, is intended to ensure that an inconsequential technicality does not defeat justice. But, the signing of a notice under section 271(1)(a) of the Act is not merely an inconsequential technicality. It is a requirement of the provisions of O.5, rule 1(3) of the CPC, which are applicable by virtue of section 282 of the Act. Under the circumstances, the provisions of section 292B of the Act would not be attracted in the instant case and the Tribunal in our opinion, was not right in holding that the notice issued under section 271(1)(a) of the Act was a valid notice in the eye of law. 6. In view of our answer to the first question, our answer to the second question is that the Tribunal was not right in holding that the abse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving been affixed on the notice issued u/s.148 of the Act, the notice itself would be invalid and consequently, the Assessing Officer could not assume jurisdiction to proceed in the matter in terms of section 148 of the Act. The Madhya Pradesh High Court in Umashankar Mishra (supra) has dealt with a similar fact situation where the first substantial question of law dealt with in that case had considered the effect of whether an unsigned notice can be considered as an irregularity or clerical mistake. The Madhya Pradesh High Court after making reference to the conclusions drawn in B.K.Gooyee (supra) by the Calcutta High Court, has taken the view, that a notice without a signature affixed on it is an invalid notice and is effectively no notice in the eyes of law. 20. The Madhya Pradesh High Court in Umashankar (supra) has further dealt with the second substantial question of law as to whether the Tribunal was right in holding that the absence of a signature on the notice constitutes a mistake or omission within the meaning of section 292B of the Act and while addressing itself to that question, has concluded that in the absence of a signature on the notice, the same would not const ..... 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