TMI Blog2024 (1) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... e day on which old provisions stood substituted with new provisions. The hard copy of the same notice was also despatched to the petitioner on 07.04.2021 and was also received by the petitioner on the following day. As per Sub-section (2) to Section 282 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. As per Rule 127A(1)(a)(i) of the IT Rules, 1962, every notice or other document communicated in electronic form by an authority under the Act shall be deemed to be authenticated in case of electronic mail or electronic mail message (e-mail), if the name and office of such income tax authority is printed on the e-mail body, if the notice or other document is in the e-mail body itself and the e-mail, is issued from the designated e-mail address of such income tax authority. Similarly, every notice or other document communicated in electronic form by an authority under the Act shall be deemed to be authenticated in case of electronic mail or electronic mail message (email), if the name and of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents : Mr. R.S. Balaji Senior Standing Counsel ORDER 1. The petitioner is aggrieved by the Impugned Notice dated 31.03.2021 notice issued by the second respondent under Section 148 of the Income Tax Act, 1961 for the Assessment Year 2014-2015. 2. The petitioner, a senior citizen and a retired Central Government Employee appears to have sold an ancestral property during 2014. The petitioner had filed the Income Tax Return for the Assessment Year 2014-2015 on 24.04.2021. 3. Income from sale of the said property was not included in the income of petitioner on the ground that it was an income from sale of an agricultural property and therefore agricultural income and therefore not liable to income from capital gains. 4. A notice dated 31.03.2021 was issued to the petitioner under Section 148 of the Income Tax Act, 1961 (In short IT Act, 1961) for the Assessment Year 2014-2015, as it stood prior to the substitution/repeal with its new set of provisions with effect from 01.04.2021. The said notice was issued to the petitioner on the ground that the petitioner had not declared income from the sale of the said property in the return filed on 24.04.2021 for the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om today provide to the assessees the information and material relied upon by the Revenue so that the assessees can reply to the notices within two weeks thereafter; (ii) The requirement of conducting any enquiry with the prior approval of the specified authority under section 148A(b) be dispensed with as a onetime measure vis-a-vis those notices which have been issued under section 148 of the unamended Act from 1-4-2021 till date, including those which have been quashed by the High Courts; (iii) The assessing officers shall thereafter pass an order in terms of section 148A(d) after following the due procedure as required under section 148A(b) in respect of each of the concerned assessees; (iv) All the defences which may be available to the assessee under section 149 and/or which may be available under the Finance Act, 2021 and in law and whatever rights are available to the Assessing Officer under the Finance Act, 2021 are kept open and/or shall continue to be available and; (v) The present order shall substitute/modify respective judgments and orders passed by the respective High Courts quashing the similar notices issued under unamended Section 148 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under Section 151 of the IT Act, 1961. It is further submitted that one Mr.Trilok Singh, Income Tax Officer, Ward 67(1) had signed same recording his satisfaction to reopen the assessment on the ground that income escaped assessment. 17. It is submitted that the said communication dated 27.01.2022 was counter signed by the Additional Commissioner of Income Tax, Range-67, Delhi and approved/sanctioned by the Principal Commissioner of Income Tax, Delhi-15 only later. 18. It is submitted that it is evident on a bare perusal of the Form for recording reasons for initiating proceedings under Section 147 and for obtaining sanction under Section 151 of the IT Act, 1961, the information with respect to sale of agricultural lands was received as early as on 30.11.2018 from the Income Tax Officer, Chennai. 19. It is submitted that therefore submitted that the impugned notice dated 31.03.2021 issued after more than two years since then was clearly an afterthought. It is therefore submitted that it can be logically concluded that the second respondent had this information with him long back and was satisfied that no income escaped assessment. The undated sanction by the higher off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was delivered to the petitioner on the following day. 24. It is submitted that the question of violation of principles of natural justice would not arise as the respondents have issued several notices under Section 143(2) and 142(3) of the Act calling upon the petitioner to file evidences to which the petitioner has also replied. 25. It is submitted that notice was issued on 31.03.2021 and the system delivered the notice to the petitioner on the following day. However, the fact remains that the notice has been issued on the date when it was signed digitally at about 8.16 p.m. on 31.03.2021. 26. The learned Senior Standing Counsel further submits that under similar circumstances, this Court has also dismissed a writ petition in W.P. No. 27997 of 2021 by its order dated 29.03.2022 in Malavika Enterprises Vs. Central Board of Direct Taxes, [2022] 137 taxmann.com 398 (Madras). 27. By way of rejoinder, the learned Counsel for the petitioner submits that the decision of the Division Bench of this Court in Malavika Enterprises case (referred to supra) is prior to the decision of the Hon'ble Supreme Court in Ashish Agarwal's case (referred to supra). 28. I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears from the end of the relevant year. It also provides further additional safeguards which were absent under the earlier regime pre-Finance Act, 2021. 31. The last date for issuance of the notice under Section 148 of the IT Act, 1961 for the Assessment Year 2014-2015 to the petitioner was on 31.03.2021 under the old regime prior to 1.4.2021. 32. The last day for issuing notice for re-opening the assessment for the Assessment Year 2014-2015 in a case where income escaped assessment under proviso to Section 147 of the IT Act, 1961 expired on 31.03.2021. 33. The impugned notice was digitally signed on 31.03.2021 i.e., on the date on which the old Section 148 was still in force prior to its substitution with effect from 01.04.2021. The impugned notice was delivered for despatch in the system for delivery to the petitioner. 34. The impugned notice was delivered to the petitioner on the following date at 7.12.04 a.m, the day on which old provisions stood substituted with new provisions. The hard copy of the same notice was also despatched to the petitioner on 07.04.2021 and was also received by the petitioner on the following day. 35. In Union of India and Others vs. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sections 147 to 151 of the Income Tax Act, 1961 as per the Finance Act, 2021, subject to compliance of all the procedural requirements and the defences, which may be available to the assessee under the substituted provisions of Sections 147 to 151 of the Income Tax Act, 1961 and which may be available under the Finance Act, 2021 and in law. 25. Therefore, we propose to modify the judgments and orders passed by the respective High Courts as under:- i. The respective impugned Section 148 notices issued to the respective assessees shall be deemed to have been issued under Section 148-A of the Income Tax Act, 1961 as substituted by the Finance Act, 2021 and treated to be show-cause notices in terms of Section 148-A(b). The respective assessing officers shall within thirty days from today provide to the assessees the information and material relied upon by the Revenue so that the assessees can reply to the notices within two weeks thereafter; ii. The requirement of conducting any enquiry with the prior approval of the specified authority under Section 148-A(a) be dispensed with as a one-time measure vis- -vis those notices which have been issued under Section 148 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 3rd and the 4th mentioned notification above were issued under Section 3 of the Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance Act, 2020. They stipulated that the provisions, as they existed prior to the amendment by the Finance Act, 2021, shall apply to the reassessment proceedings initiated there under. 40. The amendment to the provisions of Income Tax Act, 1961 with effect from 01.04.2021 by Finance Act, 2021, is of no relevance to the facts of the case as the notice was digitally signed and issued on 31.03.2021. 41. The facts of the petitioner's case is different from the facts of the cases that were covered by the decision of the Hon'ble Supreme Court in Ashish Agarwal's case (referred to supra) and the decision of the Division Bench of this Court in Parveen Amin Bhathara's case (referred to supra), relied upon the by the petitioner. 42. Therefore, the reliance placed by the petitioner on the decision of this Court in a batch of writ petitions by a common order dated 04.02.2022 in the case of Vellore Institute of Technology vs. Central Board of Direct Taxes and another rendered in W.P. No. 15019 of 2021 and etc., setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledge of the proposer. The communication of a revocation is complete, as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it; as against the person to whom it is made, when it comes to his knowledge. 46. The expression used in Section 149 of the IT Act, 1961 is issued. Issuance of notice under Section 148 of the IT Act, 1961 is therefore deemed to be complete once notice is ready for being delivered or being dispatched. The fact that the impugned notice was digitally signed on 31.3.2021 makes it clear that the impugned notice was issued under the old provision. Further, under Sub-section (1) to Section 282 of the IT Act, 1961, the service of a notice or summon or requisition or order or any other communication under this Act (hereafter in this Section referred to as communication ) may be made by delivering or transmitting a copy thereof, to the person therein named:- (a) by post or by such courier services as may be approved by the Board; or (b) in such manner as provided under the Code of Civil Procedure, 1908 (5 of 1908) for the purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned and delivered for being despatched whether through post or through e-mail it is deemed to have been issued for the purpose of Section 149 of the IT Act, 1961. Communication and delivery of such communication can be on a date after it is issued. 53. Section 149 of the IT Act, 1961 as it stood prior to its substitution with effect from 01.04.2021 which has been extracted above also makes it clear no notice under Section 148 shall be issued for the relevant assessment year in terms of the sub-clause (a), (b) (c) to Section 149(1) of the IT Act, 1961 54. It is not the actual communication of the notice that is relevant. It is the issuance of the notice. Notice can be issued on the last date. All that is required is that it should be dispatched. Once the notice has been dispatched either electronically or through post on the last date prescribed under Section 149 of the IT Act, 1961, the proceeding cannot be questioned as time barred. The decision of the Supreme Court in Ashish Agarwals Case rendered on 04.05.2022 which was in the context of delay due TLA Act, 2020 will not come to the rescue of the petitioner. 55. It therefore cannot be said that either the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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