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TMI Blog2024 (1) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... me-Tax Act, 1961 (for short 'the Act') dated 9.9.2019 directing, inter-alia, to comply with the notice issued under Section 148 of the Act. It is the case of the petitioner that he has not received any notice under Section 148 of the Act. The petitioner, therefore, through his Chartered Accountant, addressed a letter dated 18.9.2019 to the respondent, informing that no such notice under Section 148 of the Act has been received. The petitioner again vide letter dated 4.10.2019 conveyed to the respondent authorities that no such notice under Section 148 of the Act was received by him. 2.3 Thereafter, the petitioner received a letter dated 22.11.2019 under caption 'providing reasons for reassessment', which states that the reasons are attached therewith. However, according to the petitioner, the said letter did not have any attachment as mentioned. On the very same day, the petitioner also received an order dated 22.11.2019 rejecting the objections which were filed by the petitioner. 2.4 In furtherance of the order dated 22.11.2019, the petitioner, on 28.11.2019, through e-proceedings portal, conveyed to the respondent that though it has been stated that the reasons for reopening ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice as well as the impugned order rejecting the objections and initiation of proceedings would fall flat on the said ground alone. (ii) It was submitted that to assume the jurisdiction under Section 147 of the Act for undertaking reassessment proceedings, notice under Section 148 of the Act is mandatorily to be served within the limitation prescribed under Section 149 of the Act. It was further pointed out that admittedly, the said notice, even if assumed to have been served as per the observations made in the impugned order, is on a wrong address and thereby, according to learned advocate for the petitioner, there cannot be any valid service of notice. (iii) To substantiate the aforesaid contentions, learned advocate for the petitioner has placed heavy reliance on the decision of the Coordinate Bench of this Court in the case of Rambhai Mafatlal Patel v. Income Tax Officer, Ward 3, Patan, reported in (2021) 128 taxmann.com 141 (Gujarat). 4.1 By making above submissions, learned advocate for the petitioner urged this Court to allow the petition as prayed for. 5. Per contra, learned advocate Mr.Nikunt Raval for the respondent, while supporting the impugned order, has mainly m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was- (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.]" A bare perusal of Section 292 BB of the Act of 1961 reveals that it applies to a case where the assessee has appeared in a proceeding and cooperated in any inquiry relating to an assessment or reassessment. In such circumstances, it has been declared that such conduct of the assessee shall be deemed to be a valid notice under the provisions of the Act of 1961, duly served upon the assessee as well as served within time. Therefore, according to this Section even if no notice was issued and was not served upon the assessee but he voluntarily by any reason, appeared in assessment or reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under the 1922 Act. In Y. Narayana Chetty v. Income Tax Officer, Nellore [1959] 35 ITR 388 (SC) the Supreme Court observed in the context of Section 34 of the 1922 Act: "The notice prescribed by section 34 of the Income tax Act for the purpose of initiating reassessment proceedings is not a mere procedural requirement; the service of the prescribed notice on the assessee is a condition precedent to the validity of any reassessment made under section 34. If no notice is issued or if the notice issued is shown to be invalid then the proceedings taken by the Income- tax Officer without a notice or in pursuance of an invalid notice would be illegal and void." 11. This was also the basis for the decision in Banarasi Debi v. ITO (1964) 53 ITR 100 (SC). However, under the 1961 Act the procedural requirement has been spread over three sections, being Sections 147, 148 and 149. The period of limitation within which notice under Section 148 has to be issued is specified in Section 149. Section 153 (2) of the Act stipulates that no order of re-assessment can be passed beyond the period of one year from the expiry of the financial year in which service of the notice was effected. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s neither a member of the family of the Assessee nor his duly authorized agent. However, S had been accepting the notice on behalf of the Assessee and prosecuting the cases on his behalf earlier before the income tax authorities. The High Court held: "The object of issuance the notice or summons is to intimate the concerned person to appear and answer the queries or the question sought to be clarified by a Court or the authorities. As serious consequences are likely to follow, a notice or summons must necessarily be issued and served in the form and in the manner prescribed by law." 16. The High Court in Dina Nath (supra), referred to Order V Rule 12 CPC as well as Order III Rule 6 CPC. It thereafter concluded that notice must be served personally upon the individual or upon his agent duly authorized in terms of Order III Rule 6 CPC. The contention of the Assessee was upheld and the reassessment proceeding was quashed. 17. In Jayanthi Talkies Distributors v. Commissioner of Income-tax (1979) 120 ITR 576 (Mad), the notice was served by the notice-server of the Department on the Manager of the assessee-firm. The Manager wrote to the ITO seeking time. Since no return was filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs for reassessment under Section 34 of 1922 Act." It was further held that "service of notice under Section 34 (1) (a) within the period of limitation being a condition precedent to the existence of jurisdiction, if the Income-tax Officer was unable to prove that the notice was duly served upon the Respondent within the prescribed period, any return filed by the Respondent after the expiry of the period of eight years will not invest the Income-tax Officer with authority to reassess the income of the Respondent pursuant to such return." On the facts of that case it was held that the Revenue had sufficiently discharged the onus by producing the affidavit of the process server. 20. Ms. Bhatt, the learned Senior Standing Counsel, in support of her submissions, seeks to rely upon a recent pronouncement of the Supreme Court in the case of Principal Commissioner of Income Tax, Mumbai vs. IVen Interactive Limited, Mumbai reported in [2019] 418 ITR 662 (SC). 21. We have looked into the aforesaid decision of the Supreme Court and are of the view that the same does not help the Revenue in any manner. In the said case, notice under Section 143(2) of the Act was sent by the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of notices, writs and process, has been attributed the meaning, to send out; to place in the hands of the proper officer for service. The expression shall be issued as used in section 149 would therefore have to be read in the aforesaid context. In the present case, the impugned notices have been signed on 31.03.2010, whereas the same were sent to the speed post centre for booking only on 07.04.2010. Considering the definition of the word issue, it is apparent that merely signing the notices on 31.03.2010, cannot be equated with issuance of notice as contemplated under section 149 of the Act. The date of issue would be the date on which the same were handed over for service to the proper officer, which in the facts of the present case would be the date on which the said notices were actually handed over to the post office for the purpose of booking for the purpose of effecting service on the petitioners. Till the point of time the envelopes are properly stamped with adequate value of postal stamps, it cannot be stated that the process of issue is complete. In the facts of the present case, the impugned notices having been sent for booking to the Speed Post Centre only on 07.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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