TaxTMI 
TaxTMI 
2010 (7) TMI 704
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.... implementation/operation of the notice and orders to restrain the respondent from taking any further proceedings pursuant to the impugned notices at annexure B. (d) Award the cost of this petition. (e) Grant such other and further reliefs as this hon'ble court deems fit." 2. On June 29, 2010, this court had passed an order in the following terms : "Heard learned counsel appearing for the parties. Considering the controversy that relates to the meaning of the term issued as appearing in section 149 of the Act, rule returnable on July 13, 2010. To be listed on 2nd admission board for final disposal. Ad interim relief granted earlier to continue as interim relief till disposal of the petition." 3. Since the common questions of facts and law are involved, the petitions were taken up for hearing together and are disposed of by this common judgment. 4. The facts of the case as appearing in the petitions are that the petitioners were assessed to income-tax by the Income-tax Officer at Ahmedabad for the assessment year 2003-04. Return of income was filed along with statement of income, etc. None of the petitioners have received a....
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....re valid in view of the provisions of section 149(1) of the Act. It is submitted that the notice was issued on March 31, 2010 by the said office. That section 149 of the Act speaks of time limit for issue of notice and categorically prescribes that no notice under section 148 shall be issued after the prescribed limitation has lapsed. Once a notice is issued within the period of limitation, jurisdiction becomes vested in the Income-tax Officer to proceed to reassess. It is further averred that the notices were issued on March 31, 2010 as is also mentioned by the petitioner mentioning the date of notice, the service of the same may be late due to other reasons, which however will not affect the validity of notice issued. In the petition, it has been categorically averred that the petitioner had been provided information by the concerned post office that the covers for issuing the notices in question were sent for booking to the speed post centre only on April 7, 2010. Various documents have also been annexed in support thereof. As per the certificate annexed as annexure D to the petition, the speed post covers were booked on April 7, 2010 and delivered on April 8, 2010. However, the....
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....s opposed the petition, contending that as to whether the notices under section 148 of the Act have been issued within time limit, is essentially a question of fact and as such, the same cannot be decided in a writ petition under article 226 of the Constitution of India. In support of the contention, reliance is placed upon the decision of the Madhya Pradesh High Court in the case of Rajkumar Agrawal v. CIT [2008] 296 ITR 231 (MP), for the proposition that the issue as to (i) on what date the notice was signed, (ii) on what date it was issued, and lastly (iii) on what date it was served upon the assessee, needs to be examined on the facts and with reference to the original record of the case and for that purpose some enquiry is needed at the level of the Assessing Officer. The writ court is not the proper forum to hold such enquiry though limited in nature. It is, accordingly, submitted that there are two versions which are coming on record, one the version of the assessee and the other that of the Assessing Officer which would require adjudication on facts. The issues involved would require evidence to be led by either side ; hence, the writ court is not the proper forum to hold s....
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....ord produced before the court is sufficient to come to the conclusion that the notices had been sent for booking to the speed post centre only on April 7, 2010, in the absence of any evidence to the contrary being pointed out by the respondents, as well in the light of the fact that the said position as confirmed by the postal department has not been controverted by the Revenue. 11. In the background of the aforesaid facts, the court is required to examine the contention of the petitioners that the notices in question have been issued beyond the period of limitation prescribed under section 149 of the Act. 12. Section 149 of the Act in so far as the same is relevant for the purpose of the present petition reads thus : "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) ; (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....
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.... a moving out of any enclosed place ; egress ; the act of passing out ; exit; egress or passage out (Worcester Dict.) ; the ultimate result or end. As a verb, To issue means to send out, to send out officially ; to send forth ; to put forth ; to deliver, for use, or authoritatively : to put into circulation ; to emit ; to go out (Burrill) ; to go forth as a authoritative or binding, to proceed or arise from ; to proceed as from a source (Century Dict.) Issue of process. Going out of the hands of the clerk, expressed or implied, to be delivered to the Sheriff for service. A writ or notice is issued when it is put in proper form and placed in an officers hands for service, at the time it becomes a perfected process. Any process may be considered issued if made out and placed in the hands of a person authorised to serve it, and with a bona fide intent to have it served." 16. Thus, the expression "to issue" in the context of issuance 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 b....