TaxTMI 
TaxTMI 
2013 (8) TMI 818
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....48. The same can be summarized in three basic issues:- (i) The notice issued is barred by limitation because the assessment year involved is 2001-02 and the notice under Section 148 is handed over to the postal authorities on 1^st April, 2008. Thus, it is after more than six years from the end of the relevant assessment year. In support of this contention, he relied upon the decision of Hon'ble Gujarat High Court in the case of Kanubhai M.Patel (HUF) Vs. Hiren Bhatt Or His Successors To Office and Others - [2011] 334 ITR 25 (Guj). (ii) The notice is issued at the wrong address. That the address of the assessee is M/s On Exim Pvt.Ltd., 7, Mathura Road, Jangpura, New Delhi. The same address is given in the assessment order and in the appeal filed by the department before the ITAT. However, notice under Section 148 has been issued at the address M/s On Exim Pvt. Ltd., 550, Kucha Pati Ram, Bazar Sita Ram, Delhi. The said notice was never received by the assessee. (iii) The reasons given for reopening of assessment are vague and do not indicate any application of mind by the Assessing Officer. He issued the notice simply on the basis of certain information....
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....nt that the assesse was the beneficiary of the accommodation entries provided by M/s Aayushi Stock Brokers (P) Limited. That the Investigation Wing of the IT Department has no animosity with the assessee so as to send any incorrect information. The Assessing Officer formed the opinion of escapement of income on the basis of the information from the Investigation Wing of the IT Department who are responsible officers. Therefore, the Assessing Officer had sufficient material to form the opinion of escapement of income. He, therefore, submitted that the order of learned CIT(A) on this point should be sustained and the cross objection of the assessee be dismissed. 5. In the rejoinder, it is stated by the learned counsel that neither the notice under Section 148 nor the notice of hearing issued to the assessee company was served upon the assessee. The assesse appeared on one date of hearing before the Assessing Officer because apart from issuing notice to the company, the Assessing Officer had issued notice to the director at the residential address which was served upon director. He, therefore, submitted that the notice under Section 148 was issued at the wrong address. 6. We ....
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....rly 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 April 7, 2010, the date of issue of the said notices would be April 7, 2010 and not March 31, 2010, as contended on behalf of the Revenue. In the circumstances, the impugned notices under section 148 in relation to the assessment year 2003-04, having been issued on April 7, 2010 which is clearly beyond the period of six years from the end of the relevant assessment year, are clearly barred by limitation and as such, cannot be sustained." (emphasis by underlining supplied by us) 9. From the above, it is evident that Hon'ble Gujarat High Court has examined the expression "to issue" in the context of Section 149 and have come to the conclusion that 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, were postal authorities. Admittedly, in the case of the assessee also, the notice was handed over to the postal authorities on 1st April, 2008 which was beyon....
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....ew is taken in the case of Sarthak Securities Co. P. Ltd. (supra), wherein their Lordships held as under:- "allowing the petition, that the formation of belief was a condition precedent as regards the escapement of the tax pertaining to the assessment year by the Assessing Officer. The Assessing Officer was required to form an opinion before he proceeded to issue a notice. The validity of reasons, which were supposed to sustain the formation of an opinion, was challengeable. The reasons to believe were required to be recorded by the Assessing Officer. Once the ingredients of section 147 were fulfilled, the Assessing Officer was competent in law to initiate the proceedings under section 147. The Assessing Officer was aware of the existence of the four companies with whom the assessee had entered into transaction. Both the orders showed that the Assessing Officer was made aware of the situation by the investigation wing and there was no mention that these companies were fictitious companies. Neither the reasons in the initial notice nor the communication providing reasons remotely indicated independent application of mind. Though conclusive proof was not germane at this stag....