TaxTMI 
TaxTMI 
2021 (3) TMI 1173
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....writ of mandamus and/or any other writ direction or order to quash and set aside all further subsequent notices and summons including all proceedings in continuation and in consonance with the notice u/s 148 dated 30.3.2018 said to have been issued and served by the respondent upon the petitioner, though the same is never received by the petitioner. (C) Pending admission, hearing and disposal of this petition, ad­interim relief be granted and the respondent be ordered to restrain from taking any other steps in this regard including ex. parte order or implementation of the preliminary order dated 1.11.2018 at Annexure G and further notices issued for purpose of reassessment and all further subsequent notices and summons including all proceedings in continuation and in consonance with the notice u/s 148 dated 30.3.2018 said to have been issued and served by the respondent upon the petitioner, though the same is never received by the petitioner. (D) Award the cost of this petition. (E) Grant such other and further reliefs as this Hon'ble Court deems fit." 2. The order passed by a Coordinate Bench of this Court dated 27th November 2018 in the prese....
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.... Bhatt, the learned Senior Standing Counsel appearing for the Revenue has vehemently opposed this writ application and submitted that the writ applicant had his agricultural land at Kalol, District : Gandhinagar. No sooner the department came to know about the sale transaction of the land situated at Kalol then the impugned notice was issued to the writ applicant at the address at Kalol. Ms. Bhatt would submit that it came to the notice of the department that the assessee had sold a parcel of agricultural land owned by him during the year under consideration and the case on hand is one of Non­PAN. In order to verify the sale transaction and as the assessee had not filed any return of income for the A.Y. 2011­12, the Assessing Officer has reasons to believe that the income to the tune of Rs. 47,50,000/­ has escaped assessment by reason of failure on the part of the assessee to disclose fully and truly all the material facts necessary for its assessment for the assessment year. However, Ms. Bhatt very fairly pointed out that in the sale deed itself, the residential address of the writ applicant is shown to be that of village : Khorsam, Taluka : Chanasma, District : Patan,....
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.... 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 reassessment proceeding, he is precluded thereafter from taking objection with respect to the service in time. In the case on hand, the Revenue does not seek to rely....
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.... 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 re­assessment can be passed beyond the period of one year from the expiry of the financial year in which service of the notice was effected. Section 148 (1), however, is clear that no reassessment can take place without service of notice being effected on ....
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....ver, 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 assessee­firm. The Manager wrote to the ITO seeking time. Since no return was filed by the Assessee within the time granted, the ITO completed the reassessm....
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....ther 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 Income­tax 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 Income­tax 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 Officer to the assessee at the address as mentione....
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.... 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 07.04.2010, the date of issue of the said no....