2021 (7) TMI 840

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....resent writ petitions. 2.The petitioner submitted his return of income which was assessed and an order of assessment was passed. However, the respondent issued notice under Section 148 of the Income Tax Act, for reopening of assessment on 31.03.2018. The learned counsel for the petitioner contended that the impugned notice as well as the corrigendum to notice are challenged on the ground that it was issued beyond the period of limitation, and therefore, the notices have no statutory sanction, thus, are to be set aside. 3.To substantiate the said ground, the learned counsel for the petitioner solicited the attention of this Court with reference to the postal cover, wherein, the stamp was franked by the Postal Department on 02.04.2018. ....

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....s Successors to Office and 4 others reported in (2010) 3 GLH 639, wherein, the Court allowed the writ petition on the ground that the notice was despatched beyond the period of limitation. The Hon'ble Supreme Court also held that reopening of assessment is to be done within the period of limitation contemplated under the Act. Any such notice issued beyond the period of limitation lacks sanction under the statute and to be construed as non-est in law. 5.The learned Senior Standing Counsel contested the grounds raised by the petitioner by stating that, admittedly, the assessment order was erroneously typed as 2010-11 instead of 2011-12. Thus, the respondent issued corrigendum to notice and corrigendum to notice cannot be construed as a....

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.... competent to institute proceedings under Section 147 of the Act by complying with the requirements as contemplated under the provisions of the Act. 16. Section 148 of the Act denotes 'issue of notice where income has escaped assessment'. Once the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment, then he is empowered to issue notice under Section 148 of the Act and the procedures to be followed under Section 148 are well enumerated in the provision itself. ... 19. Section 149 of the Act denotes 'no notice under Section 148 shall be issued for the relevant assessment year if four years have lapsed, which reads as under:- ?149. Time limit for notic....

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....d of the relevant assessment year. Explanation.?For the removal of doubts, it is hereby clarified that the provisions of sub~sections (1) and (3), as amended by the Finance Act, 2012, shall also be applicable for any assessment year beginning on or before the 1st day of April, 2012.?" 20. Section 149 of the Act unambiguously stipulates that a notice is to be issued before four years from the end of the relevant assessment year. In certain cases beyond four years and within six years. Therefore, two circumstances are elaborated in the provisions. In certain cases, notices can be issued within four years and in certain other cases, notices can be issued beyond four years but within six years. 21. The period of four ....

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....idays or due to public holidays etc. Various circumstances and situations are possible, which would cause delay in serving the consignment to the addressee. Various circumstances for causing delay in service of the consignment cannot be taken into consideration for the purpose of determining the period of limitation as contemplated under Section 149 of the Income Tax Act. 25. The assessees are taking advantage on account of certain unavoidable circumstances and happenings due to certain omissions on the part of the Postal Department etc. It is possible that commissions and omissions are happening in the Postal Department also. Whether an assessee can take undue advantage from such commissions and omissions of the Postal Department ....

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.... 28. 'Issue of Notice' by the Competent Authority is contemplated under Section 149 of the Income Tax Act. However, 'Service of Notice' to the assessee has not been contemplated under the said provision. Thus, the 'time limit' prescribed for 'issue of notice' under Section 148 of the Income Tax Act, would not fall under the definition of 'service' under Section 27 of the General Clauses Act, 1897. Thus, Section 27 of the General Clauses Act, 1897 may not have relevance with reference to Sections 147, 148 and 149 of the Income Tax Act, 1961. 29. 'Issue of Notice' and 'Service of Notice' to the assessee cannot be compared at all. What is contemplated under Section 1....