TaxTMI 
TaxTMI 
2022 (8) TMI 586
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....tra vires the Constitution of India, the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 [for brevity, "the TOLA Act, 2020"]) and the Income Tax Act, 1961 [for brevity, "the Act of 1961"]. 2. For convenience, we are referring to the facts of W.P.No.27997 of 2021 filed by Malavika Enterprises. 3. Learned counsel for the petitioner submits that the Explanation to Clause A(a) contained in the impugned notifications indirectly extends the operation of the old provisions of the Act of 1961 beyond 31.3.2021 under the guise of a clarification by a delegated legislation and, therefore, has to be declared as unconstitutional. He further submits that when the time limit for issuance of notice under Section 148 of the Act of 1961 stood expired between 20.3.2020 and 31.12.2020, by virtue of the Explanation to Clause A(a) the powers under the old provisions are indirectly extended by way of the notifications. 4. It is further submitted that Section 3(1) of the TOLA Act, 2020 permits the Central Government to issue notification for completion of any proceeding, passing of any order, or issuance of any notice under the provisions of the Specified Act. T....
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....pplicable to the case. However, the notice dated 31.3.2021 has been issued under the unamended provision, i.e. the old provision of Section 148 of the Act of 1961, as it stood prior to 1.4.2021 and, therefore, is liable to be set aside. 9. To substantiate his argument, learned counsel for the petitioner relied on a judgment of the Division Bench of the Allahabad High Court in the case of Daujee Abhushan Bhandar Pvt Ltd v. Union of India and others [Judgment dated 10.3.2022 in Writ Tax No.78 of 2022] and submitted that the very same issue has been taken up and decided by the Allahabad High Court and is applicable to this case. The prayer was made accordingly to govern the present writ petitions by the judgment supra. 10. Learned counsel for the petitioners appearing in other writ petitions also argued in the same line. 11. We have considered the submissions made by learned counsel for the petitioners. 12. In this batch of cases, each assessee has preferred two writ petitions - one challenging the Explanation to Clause A(a) and the impugned notifications issued from time to time and the other challenging the notices issued under Section 148 of the Act of 1961 on the groun....
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....ed in the proviso to clause (ii) of sub-section (2) of section 143, but before the expiry of the time limit for making the assessment, reassessment or recomputation as specified in sub-section (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice. Explanation.- For the removal of doubts, it is hereby declared that nothing contained in the first proviso or the second proviso shall apply to any return which has been furnished on or after the 1st day of October, 2005 in response to a notice served under this section. (2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so. 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) or clause (c); (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 to one lakh rupees or more f....
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....nder the Code of Civil Procedure, 1908 (5 of 1908) for the purposes of service of summons; or (c) in the form of any electronic record as provided in Chapter IV of the Information Technology Act, 2000 (21 of 2000); or (d) by any other means of transmission of documents as provided by rules made by the Board in this behalf. (2) The Board may make rules providing for the addresses (including the address for electronic mail or electronic mail message) to which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named. Explanation.-For the purposes of this section, the expressions 'electronic mail' and 'electronic mail message' shall have the meanings as assigned to them in Explanation to section 66A of the Information Technology Act, 2000 (21 of 2000)." "282A. Authentication of notices and other documents.- (1) Where this Act requires a notice or other document to be issued by any income-tax authority, such notice or other document shall be signed and issued in paper form or communicated in electronic form by that authority in accordance with such procedure as may be prescri....
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....t) of subsection (1) of section 2 of the Information Technology Act, 2000 (21 of 2000)."" [emphasis supplied] 15. Section 282(1) of the Act of 1961 provides that service of notice or summon or requisition may be made by delivering or transmitting a copy thereof to the person therein named. However, the amended provision of Section 282A of the Act of 1961 was brought which provides that notice or document shall be signed and issued in paper form or communicated in electronic form in accordance with such procedure as may be prescribed. Sub-section (2) of Section 282A of the Act of 1961 is quite relevant. It provides that every notice or document to be issued, served or given for the purposes of this Act by any income tax authority shall be deemed to be authenticated if the name and office of a designated income tax authority is printed, stamped or otherwise written thereon. 16. Rule 127A of the Rules of 1962, extracted above, provides that every notice or other document communicated in electronic form by an income tax authority under the Act shall be deemed to be authenticated in case of electronic mail or electronic mail message, if the name and office of such income-tax au....
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....y the income tax authority and it is entered by the income tax authority in computer resource outside the control, then that point of time would be the time of issuance of the notice. 20. After recording the aforesaid finding, the Division Bench of the Allahabad High Court further examined the definition of the words "issue" and "issuance of notice" which have not been defined under the Act of 1961. The dictionary meaning of both the words were thereafter taken and after considering different judgments, the Division Bench finally came to the conclusion that mere digitally signing the notice is not issuance of notice. The impugned notice under Section 148 of the Act of 1961 in that case was received on 6.4.2021 and, therefore, it was treated to be time barred. 21. What we find relevant from the judgment in Daujee Abhushan Bhandar Pvt Ltd, supra, is consideration of facts given in paragraph 3 with a conclusion in the last paragraph and for ready reference, both these paragraphs are quoted herein: "3. Subsequently, the Assessing Authority attempted to initiate proceedings under Section 148 of the Act, 1961. For this purpose, a notice under Section 148 of the Act, 1961 f....
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....ay be prescribed". Thus, signing of notice and issuance or communication thereof have been recognised as different acts. 17. Rule 127 A(1) of the Rules 1962 provides that every notice or other document communicated in electronic form by an authority under the Act shall be deemed to be authenticated in case of electronic mail or electronic mail message (e-mail) if the name and office of such income tax authority is printed on the email body, if the notice or other document is in the e mail body itself, or is printed on the attachment to the e-mail, if the notice or other document is in the attachment and the e-mail, is issued from the designated e-mail address of such income tax authority. Thus, the issuance of notice and other document would take place when the email is issued from the designated e-mail address of the concerned income tax authority. 18. Since Section 149 of the Act 1961 requires notice to be issued by Income Tax Authority, therefore, in terms of sub Section (1) of Section 282 A it has to be signed by that authority and to be issued in paper form or communicated in electronic form by that authority in accordance with procedure prescribed. ....