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TMI Blog2016 (6) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... the approval granted by the Principal Commissioner of the Income tax also on 30.3.2015. In fact, the suggestion placed by Assessing Officer was first screened by the Joint Commissioner of Income-tax which was then placed before the Principal Commissioner who recorded as under : “After perusal of the reasons given by the Assessing Officer in the annexure, I am satisfied that that this is a fit case for issue of notice in lieu of section 148” This was written by the Principal Commissioner Shri Sandeep Kapoor in his own handwriting below which he signed putting the date of 30.3.2015. Such materials on record would therefore, destroy the petitioners' theory that reasons were recorded later but notice was issued prior in point of time. On this count also, petitions must fail. - Decided against assessee - SPECIAL CIVIL APPLICATION NO. 2548 of 2016 With SPECIAL CIVIL APPLICATION NO. 2549 of 2016 With SPECIAL CIVIL APPLICATION NO. 2550 of 2016 - - - Dated:- 13-6-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MR RK PATEL, ADVOCATE FOR THE RESPONDENT : MR DEVANG VYAS, ADVOCATE, MR NIKUNT K RAVAL, ADVOCATE, MRS MAUNA M BHATT, ADVOCATE ORAL ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice was delivered to the postal department on 31.3.2015 is a false theory created only in order to overcome the question of proceedings being hit by limitation. 5. Regarding the second contention, counsel submitted that there is nothing on record to suggest that the Assessing Officer had recorded reasons before issuance of notice. The petitioners' specific averments in this respect in the petition have met with evasive reply. This coupled with the fact that the reasons are undated would lead to an inference that the same were recorded after issuance of notice contrary to what is suggested by the department. 6. On the other hand, learned counsel Shri Manish Bhatt for the department took us through the materials on record produced by the department to contend that the notice was in fact, handed over to the postal authority for delivery on 31.3.2015 itself. It was on account of overload in the postal department that the same was booked on 1.4.2015. The department is availing the postal department's book now pay later scheme. The question of affixing sufficient stamp on such post would therefore, not arise. In any case, this is a highly disputed question of fact, canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the period of six years from the end of the relevant assessment year, are clearly barred by limitation and as such, cannot be sustained. 9. Thus the expression to issue used in the context of notice referred to in section 149 of the Act, it was interpreted that the date of issue of notice would be the date on which the the same was handed over for service to the proper officer i.e. in the present case the postal department. Since the income-tax department is covered by book now pay later scheme, the further observation of requirement of properly stamping envelope with adequate postal stamp, would not be germane. 10. In this context, the crucial question would be, was the envelope containing the notice for reopening addressed to the petitioner, handed over to the postal department for delivery on 31.3.2015 as averred by the petitioner or as strongly contended by the petitioner, this happened only on 1.4.2015? In this context, the petitioner points out that the postal department had booked the post only on 1.4.2015. The certificate issued by the Head Sorting Assistant, Shri C.I. Limbola on 15.5.2015 was later on retracted. Said Shri Limbola was not even on duty on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2015, then how the initial of the said person puts on 31.03.2015 receiving the daks on 31.03.2015. This arrangement Of pickup man receiving the dak and putting his initial at the end of the noting of the articles is also confirmed by the noting of articles made on 30.03.2015 where the pickup man has put his initial receiving the articles. The said initial is matched with the initial made on 31.03.2015. Further, the service of the impugned notice to the postal department through the pickup man on 31.3.2015 is also confirmed that the same has been delivered along with other 23 articles and the same is in continuation of further speed post articles bearing Sr.No.25 to 39 on the same date which were booked directly by the staff of this office and proof of the same has been affixed on the outward register itself on the date of 31.03.2015. Here, it is pertinent to mention that the Sr.No. of the envelope containing the impugned notice is No.3 and thereafter, there were other speed post articles from 4 to 24 handed over to the pickup man and other speed post articles from 25 to 39 booked through the staff of this office. Thus, if there was any malafide intention, then, there would not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Postal Department comes daily in the evening around 4 O clock to collect dak/ speed post on daily basis since many years. The acknowledgment slips of these daks are handed over on the next working day or the subsequent working days by the person of the Postal Department. This practice is being followed since last many years. 3. On 31.03.2015, dak bearing No. l to 24 as per outward Register were handed over to Shri N.A. Parmar, the pickup man/person authorized by the Postal Department who regularly comes to Aayakar Bhavan, Ahmedabad to collect Tapal which is the usual practice followed by the offices located in Aayakar Bhavan. 4 The receipts of these 24 dak handed over to the pickup man has been duly acknowledged by him by putting his signature/initial on the outward register on 31st March, 20l5 itself. This practice of collecting daks and by putting signature in outward register (copy enclosed of 31st March, 2015) has been followed by the postal pickup man since last many years. 12. The documents also include a letter from the Assistant Postmaster General to the Chief Postmaster General in which he had conveyed as under : With reference to above, visited BN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd if so advised. In this context, we may refer to decision of Commissioner of Income-tax and others v. Chhabil Dass Agarwal reported in (2013) 357 ITR 357(SC), wherein it was held as under : 15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that nonentertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of selfimposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226 . (See: State of U.P. vs. Mohammad Nooh , AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa , (1983) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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