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TMI Blog2017 (1) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... he reason for re-opening the assessment was not shown to be the failure on the part of the assessee in disclosing the returns with full and true material facts. Such being the case, no care has been taken to issue the notice within four years from the end of the assessment. Though the wordings used in the section concerned is issue of notice, that does not mean affixing the signature itself will amount to issue of notice, but, the said notice has to be set in motion to get the meaning of the term 'issue of notice' and as far as the case in hand is concerned, since the notice has been served on the petitioner by hand delivery only in February 2005, in the absence of contention to the contrary, the stand of the assessee has to be accepted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 956, having its registered office at 19, Bishop Garden, Raja Annamalaipuram, Chennai and running a hospital for diagnosis, mitigation and treatment of ailments and diseases in different parts of the country. In the course of assessment for the assessment year 1997-98, they claimed a sum of ₹ 1,25,54,244/- as revenue expenditure under section 37 of the Act being software procured for MRI and Cardio Vascular System Cathlab machines. They filed Returns for the said year. A Scrutiny assessment was passed passed basing on the Returns filed by the writ petitioner. By order dated 31.3.2000, accepting the Returns filed by the writ petitioner, orders have been passed showing balance tax payable as 'nil'. However, subsequent to the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring for the Department/ appellant and the learned Senior Counsel appearing for the respondent, on the point of show cause notice is concerned. 7. As per section 148 of the Act, the despatch ought to have taken place on 31.3.2004,. Then necessarily what is to be considered with reference to the show cause notice is date of despatch for the purpose of reckoning the period of limitation in the service of notice. Further, it appears that even with regard to extending of the benefit of section 27 of the General Clauses Act, with regard to deemed service of notice, on reading clause 27 of the General Clause Act, the learned Single Judge proceeded on the premises that notice shown to have been served only on 10.2.2015 and not on 31.3.2004. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding the reasons for his belief that income escaped assessment, it cannot be presumed in law that there is also a failure on the part of the assessee to file the returns referred to in the proviso or a failure to fully and truly disclose the material facts. Unless the said condition is satisfied, the assessing officer does not acquire the jurisdiction to initiate proceedings under section 148 of the Act after expiry of four years from the end of assessment year. In case where it is beyond four years from the end of assessment year, the assessing officer must necessarily record not only the reasons to believe that the income has escaped assessment, but, also it is on account of failure on the part of the assessee to disclose the material fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of six years period and it has been accepted that the same has been served on the writ petitioner on 10.2.2005, however, a stand has been taken by the Department that the notice must have been sent by registered post but, since the proof for the same has not been filed before the court, the court cannot accept the stand of the learned counsel for the Department. Further, it has been observed by the learned Single Judge that though the wordings used in the section concerned is issue of notice, that does not mean affixing the signature itself will amount to issue of notice, but, the said notice has to be set in motion to get the meaning of the term 'issue of notice' and as far as the case in hand is concerned, since the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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