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TMI Blog2018 (6) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... sued notice u/s 148 of the Act on 31.03.2015 calling for fresh return and proposing to reopen the assessment on the ground of escapement of income. According to the assessee company, it received the notice u/s 148 issued by the Assessing Officer dated 31.03.2015 only on 08.04.2015. Pursuant to the notice u/s 148 issued by the Assessing Officer dated 31.03.2015, the assessee replied to the Assessing Officer by letter dated 29.04.2015 to treat the return of income originally filed by the assessee on 27.09.2008 vide Acknowledgement No.40367011270908 u/s 139(1) of the Act for Assessment Year 2008-09. Further, in that letter, the assessee brought to notice of the Assessing Officer that the Assessing Officer's notice u/s 148 of the Act is barred by limitation, since the notice has not been issued before 31.03.2015. For saying so, the assessee brought to notice of the Assessing Officer that as per the tracking record of Indian Post (which was annexed with the letter to the Assessing Officer) that the notice bearing no.RW 636262795IN was bagged by Kolkata RMS(CRC) only on 05.04.2015 in the postal bag which was meant for CRC Delhi. I was brought to the notice of Assessing Officer that the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st bearing No. RW6362627951N which evidence that the item was bagged by Kolkata RMS(CRC) on 05.04.15 in favour of CRC Delhi and then it was dispatched to the appellant in Delhi on 06.04.15. I find that the appellant has objected to this before the Assessing Officer also, but the Assessing Officer has summarily rejected the contentions of the appellant without any evidence to controvert the findings of the appellant. The AO has not brought any material on record to prove that the notice u/s 148 was issued within 31.03.2015. In the given facts of the case it is apparent that notice u/s 148 could be said to have been dispatched/left the control of the Assessing Officer only when it was handed over to the postal authorities - which was on 05.04.15. It is an accepted legal position that the date of issue of any notice can be taken to be that date on which it leaves the control of the issuing authority. In this case, the only incontrovertible date available on record is the date on which the postal authorities received the said notice. This date is available with the postal authorities themselves and is found to 5.4.15. Therefore, as per the settled position of law, the date of issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atch register or any relevant material to suggest that Assessing Officer after signing the notice on 31.03.2015, had handed over the same to Postal Authorities on 31.03.2015 itself, so as to counter the evidence furnished before us by the assessee. The ld. AR drew our attention to the Hon'ble Gujarat High Court decision on a similar issue wherein the Hon'ble Gujarat High Court decided in the case of Kanubhai M. Patel (HUF) v. Hiren Bhatt or His Successors to Office and Others [2011] 334 ITR 25(Guj) wherein the Revenue's case was that Assessing Officer had issued the notice on 31.03.2010 (that is the last date for issue of notice). However, the Hon'ble High Court noted that the notice was sent to the Speed Post Office only on 07.04.2010. So, the Hon'ble High court held that the issue date of notice by Assessing Officer has to be taken as 07.04.2010 and not 31.03.2010 as written in the notice by the Assessing Officer. wherein it was held as under: 12. Section 149 of the Act insofar as the same is relevant for the purpose of the present petition reads thus: "149. Time limit for notice.(1) No notice under Section 148 shall be issued for the relevant assessment year,- [(a) if fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m is ordinarily construed as importing delivery to the proper person, or to the proper officer for service etc." [15.1] In P. Ramanathan Aiyer's Law Lexicon the word "issue" has been defined as follows: "Issue. As a noun, the act of sending or causing to go forth; a moving out of any enclosed place; egress; the act of passing out; exit; egress or passage out (Worcester Dict.); the ultimate result or end. As a verb, "To issue" means to send out, to send out officially; to send forth; to put forth; to deliver, for use, or unauthoritatively: to put into circulation; to emit; to go out (Burrill); to go forth as a authoritative or binding, to proceed or arise from; to proceed as from a source (Century Dict.) Issue of Process. Going out of the hands of the clerk, expressed or implied, to be delivered to the Sheriff for service. A writ or notice is issued when it is put in proper form and placed in an officer's hands for service, at the time it becomes a perfected process. "Any process may be considered "issued" if made out and placed in the hands of a person authorized to serve it, and with a bona fide intent to have it served. "In this regard, the record produced befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon in support of Revenue's contention. So, we note that even if the notice of the Assessing Officer has been dated 31.03.2015, since the same reached to the Postal Authorities only 05.04.2015, the date of issue can be taken as 05.04.2015 and not 31.03.2015 as contended by the Revenue. As per provision of Section 149 of the Act the time limit for notice reads as follows: "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); (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 for that year. Explanation.- In determining income chargeable to tax which has escaped assessment for the purposes of this sub-section, the provisions of Explanation 2 of section 147 shall apply as they apply for the purposes of that section. (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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