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TMI Blog2021 (5) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ice under Section 148 of the Act had not been served on the petitioners before the last date as per the provisions of the Act. In fact, notice had franked in the concerned Post Office only after the last date and therefore, the very issuance of notice is bad in law. 4. To substantiate the said contentions, the learned counsel for the petitioners in WP Nos.13425, 13431 and 13432 of 2018 relied on Section 27 of the General Clauses Act, 1897, wherein the meaning of 'Service by Post' is defined and the same reads as under:- 27. Meaning of service by post.-Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." 5. Referring the abovesaid Section 27 of the General Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fact that the notices are not even dispatched on the last date i.e., on 31.03.2018, the impugned notices are liable to be set aside. 12. The learned Senior Standing Counsel appearing on behalf of the respondents in WP Nos.13425, 13431 and 13432 of 2018, disputed the said contentions of the learned counsel appearing on behalf of the petitioners in WP Nos.13425, 13431 and 13432 of 2018, by holding that the notices were dispatched on the last date i.e., on 31.03.2018 itself. The typed set of papers filed by the respondents, which contains the dispatch slip and relevant pages of the Dispatch Register. 13. With respect to the notices sent to the petitioners in WP Nos.13425, 13431 and 13432 of 2018 would reveal that the impugned notices were dispatched on 31.03.2018 itself and the processes undertook by the Post Office were not relevant as far as the dispatch from the Office of the respondents are concerned. 14. In view of the fact that the Dispatch Register maintained by the Income Tax Department reveals that the impugned notices are dispatched properly by making entries in the Dispatch Register on the last date i.e., on 31.03.2018 and the consignments were handed over to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment. 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 section 151. (3) If the person on whom a notice under section 148 is to be served is a person treated as the agent of a non-resident under section 163 and the assessment, reassessment or recomputation to be made in pursuance of the notice is to be made on him as the agent of such non-resident, the notice shall not be issued after the expiry of a period of six years from the end 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 or Process Servers. The answer is 'No'. If such commissions and omissions of another Department is taken into consideration for the purpose of quashing the entire proceedings under the Income Tax Act, equally it is possible for some miscreants to create such circumstances, so as to escape from the clutches of law. All these mitigating factors are to be considered by the Courts. Thus, a practical and a pragmatic approach with reference to the legislative intention is to be taken into consideration for the purpose of deciding the point of limitation. 26. Thus if the revenue is able to establish that an administrative decision is taken under Section 147 of the Income Tax Act and a notice under Section 148 is signed and issued by the Authorities Competent before the last date, then it is to be construed that the notice has been issued in compliance with the provisions of Section 149 of the Income Tax Act. Make it more clear that issue of notice is the requirement contemplated under the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide opportunities and assign reasons by following the procedures contemplated as well as the principles settled. 31. With reference to the point of limitation, it is to be construed that the impugned notices under Section 148 of the Act, were signed by the Competent Authorities on 31.03.2018 and as per the typed set of papers filed by the respondents, the notices were dispatched on the same date i.e., on 31.03.2018, which would be sufficient to satisfy the requirements under Section 149 of the Act and thus, the petitioners in WP Nos.13425, 13431 and 13432 of 2018 are at liberty to defend the case as contemplated under the provisions of the Act. 32. Accordingly, WP Nos.13425, 13431 and 13432 of 2018 stand fail and the same are dismissed. However, there shall be no order as to costs. 33. As far as WP No.11399 of 2018 is concerned, the learned counsel for the petitioner made a submission that the notice has not been served at all. However, the impugned notice, which is enclosed in WP No.11399 of 2018 reveals that the impugned notice issued under Section 148 of the Act has been signed by the Authority on 31.03.2018. However, the petitioner says that the said notice has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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