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TMI Blog2022 (3) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... n computer resource outside his control i.e. the control of the originator then that point of time would be the time of issuance of notice. The words issue or issuance of notice have not been defined under the Act 1961. However, the point of time of issuance of notice may be gathered from the provisions of the Act, 1961, the Rules, 1962 and the Act, 2000, as discussed above. Similar would be the position if the meaning of the word issue may be gathered in common parlance or as per dictionary meaning. Considering the provisions of Section 282 and 282 A of the Act, 1961 and the provisions of Section 13 of the Act, 2000 and meaning of the word issue we find that firstly notice shall be signed by the assessing authority and then it has to be issued either in paper form or be communicated in electronic form by delivering or transmitting the copy thereof to the person therein named by modes provided in section 282 which includes transmitting in the form of electronic record. Section 13(1) of the Act, 2000 provides that unless otherwise agreed, the dispatch of an electronic record occurs when it enters into computer resources outside the control of the originator. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection filed by the petitioner was rejected by the Assessing Authority holding that since the notice was digitally signed on 31.03.2021, therefore, it shall be deemed to have been issued within time i.e. on 31.03.2021. 5. Aggrieved, the petitioner has filed the present writ petition, praying for the following reliefs:- (a) Issue a writ, order or direction in the nature of certiorari quashing the notice under Section 148 of Income Tax Act, Dt.31.03.2021; and the connected proceedings for reassessment of Income for A.Y. 2013-14. (b) Issue a writ in the nature of mandamus or an order prohibiting the operation of the proceedings initiated by the respondent number 2 . 6. Yesterday, this writ petition was hard at length and following questions were framed for determination :- (i) Whether digitally signing notice would automatically amount to issuance of notice ? (ii) Whether digitally signing a notice and issuing it are two different acts ? (iii) Whether issuance of notice shall take place on the date and time when it is dispatched either electronically or through other mode ? (iv) Whether merely generating notice from the Departmental Portal on 31. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 ITR 163. 13.Both the learned counsels for the parties have jointly stated that the limitation for issuing reassessment notice under Section 148 of the Act 1961 for the Assessment Year 2013-14 would have expired on 31.3.2020 but the limitation was extended by the Taxation and other laws amendment Act 2020 whereby the limitation stood extended upto 31.3.2021. Thus, learned counsels for both the parties are agreed that the limitation for issuance of notice under Section 148 of the Act, 1961 for the Assessment Year 2013 -14 was available to the Assessing Authority upto 31.03.2021. Discussion and Findings 14. We have carefully considered the submissions of learned counsel for the parties and perused the record of the writ petition. 15. Before we proceed to examine the rival submissions, it would be appropriate to reproduce relevant provisions, as under :- (A) Income Tax Act, 1961 Section 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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. (3) For the purposes of this section, a designated income-tax authority shall mean any income-tax authority authorised by the Board to issue, serve or give such notice or other document after authentication in the manner as provided in sub-section (2).] (B) Income Tax Rules 1962 Rule 127 A 127A. Authentication of notices and other documents- (1) Every notice or other document communicated in electronic form by an income-tax authority under the Act shall be deemed to be authenticated,- (a) in case of electronic mail or electronic mail message (hereinafter referred to as the e-mail), if the name and office of such income-tax authority- (i) is printed on the e-mail body, if the notice or other document is in the email body itself; or (ii) 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; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enters a computer resource outside the control of the originator. (2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely:- (a) if the addressee has designated a computer resource for the purpose of receiving electronic records,- (i) receipt occurs at the time when the electronic record enters the designated computer resource; or (ii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee; (b) if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee. (3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be despatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business. (4) The provisions of sub-section (2) shall apply notwithstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to be issued in paper form or communicated in electronic form by that authority in accordance with procedure prescribed. 19. The communication in electronic form has been prescribed in Rule 127 A of the Rules 1962 which provides a procedure for issuance of every notice or other document and the e-mail in electronic form/electronic mail which has to be issued from the designated e-mail address of such income tax authority. 20. Thus, after digitally signing the notice the income tax authority has to issue it to the assessee either in paper form or through electronic mail. Sub-Section (1) of Section 13 of the Act 2000 provides that dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator. The aforesaid sub Section (1) of Section 13 indicates the point of time of issuance of notice. Therefore, after a notice is digitally signed and when it is entered by the income tax authority in computer resource outside his control i.e. the control of the originator then that point of time would be the time of issuance of notice. 21. The words issue or issuance of notice have not been defined under the Act 1961. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from court. To put into circulation; as, the treasury issues notes. To send out, to send out officially; to deliver, for use, or authoritatively; to go forth as authoritative or binding. When used with reference to writs, process, and the like, the term 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court held that merely signing of notice on a particular date cannot be equated with the date of issuance of the notice as contemplated u/s 149 of the Act. The notice therein was signed on the last date of limitation, i.e. 31.03.2010 and was actually handed over to the post office for the purposes of effecting service upon the assessee on 07.04.2010. The same is the situation in the case we are dealing with inasmuch as the notice was signed on 31.03.2016 and was handed over the the postal authorities for effecting service upon the petitioner on 01.04.2016 as per the track report of the India Post. There is no evidence otherwise on record to establish that the notice was handed over to the post office for effecting service upon the petitioner on 31.03.2016. In view of the aforesaid facts and circumstances of the case, we hold that the notice u/s 148 of the Act was issued to the petitioner beyond the last date of limitation prescribed and as such, is barred by time. 27. In the case of Delhi Development Authority Vs. H.C. Khurana (paras 14 15) (1993) 3 SCC Hon ble Supreme Court has explained the meaning of the word issue and held/observed as under :- 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a service matter and reiterated its earlier judgment in the case of H.C. Khurana (supra) observing as under :- 19. Be it noted, in the said case, the decision rendered in Union of India and others v. K.V. Jankiraman and others [(1991) 4 SCC 109] was explained by stating thus: 13. 'The word issued used in this context in Jankiraman it is urged by learned counsel for the respondent, means service on the employee. We are unable to read Jankiraman in this manner. The context in which the word issued has been used, merely means that the decision to initiate disciplinary proceedings is taken and translated into action by despatch of the charge-sheet leaving no doubt that the decision had been taken. The contrary view would defeat the object by enabling the government servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision.' 29. Thus, considering the provisions of Section 282 and 282 A of the Act, 1961 and the provisions of Section 13 of the Act, 2000 and meaning of the word issue we find that firstly notice shall be signed by the assessing authority and then it has to be issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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