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TMI Blog2022 (6) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... artment to show that the notice of the respondent dated 31.03.2018 under section 148 is within the limitation period, but the same only disclosed that the notice dated 31.03.2018 was returned on 06.04.2018. The decision in Aban Offshore Limited case ( 2016 (11) TMI 542 - MADRAS HIGH COURT] relied on the side of the respondent, is of no assistance, wherein, the postal cover showed that the franking was made on 01.04.2015, but the business post arrangement between the Income Tax Department and the Department of Posts disclosed that the cover was despatched on 31.03.2015, i.e., within the period of limitation. Whereas, in this case, there is no document made available to prove that the notice under section 148 dated 31.03.2018 was sent for despatch to the appellant, within the end of the relevant assessment year i.e., 31.03.2018. Thus, it is crystal clear that the notice under section 148 for reopening the assessment was not sent to the appellant, within the time stipulated under section 149 of the Act and hence, the same vitiates the reassessment proceedings initiated under section 147 X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, the respondent is empowered to assess, re-assess and re-compute the assessment, when there is reason to believe that certain income of the appellant has escaped from the assessment and that, the initiation of re-assessment proceedings commenced from the moment the notice dated 31.03.2018 was signed by the respondent. Therefore, the notice dated 31.03.2018 issued under section 148, received by the appellant through her mail on 18.04.2018 is well within the period of limitation. It was also stated that on receipt of the notice for re-assessment, the appellant ought to have first filed her return of income and thereafter, she can seek remedies available under law. Without doing so, the appellant rushed to this court by filing writ petition under Article 226 of the Constitution of India. 4.By order dated 26.04.2021, the learned Judge, on appreciation of the rival contentions, dismissed the writ petition by observing that "it is sufficient if the notice under section 147 of the Act has been signed and issued by the authority and therefore, the delay in receiving the documents would not provide any ground for the appellant to quash the entire proceedings". The said order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the appellant beyond the period of limitation i.e., on 18.04.2018 and therefore, the entire re-assessment proceedings are vitiated. Having regard to all these factors, the learned Judge rightly concluded that the period of limitation has to be reckoned from the date of signing of the notice on 31.03.2018 itself, which is in accordance with the provisions contained under Sections 147 to 149 of the Act; when the reassessment was launched against the appellant by issuing a notice duly signed on 31.03.2018, the appellant has to subject herself to the same; and accordingly, dismissed the writ petition. Ultimately, the learned counsel referred to the decision of this court in Abab Offshore Ltd v. Deputy Commissioner of Income-tax [(2017) 78 taxmann.com 37 (Madras)] and submitted that the order of the learned Judge requires no interference at the hands of this court. 7.Heard both sides and perused the materials available on record. 8.In the present case, the respondent reopened the assessment of the appellant for the assessment year 2011-12, through notice dated 31.03.2018 under section 148 of the Act. Admittedly, the limitation period of six years for reopening the assessment, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 148 was signed by the respondent on 31.03.2018 and the same was given to the process server to be served on the appellant on the same day, but it was returned on 06.04.2018 stating that there was no such person in the given address. After ascertaining her address from the last return of income filed by her, the said notice was sent to the appellant's registered mail ID, which was also served on 18.04.2018. Thus, according to the respondent, the reassessment proceedings commenced from the moment, when the notice was signed by the respondent on 31.03.2018 and hence, the same is well within the limitation. 11.In this context, this court would apply the doctrine of 'substantial compliance' to the facts and circumstances of the case. In the decision of the Hon'ble Supreme Court in Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal and others [(2011) 1 SCC 236], it was held as follows: "Doctrine of substantial compliance and "intended use" 32. The doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably be expected of it, but failed or faulted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance" or "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words a mere attempt at compliance may not be sufficient, but actual compliance with those factors which are considered as essential." 12.In Kanubhai M. Patel v. Hiren Bhatt and others [(2011) 334 ITR 25 (Guj)], it was held by the Gujarat High Court that "date of issuance of notice under Section 148 Income Tax Act has to be reckoned not from the date when it was issued, but on the date when it was actually delivered on the assessee". The relevant paragraphs of the same are profitably extracted below: "13. On a plain reading of Section 149, it is apparent that under the said provision, the maximum time limit for issuance of notice under Section 148 is six years from the end of the relevant assessment year. In the present case, the relevant assessment year in each of the petitions is 2003-2004; the impugned notices are dated 31.03.2010; and the said notices were sent for booking to the Speed Post Centre, Ahmedabad, on 07.04.2010. On behalf of the petitioners, it has been contended that the notices w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 16. Thus, the expression to issue in the context of issuance of notices, writs and process, has been attributed the meaning, to send out; to place in the hands of the proper officer for service. The expression "shall be issued" as used in section 149 would therefore have to be read in the aforesaid context. In the present case, the impugned notices have been signed on 31.03.2010, whereas the same were sent to the speed post centre for booking only on 07.04.2010. Considering the definition of the word issue, it is apparent that merely signing the notices on 31.03.2010, cannot be equated with issuance of notice as contemplated under Section 149 of the Act. The date of issue would be the date on which the same were handed over for service to the proper officer which in the facts of the present case would be the date on which the said notices were actually handed over to the post office for the purpose of booking for the purpose of effecting service on the petitioners. Till the point of time the envelopes are properly stamped with adequate value of postal stamps, it cannot be stated that the process of issue is complete. In the facts of the present case, the impugned noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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