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TMI Blog2023 (3) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Regulation 20 of the CBLR is triggered within time is not dependent on the customs broker receiving the notice - there are no reason to interpret the word issue , as used in regulation 20(1) of CBLR, in any way other than its plain meaning. In the context of issue of summons or notices, the same would be issued when they are prepared and put in the course for communicating to the recipient. In Banarsi Debi [ 1964 (3) TMI 11 - SUPREME COURT ], the date of the notice for re-opening the assessments was within the eight years from the end of the relevant Assessment Year but the same was served beyond the period of eight years. One of the questions that arose for consideration of the court in that case related to the interpretation of Section 4 of the Indian Income Tax (Amendment) Act, 1959 (hereafter the Amending Act ). The object of the said Section was to save the validity of the notices which were issued beyond the prescribed time. Section 4 of the Amending Act used the word issue . The court held that if the narrow meaning is given to the expression issue , the Section would be unworkable because the objective of the Amending Act was to save the validity of the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal impugning the order-in-original dated 04.02.2019, passed by the Commissioner of Customs (Airport General) (hereafter the Commissioner ). In terms of the said order dated 04.02.2019, the Commissioner had revoked the respondent s Customs Broker License (CB License No. R-59/DEL/CUS/2016 hereafter the CB License ); directing forfeiture of the security deposit of ₹5,00,000/-; and imposed a penalty of ₹50,000/- on the respondent. 3. The question that falls for consideration of this Court is whether the learned Tribunal was correct in holding that a show cause notice under Regulation 20 of the Customs Brokers Licensing Regulations, 2013 (hereafter the CBLR ) is required to be received by the customs broker within a period of ninety days of the receipt of the offence report and it is not sufficient that the notice is sent within the said period of ninety days. 4. The aforesaid question arises in the following context. 4.1 The respondent is a customs broker and at the material time was holding the CB License, which was valid up to 01.09.2026. The said license was issued under Regulation 7 of the CBLR. 4.2 It is alleged that certain goods, which were stor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Tribunal accepted the said contention and held that the notice under Regulation 20(1) of the CBLR was required to be received by the customs broker, against whom action under the CBLR is proposed, within a period of ninety days of the offence report. Since, in the present case, the notice was received by the respondent on 28.08.2018, it was beyond the period of ninety days from the receipt of the offence report dated 10.05.2018 that was received by the Commissioner on 18.05.2018. 4.9 In the present case, the show cause notice was prepared on 10.08.2018 and was handed over to the postal authority on 14.08.2018 for being dispatched by speed post . The postal authority had attempted to deliver the show cause notice to the respondent on 16.08.2018, 17.08.2018 and 18.08.2018 at its given address. The article was returned back with the remark of postal authority that Bar Bar jane par band Milta Hai , which freely translated means that the premises were found closed on repeated visits. The show cause notice was served by hand to the respondent on 28.08.2018. Reasons and Conclusion 5. At the outset, it would be relevant to refer to Regulation 20(1) of the CBLR. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable for preparing the inquiry report would vary. It is contended that this could not be the legislative intent. 7. The respondent also relies on the decision of the Supreme Court in Commissioner of Wealth Tax, UP Anr. v. Kundan Lal Behari Lal (1975) 4 SCC 844. In that case, the Supreme Court had referred to its earlier decision in the case of Banarsi Debi v. Income Tax Officer, District IV, Calcutta Ors. (1964) 7 SCR 539., and the decision of the Allahabad High Court in Sri Niwas Ors. v. The Income-Tax Officer A Ward, Sitapur (1956) 30 ITR 381 and had accepted the proposition that the expression issued and served are used as inter-changeable terms in the legislative practice of our country. Accordingly, the Supreme Court held that the word issued occurring in Section 18(2A) of the Wealth Tax Act, 1957 would mean served . 8. Ms. Manish, learned counsel appearing for the respondent, had also referred to the decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Dharma Properties Private Limited (2018) 11 SCC 230 as well as the decision of this Court in Purushottam Jajodia v. Directorate of Revenue Intelligence, Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Issue , v. To send forth; to emit; to promulgate; as, an officer issues orders, process issues from a 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. 14. The plain reading of the word issue is to set forth or to emit; it is not receipt or service. As stated above, the context in which the word issue was used in Regulation 20(1) of the CBLR, the word issue cannot be interpreted to mean serve or receipt . 15. In Webster v. Sharpe 116 N.C. 466, 21 S.E. 912 the Supreme Court of North Carolina had examined the meaning of the word issue in the context of issuance of summons under Sections 199 and 161 of The Code of North Carolina (enacted March 2, 1883) and observed as under:- An action is commenced by issuing a summons. Code, sec. 199. And an action is commenced when a summons is issued against a defendant. Code, sec. 161. This involves the question as to what is meant by the word issue, and we are of the opinion that it means going out of the hands of the clerk, expressed or implied, to be delivered to the sheriff for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caped assessment or was under-assessed. It is important to note that the word used in Sub-section 34(1)(b) of the Income Tax Act, 1922 was serve and not issued . 19. In Banarsi Debi , the date of the notice for re-opening the assessments was within the eight years from the end of the relevant Assessment Year but the same was served beyond the period of eight years. One of the questions that arose for consideration of the court in that case related to the interpretation of Section 4 of the Indian Income Tax (Amendment) Act, 1959 (hereafter the Amending Act ). The object of the said Section was to save the validity of the notices which were issued beyond the prescribed time. Section 4 of the Amending Act used the word issue . The court held that if the narrow meaning is given to the expression issue , the Section would be unworkable because the objective of the Amending Act was to save the validity of the notices issued under Section 34(1) of the Income Tax Act, 1922, which were beyond the period of eight years. It is in that context that the court held that the word issue under Section 4 of the Amending Act was used interchangeably as served , as the object was to sav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In R.K. Upadhyaya v. Shanabhai P. Patel (1987) 3 SCC 96, the Supreme Court allowed an appeal from the order of the High Court quashing the notice issued under Section 147 of the Income Tax Act, 1961 on the ground that it was barred by limitation. The High Court had relied on the decision in the case of Banarsi Debi and held that the notice under Section 149(1) of the Income Tax Act, 1961 was required to be served within the prescribed period of limitation. It is material to note that in this case, the notice was sent by registered post on 31.03.1970 and was received by the assessee on 03.04.1970. Section 149(1) of the Income Tax Act, 1961 stipulated that no notice under Section 148 of the Income Tax Act, 1961 would be issued in cases falling under Section 147(b) of the Income Tax Act, 1961 at any time subsequent to the expiry of four years after the expiry of the relevant Assessment Year. In this case, the assessment was sought to be reopened under Section 147(b) of the of the Income Tax Act, 1961 and the period of four years expired on 31.03.1970. As stated above, the High Court was of the view that the word issued as used under Section 149(1) of the Income Tax Act, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin limitations, the appeal is allowed and the order of the High Court is vacated. The Income Tax Officer shall now proceed to complete the assessment after complying with the requirements of law. Since there has been no appearance on behalf of the respondents, we make no orders for costs. 21. In the present case, there is no ambiguity in the language of Regulation 20(1) of the CBLR. It requires that the Commissioner issues a notice within the period of ninety days from the receipt of the offence report. There is, thus, no reason to construe the expression issue any different from its plain meaning. The decision of the Supreme Court in R.K. Upadhyaya8 also recognizes that the plain meaning of the expression issuance of notice would be to dispatch the same. 22. It is also relevant to refer to the decision of the Coordinate Bench of this Court in Mayawati v. CIT, Delhi (Central-I) Ors. 2009 SCC OnLine Del 336 . In that case, this Court had observed as under:- 6. In stark contrast, Section 149 of the IT Act speaks only of the issuance of a notice under the preceding Section within a prescribed period. Section 149 of the IT Act does not mandate that such a notic ..... 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