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TMI Blog1975 (4) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1959-60, is legal and valid ? In R.C. No. 54/1973, the question referred is : "Whether, on the facts and in the circumstances of the case, the assessment made on Smt. Rukmini Bai, under section 143(3) read with section 147(a) of the Income-tax Act, 1961, for the assessment year 1959-60, was illegal by reason of the fact that the notice under section 147 although issued prior to 31st March, 1964, was served after the 31st March, 1964 ?" In R.C. No. 53/1973, the facts are as follows : The notice under section 148 of the Income-tax Act, 1961 (hereinafter called "the Act"), was put up to the Income-tax Officer on March 17, 1964, and it was signed by him on March 18, 1964. In the copy of the order sheet filed by the departmenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this contention, it is necessary to notice the provisions of sections 147, 148, 149 and 151 of the Act. These provisions are similar to the provisions of section 34 of the old Act, except that the provisions of section 34 have been split up into various sections in the new Act. Section 149 replaces the proviso to section 34 of the old Act. Construing the provisions of section 34 of the old Act, it was consistently held that the words "issued" and "served" were interchangeable, that not only the notice should be issued within the period prescribed but it should be served within the same period for assuming jurisdiction under section 34 for reopening the assessment or taking any other proceedings under the said section. Under section 148, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said period. In Banarsi Debi v. Income-tax Officer, their Lordships of the Supreme Court held as follows : The clear intention of the legislature in enacting section 4 of the Indian Income-tax (Amendment) Act, 1959, is to save the validity of a notice issued under section 34(1)(a) of the Indian Income-tax Act, 1922, as well as the assessment from an attack on the ground that the notice was given beyond the prescribed period. That intention is effectuated by giving to the expression 'issued' the wider of its accepted meanings. The expression 'issued' takes in the entire process of sending the notice as well as the service thereof. Therefore, a notice under section 34(1)(a) issued within, but served beyond, the prescribed time is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice of notice' in section 149 of the new Act." With great respect, we are in entire agreement with the aforesaid view of the learned judges. Sri Rama Rao relies upon the ruling of the Gujarat High Court in Madanlal Mathurdas v. Chunilal, Income-tax Officer . But Bhagwati J. (as he then was) held in Induprasad Devshankar Bhatt v. J . P.Jani, Income-tax Officer that the view taken in Madanlal Mathurdas v. Chunilal, Income-tax Officer was no longer good law, and that its authority must be deemed to have been impliedly overruled having regard to the subsequent decision of the Supreme Court in Banarsi Debi v. Income-tax Officer. In the instant case, it is admitted that though notices were issued within four years, they were not served ..... X X X X Extracts X X X X X X X X Extracts X X X X
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