ITO, Agra V. Shri Lal Chand Agarwal, Agra

ITA 169/AGR/2007

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 50362 (ITAT-AGRA)
• Duration Of Justice: 4 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-10-2011
• Assessment Year: 1998-1999
• Appeal Filed On: 05-04-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: WASEEM ARSHAD
• Assessee Lawyers: NAVIN GARG
• Keywords: Reopening of assessment; Invalid notice; Period of limitation; Validity of assessment; Time period of passing order; Reassessment proceedings
• Section: 147; 148; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.169/AGR/2007 ASSESSMENT YEAR: 1998-99 INCOME TAX OFFICER 4(2), VS. SHRI LAL CHAND AGA RWAL, AGRA. C-17, KAMLA NAGAR, AGRA. (PAN: ADAPA 5984 A). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI NAVIN GARG, ADVOCATE DATE OF HEARING : 11.10.2011 DATE OF PRONOUNCEMENT : 11.10.2011 PER H.S. SIDHU, J.M. : IN THIS CASE THE DIFFERENCE AROSE BETWEEN THE MEMBE RS OF THE DIVISION BENCH HEARING THIS APPEAL. THEREFORE, THE MATTER W AS REFERRED TO THE OPINION OF THE LD. THIRD MEMBER. THE LD. THIRD MEMBER HAS AGREED WITH THE VIEW TAKEN BY THE LD. ACCOUNTANT MEMBER. THEREFORE, IN VIEW OF THE MAJORITY DECISION, THE REVENUES APPEAL IS ALLOWED. 2. IN THE RESULT, APPEAL OF THE REVENUE IS TREATED AS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 11.10.2011) . SD/- SD/- (B.C. MEENA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 11 TH OCTOBER, 2011 PBN/* ITA NO.169/AGR/2007 2 COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CON CERNED/D.R., ITAT, AGRA BENCH, AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE T RIBUNAL, AGRA TRUE COPY ITA NO.169/AGR/2007 3 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA AGRA BENCH, AGRA AGRA BENCH, AGRA AGRA BENCH, AGRA BEFORE SHRI G.E.V BEFORE SHRI G.E.V BEFORE SHRI G.E.V BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT EERABHADRAPPA, VICE PRESIDENT EERABHADRAPPA, VICE PRESIDENT EERABHADRAPPA, VICE PRESIDENT (AS A THIRD MEMBER) (AS A THIRD MEMBER) (AS A THIRD MEMBER) (AS A THIRD MEMBER) ITA NO. ITA NO. ITA NO. ITA NO.169/AGR/2007 169/AGR/2007 169/AGR/2007 169/AGR/2007 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 1998 1998 1998 1998- -- -99 9999 99 INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER- -- -4(2), 4(2), 4(2), 4(2), AGRA. AGRA. AGRA. AGRA. VS. VS. VS. VS. SHRI LAL CHAND AGA SHRI LAL CHAND AGA SHRI LAL CHAND AGA SHRI LAL CHAND AGARWAL, RWAL, RWAL, RWAL, C CC C- -- -17, KAMLA NAGAR, 17, KAMLA NAGAR, 17, KAMLA NAGAR, 17, KAMLA NAGAR, AGRA. AGRA. AGRA. AGRA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HOMI RAJVANSH, CIT-DR. RESPONDENT BY : SHRI NAVIN GARGH, ADVOCATE. ORDER ORDER ORDER ORDER THERE BEING A DIFFERENCE BETWEEN THE MEMBERS WHO O RIGINALLY HEARD THIS APPEAL, THE HONBLE PRESIDENT HAS NOMINA TED ME AS A THIRD MEMBER TO RESOLVE THEIR DIFFERENCE UNDER SECTION 25 5(4) OF THE INCOME- TAX ACT, 1961. 2. THE AGREED POINTS OF DIFFERENCE WERE IN RESPECT OF THE FOLLOWING GROUNDS TAKEN BY THE REVENUE IN THE APPEAL FILED BY IT FOR THE AY 1998- 99 ARISING OUT OF THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) DATED 9.10.2006:- 1. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-II, AGRA HAS ERRED IN LAW AND ON FACTS IN QUASHING THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE IT ACT, 1961. 2. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-II, AGRA HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSING OFFICER DID NOT BASE HIS ASSESSM ENT ORDER ON NOTICE ISSUED UNDER SECTION 148 OF THE IT ACT, 1961 DATED 28.03.2005 IGNORING THE NARRATION MENTIO NED AT PARA 1.3 OF THE ASSESSMENT ORDER. ITA NO.169/AGR/2007 4 3. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-II, AGRA HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACTS OF THE CASE THAT AS PER RECO RD, THE NOTICE WAS ISSUED WELL WITHIN TIME BUT THE SERVICE TO THE ASSESSEE WAS NOT EFFECTED ON ACCOUNT OF HIS ABSENCE . 4. THAT THE DECISION OF LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-II, AGRA BEING ERRONEOUS IN LA W AND ON FACTS DESERVES TO BE QUASHED AND THAT OF THE AO DESERVES TO BE RESTORED. 3. THE FACTS RELEVANT IN THIS REGARD ARE THAT THE A SSESSEE IS AN INDIVIDUAL AND RETURNED A TOTAL INCOME OF `2,46,100 /-. SUBSEQUENTLY, THE ASSESSING OFFICER RECEIVED INFORMATION FROM ADD ITIONAL DIT (INVESTIGATION), AGRA THAT ONE M/S ASHOK GUPTA & CO ., DELHI HAS PROVIDED BOGUS ENTRIES OF SALE PROCEEDS OF SHARES T HROUGH ITS BANK ACCOUNT IN BANK OF INDIA, DELHI. ON THE BASIS OF E NQUIRY CONDUCTED BY ADDITIONAL DIT(INVESTIGATION), AGRA, IT WAS FOUND T HAT THERE WERE NO GENUINE TRANSACTIONS OF SALE AND PURCHASE OF SHARES HAS TAKEN PLACE THROUGH THIS BANK ACCOUNT. THE BENEFICIARIES HAVE TAKEN ENTRIES BY PAYING IN CASH AN AMOUNT EQUIVALENT TO THE DRAFT/CH EQUES AMOUNT AND CERTAIN PREMIUM ON THAT. THE LIST OF SUCH BENEFICI ARIES WAS PROVIDED TO THE AO IN WHICH THE NAME OF THE ASSESSEE FIGURED AT SR.NO.13 OF THE ANNEXURE. ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE HAS TAKEN BOGUS ENTRIES DURING THE YEAR IN QUESTION AND RECEI VED AN AMOUNT OF `5,99,100/- AND `1,79,575/- THROUGH CHEQUES AND DDS ISSUED BY M/S ASHOK GUPTA & CO. AND THE SAME WERE DEPOSITED IN AC COUNT NO.23490 WITH STATE BANK OF INDIA, NUNHAI, AGRA. 4. CONSEQUENTLY, THE AO HAS RECORDED A REASON TO BE LIEVE THAT INCOME TO THE TUNE OF `7,78,675/- (5,99,100 + 1,79, 575) SHOWN AS BOGUS SALE PROCEEDS OF SHARES HAS ESCAPED ASSESSMEN T FOR THE AY 1998-99. NOTICE DATED 28.3.2005 UNDER SECTION 148 OF THE ACT WAS ISSUED AFTER THE RECEIPT OF THE NECESSARY APPROVAL UNDER SECTION 151(2) FROM ADDITIONAL COMMISSIONER OF INCOME TAX, AGRA. THIS NOTICE WAS ITA NO.169/AGR/2007 5 NOT SERVED UPON THE ASSESSEE AS THE SAME GOT RETURN ED UNSERVED WITH THE POSTAL REMARK THAT THE RECIPIENT WAS NOT AVAILA BLE AND HAS GONE TO SOME OTHER PLACE FOR HIS TREATMENT. ANOTHER NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 17.6.2005 WHICH WAS SERVED ON THE ASSESSEE ON 29.6.2005. DURING THE ASSESSMENT PROCEEDINGS, T HE COUNSEL OF THE ASSESSEE SHRI NAVIN GARGH, ADVOCATE ATTENDED ON 19. 9.2005 AND A COPY OF THE REASONS WAS HANDED OVER TO HIM ON HIS W RITTEN REQUEST WHICH WAS MADE ON 6.9.2005. THE ASSESSEE MADE A RE QUEST TO THE AO TO TREAT THE ORIGINAL RETURN FILED ON 31.10.1998 AS THE RETURN FILED IN COMPLIANCE TO THE NOTICE UNDER SECTION 148 OF THE A CT. THE AO THEREAFTER CONTINUED WITH THE ASSESSMENT PROCEEDING S AND COMPLETED THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTI ON 147 OF THE ACT. 5. THE ASSESSMENTS WERE CHALLENGED IN APPEAL BEFORE THE CIT(A). IT WAS CONTENDED THAT PROCEEDINGS INITIATED UNDER SECT ION 148 BY ISSUANCE OF NOTICE DATED 17.6.2005 ARE TIME BARRED AND AB INITIO . ACCORDING TO THE ASSESSEE, THE RELEVANT NOTICE HAD BEEN ISSUED AFTER SIX YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE SUBMISSIONS OF THE ASSESSEE BEFORE THE CIT(A) W ERE AS UNDER:- THAT AS FURTHER MENTIONED IN THE ASSESSMENT ORDER ITSELF (PG-2, PARA 1.4), ANOTHER NOTICE U/S 148 OF THE I. T.ACT WAS ISSUED ON 17.06.2005 WHICH WAS SERVED ON THE ASSESS EE ON 29.06.2005. THAT THE SO CALLED NOTICE U/S 148 ISSUED ON 28.03.2 005 HAS BEEN RETURNED BACK UNSERVED WITH THE POSTAL REMARK AS MENTIONED IN ASSESSMENT ORDER (PG-2). THAT SINCE ANOTHER NOTICE U/S 148 WAS ISSUED ON 17.06.2005 THE SO CALLED NOTICE U/S 148 ISSUED ON 28.03.2005 RETURNED BACK UNSERVED IS NONEST AND THE ASSESSMENT PROCEEDING CANNOT BE SAID TO BE INITIATE D ON IT BASIS AS THIS NOTICE DT. 28.03.2005 WAS NEVER SERVE D. BY VIRTUE OF PROVISIONS OF SEC. 148 THE JURISDICTION T O ASSESS CAN ONLY BE ASSUMED BY SERVICE OF NOTICE, WHICH IS MANDATORY AND NOT A MERE FORMALITY. ITA NO.169/AGR/2007 6 THAT THE ASSESSMENT HAS BEEN COMPLETED ON THE BASIS OF NOTICE U/S 148 ON DT. 17.06.2005 WHICH WAS SERVED O N 29.06.2005. THAT THE PROCEEDING INITIATED BY ISSUE OF NOTICE U/ S 148 DT. 17.06.2005 ARE TIME BARRED AND VOID AB-INITIO. THE TIME LIMIT FOR NOTICE IS PROVIDED IN SECTION 149 WHICH R EADS AS FOLLOWS:- TIME LIMIT FOR NOTICE : SEC. 149 [(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 UND ER CLAUSE (B); (B) IF FOUR YEARS, BUT NOT MORE THAN SIX YEARS, HAV E ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEA R UNLESS THE INCOME CHARGEABLE TO TAX WHICH HAS ESCAP ED ASSESSMENT AMOUNTS TO OR IS LIKELY TO AMOUNT TO ONE LAKH RUPEES OR MORE FOR THAT YEAR. THE RELEVANT NOTICE U/S 148 DT. 17.06.2005 HAS BEEN ISSUED AFTER SIX YEARS HAVE ELAPSED FROM THE END OF THE RE LEVANT ASSESSMENT YEAR. THUS THE NOTICE U/S 148 DT. 17.06 .2005 ISSUED FOR RELEVANT ASSESSMENT YEAR 1998-99 IS BARR ED BY LIMITATION AND IT IS AN INVALID NOTICE. THAT REGARDING LEGALITY/VALIDITY OF SERVICE OF NOTI CE U/S 148 AS NOT SUSTAINABLE, THE ASSESSING OFFICER HAS CONTR ADICTED IT AND THEREBY ACCEPTING THE NON SERVICE OF NOTICE U/S 148 DT. 28.03.2005 MENTIONING IT IS ALSO NOTABLE THAT ON THE DATE 31.03.2005 WHEN THE POSTMAN HAD PUT HIS REPORT AS MENTIONED IN PARA 1.4 ABOVE ON THE ENVELOPE CONTAIN ING NOTICE U/S 148 DATED 28.03.2005, THE ASSESSEE WAS Q UITE AWARE ABOUT THE FACTS OF THE CASE. THEREFORE ASSES SEES OBJECTIONS REGARDING LEGALITY/VALIDITY AND SERVICE OF NOTICE U/S 148 ARE NOT SUSTAINABLE. THAT IN THE ASSESSMENT AT PG-5 THE LD.A.O. HAS REL IED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CA SE OF R.K.UPADHYAY VS. SHANA BHAI P.PATEL 166 ITR 163 FUL LY MERITS IN THIS CASE. THE SOME AND SUBSTANCE OF THE DECISION IS THAT WHERE NOTICE HAS BEEN ISSUED WITH IN ITA NO.169/AGR/2007 7 PERIOD OR LIMITATION UNDER INCOME TAX ACT, 1961 BUT SERVED ON ASSESSEE BEYOND SUCH PERIOD ASSESSMENT IS VALID . THE MERITS OF THIS CASE ARE ENTIRELY DIFFERENT AS A SSESSING OFFICER HAS HIMSELF ISSUED ANOTHER NOTICE U/S 148 D T. 17.06.2005 TREATING AND ACCEPTING THAT THE SO CALLE D NOTICE U/S 148 DT. 28.03.2005 IS NOT SERVED. THAT SINCE T HE NOTICE U/S 148 DT. 28.03.20095 HAS NOT BEEN SERVED AT ALL IN THIS CASE THERE IS NO SUCH ISSUE OF WHERE NOTICE HAS BE EN ISSUED WITHIN PERIOD OR LIMITATION UNDER INCOME TAX ACT, 1961 BUT SERVED ON ASSESSEE BEYOND SUCH PERIOD ASSESSMENT IS VALID AND AS SUCH THIS DECISION IS N OT APPLICABLE. THAT THE NOTICE U/S 148 DT. 17.06.2005 ISSUED AFTER THE PERIOD OF THE LIMITATION RENDERS THE ASSESSMENT PROCEEDINGS AS BARRED BY LIMITATIONS. RELIANCE PLACED : 196 ITR 25 (ALL) CIT VS MOTILAL PADAMPAT SUGAR MILL S P.LTD. THAT THE SECOND NOTICE U/S 148 DT. 17.06.2005 WAS I SSUED AS ANOTHER NOTICE (ASSESSMENT ORDER PG-2) ON THE SAME REASONS RECORDED EARLIER AND WITHOUT DROPPING THE E ARLIER PROCEEDING INITIATED U/S 147 OF THE ACT AS THE FIRS T NOTICE DT. 28.03.2005 WAS NOT SERVED. THUS THE SECOND NOT ICE DT. 17.06.2005 WAS ALSO NOT VALID NOTICE AND THE ASSESS MENT FRAMED IS PURSUANCE OF INVALID NOTICE IS LIABLE TO BE QUARTERED. RELIANCE PLACED : 227 ITR 302 (RAJASTHAN) CIT VS JAIDE JAIN 235 ITR 161 (KERALA) SMT. NILOFAR HAMEED VS. ITO THAT THE OBJECTIONS FILED ON 16.11.2005, 23.01.2006 AND 08.02.2006 HAVE NOT BEEN CONSIDERED AND DISPOSED OF F BY PASSING SPEAKING ORDER. THAT THUS IN ANY VIEW THE ASSESSMENT ORDER PASSED U /S 143/147 OF THE I.T.ACT ON THE BASIS OF THE INVALID NOTICE IS WRONG AND ILLEGAL AND BAD IN LAW AND LIABLE TO BE Q UASHED. 6. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER UNDER SECT ION 250(4) OF THE IT ACT AND THE AO CONTENDED THAT NOTICE UNDER SECTI ON 148 WHICH WAS ITA NO.169/AGR/2007 8 ORIGINALLY ISSUED ON 24.3.2005 AND ON 28.3.2005 WHI CH WERE CARRIED FOR SERVICE BY THE NOTICE SERVER AS WELL AS BY THE POST MAN ON THE PROPER ADDRESS OF THE ASSESSEE AND WERE RETURNED UNSERVED WITH THE REMARK THAT THE ASSESSEE WAS ILL AND OUT FOR A TREATMENT. THE AO PLEADED THAT THE ASSESSEE INTENTIONALLY AND DELIBERATELY AVOIDED THE RECEIPT OF NOTICE UNDER SECTION 148. THE ASSESSING OFFICER, T HEREFORE, CONTENDED THAT THE REASSESSMENT HAS BEEN COMPLETED ON THE BAS IS OF NOTICE ISSUED IN MARCH, 2005 AND NOT BEING COMPLETED ON TH E BASIS OF NOTICE DATED 17.6.2005 AS SUBMITTED BY THE ASSESSEE. THE AO PLEADED THAT SINCE NOTICE UNDER SECTION 148 DATED 24.3.2005/28.3 .2005 WAS ORIGINALLY ISSUED WITHIN THE TIME PRESCRIBED UNDER SECTION 149(1), THEREFORE, THE ASSESSMENTS ARE NOT BARRED BY LIMITA TION. RELIANCE WAS PLACED ON THE DECISION OF HONBLE JURISDICTIONAL HI GH COURT IN THE CASE OF CIT VS. SHITAL PRASAD KHARAG PRASAD (2005) 147 TAXMAN 441 (ALL.). THE CIT(A) WAS OF THE VIEW THAT THE FIRST NOTICE IS SUED BY THE AO DATED 28.3.2005 REMAINED TO BE SERVED. THE ASSESSING OFF ICER, INSTEAD OF MAKING FRESH ATTEMPT FOR THE SERVICE OF THE SAID NO TICE, ISSUED ANOTHER NOTICE ON 17.6.2005 WHICH WAS DULY SERVED ON THE AS SESSEE. ENTIRE ASSESSMENTS WERE CARRIED ON BY ASSUMING JURISDICTIO N ON THE BASIS OF THE SECOND NOTICE. ACCORDING TO HIM, A VALID NOTIC E UNDER SECTION 148 IS A CONDITION PRECEDENT FOR THE VALIDITY OF THE AS SESSMENT TO BE FRAMED UNDER SECTION 147 OF THE ACT. IF NO NOTICE IS ISSUED OR THE NOTICE IS INVALID OR IT IS NOT SERVED ON THE PROPER PERSON IN ACCORDANCE WITH LAW, THE ASSESSMENT WILL BE ILLEGAL AND WITHOU T JURISDICTION. ACCORDING TO HIM, THE AO CANNOT ASSUME THE JURISDIC TION ON THE BASIS OF AN UNSERVED NOTICE. THERE WAS NO EVIDENCE ON RECOR D IN RESPECT OF A SERVICE OF NOTICE ISSUED IN THE MONTH OF MARCH, 200 5 AND NON-SERVICE OF A NOTICE WITHIN THE PERIOD OF LIMITATION, ACCORD ING TO HIM, RENDERS THE ASSESSMENT INVALID. HE OPINED THAT THE SERVICE OF NOTICE ON 17.6.2005 WAS BEYOND THE TIME LIMIT AND, THEREFORE, THE ASSES SMENT IS BAD IN LAW. THE REVENUE WAS AGGRIEVED AND QUESTIONED THE AFORES AID ORDER OF CIT(A) BY TAKING THE GROUNDS OF APPEAL AS MENTIONED SUPRA. ITA NO.169/AGR/2007 9 7. THE LEARNED ACCOUNTANT MEMBER TO WHOM THE CASE W AS ALLOTTED OPINED THAT THERE IS A COMPLETE AND CLEAR DISTINCTI ON BETWEEN TWO LEGAL PROCESSES I.E., THE ISSUANCE OF NOTICE AND SERVICE OF NOTICE, EACH HAVING DISTINCT PURPOSES/FUNCTIONS. WHILE THE ISSU ANCE OF NOTICE ENABLES THE ASSUMPTION OF JURISDICTION TO MAKE AN A SSESSMENT UNDER SECTION 147 I.E. IT CONCERNS THE JURISDICTIONAL ASP ECT. WHEREAS SECTION 148 SETS IN MOTION THE PROCESS OF FRAMING THE ASSES SMENT FOR WHICH A SERVICE OF NOTICE IS A PRE-CONDITION. THE TWO PROC ESSES, ACCORDING TO HIM, ARE INDEPENDENT OF EACH OTHER AND THE DIFFEREN CE BETWEEN THE TWO IS BASIC AND VITAL. ALL HIS DISCUSSIONS ARE BA SED ON THE DECISION OF THE APEX COURT IN THE CASE OF R.K.UPADHYAYA VS. SHA NA BHAI P.PATEL 166 ITR 163 (SC). HE AFTERWARDS ADDRESSED HIMSELF ON THE VALIDITY OF THE THREE NOTICES THAT WERE THERE ON THE FILE VIZ., THE FIRST NOTICE DATED 24.3.2005, SECOND NOTICE DATED 28.3.2005 AND THIRD NOTICE DATED 17.6.2005. 8. AS REGARDS THE FIRST NOTICE ISSUED ON 24.3.2005, THE LEARNED AM OPINED THAT THERE WAS NO VALID NOTICE IN LAW AS THE SAME STOOD ISSUED WITHOUT OBTAINING THE REQUIRED SANCTION FROM THE CO MPETENT AUTHORITY IN TERMS OF THAT PROVISION WHICH, ACCORDING TO HIM, STOOD OBTAINED ONLY ON 28.3.2005. NON-OBTAINING THE SAID SANCTION UNDE R SECTION 151, APART FROM BEING IN VIOLATION OF THE MANDATORY PROV ISIONS, RESULTS IN THE RELEVANT NOTICE RENDERING ITSELF BAD IN LAW. WITH REGARDS TO THE SECOND NOTICE DATED 28.3.2005 WHICH, ACCORDING TO HIM, WAS ISSUED BY THE AO AFTER DUE RECEIPT OF NECESSARY APPROVAL UNDER SECTI ON 151(2) OF THE ACT, ON BEING SATISFIED ON THE REASONS RECORDED BY THE AO UNDER SECTION 148(2) WITHIN THE PRESCRIBED TIME LIMIT UND ER SECTION 149 OF THE ACT I.E. 31.3.2005, IS A VALID NOTICE UNDER SEC TION 148. THE SECOND NOTICE, ACCORDING TO HIM, CONFERS NECESSARY JURISDI CTION TO FRAME THE ASSESSMENT IN THE PRESENT CASE UNDER SECTION 147 OF THE ACT. AS PER THE PROCEDURAL REQUIREMENT, THE AO BEFORE PROCEEDIN G TO MAKE AN ITA NO.169/AGR/2007 10 ASSESSMENT IN TERMS OF SECTION 148(1) OF THE ACT RE QUIRING TO SERVE UPON THE ASSESSEE A NOTICE ISSUED THEREUNDER. ACCO RDING TO HIM, IT IS ONLY THROUGH SERVICE THAT THE ASSESSEE GETS COMMUNI CATED THE FACT OF REOPENING OF ASSESSMENT AND PROPOSED ACTION BY THE DEPARTMENT IN ITS CASE. IN OTHER WORDS, THE SERVICE OF A NOTICE THOU GH EXTREMELY RELEVANT, YET IS A MATTER OF PROCEDURE SO THAT ITS ABSENCE OR A DEFECT THEREIN WOULD NOT INVALIDATE THE ENSUING PROCEEDING S, BUT ONLY MAKE THEM IRREGULAR, I.E. WHERE THERE IS A VALID ASSUMPT ION OF JURISDICTION TO ASSESS. AS REGARDS THE THIRD NOTICE DATED 17.6.200 5, WHICH ACCORDING TO THE LEARNED AM STOOD SERVED ON 29.6.2005, DOES N OT BESTOW ANY SANCTITY IN LAW. THIS, ACCORDING TO HIM, DOES NOT CONSTITUTE ISSUANCE OF A NEW OR ANOTHER NOTICE UNDER SECTION 148; THE AO E VEN OTHERWISE BEING UN-EMPOWERED TO DO SO. IN HIS OPINION, THE L AW DOES NOT CONTEMPLATE MULTIPLE ISSUE OF NOTICES CONFERRING JU RISDICTION UNDER SECTION 148(1) SO THAT THERE COULD BE NO REISSUE OF AN ALREADY VALIDLY ISSUED NOTICE. THE NOTICE DATED 28.3.2005, ACCORDI NG TO HIM, WAS THE ONLY LEGALLY VALID AND, THEREFORE, MAINTAINABLE NOT ICE ISSUED UNDER SECTION 148 IN THE ASSESSEES CASE FOR THE RELEVANT YEAR. 9. FURTHER, HE WENT ON TO OBSERVE THAT THE ISSUE OF NOTICE ON 17.6.2005, IF IT IS REQUIRED TO BE INTERPRETED, IS NON-EST IN LAW AND, AS SUCH, HAS NO BEARING ON THE ISSUE. ACCORDING TO HI M, ON THESE FACTS AS EXISTING IN THE CASE, THE AO HAS CORRECTLY OBSERVED IN HIS REMAND REPORT THAT THE ASSESSMENT STOOD FRAMED ONLY IN PUR SUANCE OF THE NOTICE ISSUED IN MARCH, 2005. THE RIGHT OF JURISDI CTION OF THE AO VALIDLY ASSUMED ON 28.3.2005 COULD NOT GET LOST BY THE OSTE NSIBLE ISSUE OF NEW NOTICE U/S 148 ON 17.6.2005 FOR WHICH HE HAS NO BASIS OR GROUND. IN SUM AND SUBSTANCE, THE LEARNED AM OPINED THAT TH E JURISDICTION TO ASSESS OR RE-ASSESS INCOME IS ONLY ON THE BASIS OF VALID ISSUE OF NOTICE U/S 148. THE CONDITION OF VALID SERVICE IS ONLY FO R THE PURPOSE OF FRAMING THE ASSESSMENT. THE TWO ARE THUS DISTINCT; WHILE ONE ENABLES THE ASSESSING AUTHORITY ASSUMING THE ASSESSMENT, TH E OTHER BARS THE ITA NO.169/AGR/2007 11 ACTUAL FRAMING OF THE ASSESSMENT. ACCORDING TO HIM , THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF STATE OF ESTA TE OF LATE RANGLAL JAJODIA VS. CIT 79 ITR 505 (SC), R.K.UPADHYAYA VS . SHANA BHAI P.PATEL (SUPRA), CIT VS. JAI PRAKASH SINGH 219 ITR 737 (S C), CST VS. SUBASH & CO. (2003) 130 STC 97, 106 (SC) AND ALSO BY THE H ONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SANT BABA MOHAN SINGH VS. CIT 90 ITR 197 (ALL.) OUGHT NOT TO LEAVE ANY ONE IN A NY MANNER OF DOUBT WITH REGARD TO THIS. 10. WITH THE ABOVE REASONING, THE VALIDITY OF THE R EASSESSMENT PROCEEDINGS WAS UPHELD BY ALLOWING THE APPEAL OF TH E REVENUE. 11. THE LEARNED JUDICIAL MEMBER, HOWEVER, HAD NO DI SPUTE AS REGARDS THE FACTS MENTIONED IN THE ORDER OF THE LEARNED AM BUT, HOWEVER, HE WENT ON TO OBSERVE ON THE BASIS OF THE SERVICE OF N OTICE DATED 29.6.2005 WHICH HE HELD TO BE BEYOND THE LIMITATION AS PROVIDED U/S 148 OF THE ACT. HE ACCEPTED THE CONTENTION OF THE ASSESSEE THAT THE ISSUANCE OF NOTICE ON 29.6.2005 WAS A FRESH NOTICE. ACCORDING TO HIM, THERE IS NO EVIDENCE ON RECORD FROM WHICH IT CAN BE GATHERED THAT THE ASSESSEE WAS HAVING THE KNOWLEDGE OF THE PROCEEDING S BEFORE THE SERVICE OF NOTICE ON HIM. THE LEARNED JM FULLY JUS TIFIED THE ORDER OF THE CIT(A) AND HE DID NOT FIND ANY MERIT IN THE APPEAL FILED BY THE REVENUE. THAT IS HOW THE DIFFERENCE CROPPED UP IN DEALING WI TH THIS APPEAL BY THE DIVISION BENCH. 12. THE LEARNED COUNSEL FOR THE ASSESSEE STRONGLY A RGUED IN SUPPORT OF THE ORDER OF THE CIT(A). HE RELIED UPON THE CAS E LAWS FILED IN THE PAPER BOOK. ACCORDING TO HIM, IT WAS ARGUED THAT SECOND NOTICE UNDER SECTION 148 DATED 17.6.2005 WAS ISSUED ON THE SAME REASONS RECORDED EARLIER. THIS NOTICE, ACCORDING TO HIM, WAS NOT A VALID NOTICE. THE ASSESSMENT FRAMED IN PURSUANCE OF SUCH INVALID NOTI CE IS LIABLE TO BE QUASHED. RELIANCE WAS PLACED ON THE DECISION OF HO NBLE ALLAHABAD ITA NO.169/AGR/2007 12 HIGH COURT IN THE CASE OF CIT VS MOTILAL PADAMPAT S UGAR MILLS P.LTD. - 196 ITR 25 (ALL.) AND ALSO ON THE DECISION OF HONB LE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. JAIDE JAIN 227 ITR 3 02 (RAJ.) AND ON THE DECISION OF HONBLE KERALA HIGH COURT IN THE CASE O F SMT.NILOFAR HAMEED VS. ITO 235 ITR 161 (KER.). MY ATTENTION WAS ALSO DRAWN TO THE DECISION OF DR.SHASHI KANT GARG 285 ITR 158 ( ALL.). 13. THE LEARNED DR, ON THE OTHER HAND, TOOK ME THRO UGH THE DISCUSSIONS IN THE ORDER OF THE LEARNED AM AND STRO NGLY JUSTIFIED THE STAND OF THE ASSESSING OFFICER THAT THERE HAS BEEN AN ISSUE OF THE NOTICE ON 28.3.2005 AND THE FRAMING OF THE ASSESSME NT IS BASED ON SUCH NOTICE IN THE FILE AND THE SERVICE OF NOTICE O N 29.6.2005 IS WHOLLY IRRELEVANT IN DECIDING THE VALIDITY OF THE PROCEEDI NGS FRAMED BY THE AO FOR THE YEAR IN QUESTION. 14. I HAVE CAREFULLY GONE THROUGH THE RECORDS AS WE LL AS THE DISSENTING ORDERS OF BOTH THE MEMBERS. AS THE GROU NDS OF APPEAL AND THE TWO DISSENTING ORDERS REVEAL, I AM NOT CONCERNE D WITH THE MERITS OF THE CASE BUT ONLY CONCERNED WITH THE VALIDITY OF TH E PROCEEDINGS ON THE GROUND THAT NOTICE UNDER SECTION 148 DATED 17.6.200 5 IS BEYOND THE TIME LIMIT UNDER SECTION 149 OF THE IT ACT. THE AS SESSEE HAS TAKEN AS MANY AS SEVEN GROUNDS OF APPEAL BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A) FOUND FAVOUR WITH THE FIRST TWO GROU NDS MENTIONED BELOW AND HELD THAT THE OTHER GROUNDS HAVE BECOME A CADEMIC AS THE ORDER PASSED BY THE ASSESSING OFFICER IS QUASHED ON THE FIRST TWO GROUNDS:- 1. BECAUSE THE NOTICE U/S 148 DT. 17/06/2005 IS BE YOND THE TIME LIMIT U/S 149 OF THE INCOME TAX ACT, THUS THE PROCEEDING FOR ASSESSMENT ARE VOID-AB-INITIO. 2. BECAUSE THE ASSESSMENT ORDER PASSED U/S 143(3)/1 47 IS WRONG, ILLEGAL AND THUS IS LIABLE TO BE ANNULLED . ITA NO.169/AGR/2007 13 15. THE ISSUE BEFORE THE DIVISION BENCH AS COULD BE SEEN FROM THE ORDER OF THE CIT(A) ITSELF IS NARROWED DOWN AS TO T HE VALIDITY OF THE ASSESSMENT MADE BY THE AO UNDER SECTION 143(3) AND 147 IN THE LIGHT OF THE INITIATION OF REASSESSMENT PROCEEDINGS BY IS SUANCE OF NOTICE. THE PROVISIONS OF SECTION 147 TO 151 ARE SPECIFIC P ROVISIONS WHICH ENABLE THE DEPARTMENT TO REASSESS ANY INCOME THAT H AS ESCAPED ASSESSMENT. THESE PROVISIONS UNDERWENT SIGNIFICANT CHANGES WITH EFFECT FROM 1.4.1989. IN THE LIGHT OF THESE CHANGE S, EACH AND EVERY INITIATION OF ASSESSMENT PROCEEDINGS MADE ON OR AFT ER 1.4.1989 MUST BE GOVERNED BY THE AMENDED PROVISIONS AS HELD BY TH E DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF RAKESH AGGA RWAL VS. ACIT 225 ITR 496. UNDER SECTION 148(1), BEFORE MAKING AN AS SESSMENT, REASSESSMENT AND COMPUTATION U/S 147, THE ASSESSING OFFICER IS REQUIRED TO SERVE ON THE ASSESSEE A NOTICE REQUIRIN G HIM TO FURNISH A RETURN OF INCOME. UNDER SECTION 148(2), THE AO, B EFORE ISSUING ANY NOTICE U/S 148(1), IS REQUIRED TO RECORD HIS REASON S FOR DOING SO. THE PROVISIONS RELATING TO THE TIME LIMIT FOR ISSUANCE OF NOTICE ARE SET OUT IN SECTION 149 WHICH READ AS UNDER:- TIME LIMIT FOR NOTICE TIME LIMIT FOR NOTICE TIME LIMIT FOR NOTICE TIME LIMIT FOR NOTICE. 149. 149. 149. 149. [(1) NO NOTICE UNDER SECTION 148 SHALL BE ISSU ED FOR THE RELEVANT ASSESSMENT YEAR, - [(A) IF FOUR YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS THE CASE FALLS UND ER CLAUSE (B); (B) IF FOUR YEARS, BUT NOT MORE THAN SIX YEARS, HAV E ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEA R UNLESS THE INCOME CHARGEABLE TO TAX WHICH HAS ESCAP ED ASSESSMENT AMOUNTS TO OR IS LIKELY TO AMOUNT TO ONE LAKH RUPEES OR MORE FOR THAT YEAR.] EXPLANATION. - IN DETERMINING INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT FOR THE PURPOSES OF TH IS SUB-SECTION, THE PROVISIONS OF EXPLANATION 2 OF SEC TION 147 SHALL APPLY AS THEY APPLY FOR THE PURPOSES OF THAT SECTION.] ITA NO.169/AGR/2007 14 (2) THE PROVISIONS OF SUB-SECTION (1) AS TO THE ISS UE OF NOTICE SHALL BE SUBJECT TO THE PROVISIONS OF SECTIO N 151. (3) IF THE PERSON ON WHOM A NOTICE UNDER SECTION 14 8 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 PURSUAN CE 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 TWO YEARS FROM THE END OF THE RELEVA NT ASSESSMENT YEAR. 16. THE ABOVE PROVISIONS CAME UP FOR CONSIDERATION BEFORE THE HON'BLE SUPREME COURT IN THE CASE OF R.K.UPADHYAYA CITED SUPRA. THE NOTICE IN THE CASE BEFORE THE HON'BLE SUPREME COURT WAS ISSUED BY REGISTERED POST ON MARCH 31, 1970 AND WAS RECEIVED BY THE ASSESSEE ON APRIL 3, 1970. THE HONBLE GUJARAT HIGH COURT B Y ITS 20 TH AUGUST, 1973 HAD QUASHED THE NOTICE FOR REASSESSMENT ISSUED UNDER SECTION 147(B) OF THE IT ACT FOR THE AY 1965-66. THE HON'B LE SUPREME COURT EXAMINED THE PROVISIONS OF SECTION 34(1) OF THE IND IAN INCOME-TAX ACT, 1922 AS ALSO THE PROVISIONS OF SECTION 148 AND 149( 1) OF THE INCOME- TAX ACT. AFTER REPRODUCING THE RELEVANT PROVISIONS , THE HON'BLE SUPREME COURT OBSERVED AS UNDER:- THE SCHEME OF THE 1961 ACT SO FAR AS NOTICE FOR REASSESSMENT IS CONCERNED IS QUITE DIFFERENT. WHAT USED TO BE CONTAINED IN SECTION 34 OF THE 1922 ACT HAS BEEN SPREAD OUT INTO THREE SECTIONS, BEING SECTIONS 147, 148 AN D 149, IN THE 1961 ACT. A CLEAR DISTINCTION HAS BEEN MADE OU T BETWEEN ISSUE OF NOTICE AND SERVICE OF NOTICE U NDER THE 1961 ACT. SECTION 149 PRESCRIBES THE PERIOD OF LIM ITATION. IT CATEGORICALLY PRESCRIBES THAT NO NOTICE UNDER SE CTION 148 SHALL BE ISSUED AFTER THE PRESCRIBED LIMITATION HAS LAPSED. SECTION 148(1) PROVIDES FOR SERVICE OF NOTICE AS A CONDITION PRECEDENT TO MAKING THE ORDER OF ASSESSMENT. ONCE A NOTICE IS ISSUED WITHIN THE PERIOD OF LIMITATION, J URISDICTION BECOMES VESTED IN THE INCOME-TAX OFFICER TO PROCEED TO REASSESS. THE MANDATE OF SECTION 148(1) IS THAT REASSESSMENT SHALL NOT BE MADE UNTIL THERE HAS BEEN SERVICE. THE REQUIREMENT OF ISSUE OF NOTICE IS SAT ISFIED ITA NO.169/AGR/2007 15 WHEN A NOTICE IS ACTUALLY ISSUED. IN THIS CASE, AD MITTEDLY THE NOTICE WAS ISSUED WITHIN THE PRESCRIBED PERIOD OF LIMITATION AS MARCH 31, 1970, WAS THE LAST DAY OF T HAT PERIOD. SERVICE UNDER THE NEW ACT IS NOT A CONDITI ON PRECEDENT TO CONFERMENT OF JURISDICTION ON THE INCO ME-TAX OFFICER TO DEAL WITH THE MATTER BUT IT IS A CONDITI ON PRECEDENT TO THE MAKING OF THE ORDER OF ASSESSMENT. THE HIGH COURT, IN OUR OPINION, LOST SIGHT OF THE DISTI NCTION AND UNDER A WRONG BASIS FELT BOUND BY THE JUDGMENT IN B ANARSI DEBI V. ITO [1964] 53 ITR 100. AS THE INCOME-TAX O FFICER HAD ISSUED NOTICE WITHIN LIMITATION, THE APPEAL IS ALLOWED AND THE ORDER OF THE HIGH COURT IS VACATED. 17. IT MAY BE MENTIONED THAT SECTION 34(1) OF THE 1 922 ACT SPECIFICALLY PROVIDES TIME LIMIT FOR SERVICE OF NOT ICE FOR REASSESSMENT PROCEEDINGS WITHIN WHICH THE REASSESSMENT NOTICE HA D TO BE SERVED IN ORDER THAT THE INITIATION WOULD BE VALID. IN THAT STATE OF LAW, IF A REASSESSMENT NOTICE WAS NOT SERVED WITHIN THE PERIO D PRESCRIBED, THE PROCEEDINGS WERE INVALID. THE MERE ISSUE OF SUCH N OTICE WITHIN SUCH PERIOD WAS NOT ENOUGH. IT WAS SO HELD BY THE HONB LE ALLAHABAD HIGH COURT IN THE CASE OF SRI NIWAS VS. ITO (1956) 30 ITR 381, CIT VS. D.V.GHURYE (1957) 31 ITR 683 (BOM), AND CIT VS. J OKHIRAM BAL MUKAND (1966) 60 ITR 357 (PUNJ.). THE HON'BLE SU PREME COURT IN THE CASE OF R.K.UPADHYAYA (SUPRA) HAS SET AT REST ALL T HE CONTROVERSIES THAT EXISTED IN THIS REGARD. AGAIN, THE FULL BENCH OF T HE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF JAI HANUMAN TRADI NG CO.PVT.LTD. VS. CIT 110 ITR 36, HAS HELD THAT IN THE SCHEME OF 19 61 ACT, A TIME LIMIT UNDER SECTION 149 HAS BEEN PRESCRIBED WITH REFERENC E TO THE ISSUANCE OF THE NOTICE AND NOT WITH REFERENCE TO ITS SERVICE . IN TAKING THAT VIEW, THE PUNJAB FULL BENCH OVERRULED ITS OWN DECISION OF THE DIVISION BENCH IN TIKKA KHUSHWANT SINGH VS. CIT 101 ITR 106 (PUN J.). THUS, A NOTICE ISSUED WITHIN THE PERIOD PRESCRIBED UNDER SECTION 1 49, EVEN THOUGH SERVED THEREAFTER, GIVES A PERFECTLY VALID INITIATI ON. REFERENCE MAY BE MADE TO THE DECISION OF HON'BLE DELHI HIGH COURT IN NEW BANK OF INDIA LTD. VS. ITO 136 ITR 679. THE PUNJAB DECISION IN 101 ITR 106 (PUNJ.) WAS TAKEN UP IN APPEAL BEFORE THE HON'BLE SUPREME C OURT IN CIT VS. ITA NO.169/AGR/2007 16 MAJOR TIKKA KHUSHWANT SINGH 212 ITR 650 WHERE THE HON'BLE SUPREME COURT HELD THAT THE POINT OF LAW INVOLVED F OR DECISION IN THIS APPEAL IS ALREADY SETTLED BY THE DECISION OF HON'BL E SUPREME COURT IN R.K.UPADHYAYA (SUPRA). THEREFORE, NOW, THERE SHOUL D BE NO CONTROVERSY AFTER THE DECISION OF THE HON'BLE SUPRE ME COURT IN THE CASE OF R.K.UPADHYAYA (SUPRA) WHEREIN IT HAS BEEN H ELD THAT THE SCHEME OF THE INCOME-TAX ACT, 1961, SO FAR AS NOTIC E FOR REASSESSMENT IS CONCERNED, IS QUITE DIFFERENT FROM THAT OF THE 1 922 ACT. A CLEAR DISTINCTION HAS BEEN MADE OUT BETWEEN ISSUANCE OF N OTICE AND SERVICE OF NOTICE UNDER THE 1961 ACT. SECTION 149 OF THE 1 961 ACT, WHICH PROVIDES THE PERIOD LIMITATION, CATEGORICALLY PROVI DES THAT NO NOTICE UNDER SECTION 148 SHALL BE ISSUED AFTER THE PERIOD PRESCRIBED HAS LAPSED. ONCE A NOTICE IS ISSUED WITHIN THE PERIOD OF LIMITATION, JURISDICTION BECOMES VESTED IN THE ASSESSING OFFICE R TO PROCEED TO REASSESS. THE DECISION OF THE HON'BLE SUPREME COUR T IN SHANABHAI P.PATEL VS. R.K.UPADHYAYA 96 ITR 141 HAS IMPLIEDL Y APPROVED THE VIEW TAKEN IN JAI HANUMAN TRADING CO.PVT.LTD. (SUPR A), NEW BANK OF INDIA LTD. VS. ITO 136 ITR 679 AND PATNA FULL BEN CH DECISION IN CIT VS. SHEO KUMARI DEBI 157 ITR 13. 18. THE EXPRESSION ISSUE HAS BEEN DEFINED IN BLACKS LAW DICTIONARY TO MEAN TO SEND FORTH; TO EMIT; TO PROMULGATE; AS , AN OFFICER ISSUES ORDERS, PROCESS ISSUES FROM COURT. TO PUT INTO CIRCULATION; AS, THE TREASURY ISSUES NOTES. TO SEND OUT, TO SEN D OUT OFFICIALLY; TO DELIVER, FOR USE, OR AUTHORITATIVELY; TO GO FORTH A S AUTHORITATIVE OR BINDING. WHEN USED WITH REFERENCE TO WRITS, PROCES S, AND THE LIKE, THE TERM IS ORDINARILY CONSTRUED AS IMPORTING DELIVERY TO THE PROPER PERSON, OR TO THE PROPER OFFICER FOR SERVICE ETC. 19. AGAIN, IN P.RAMANATHAN AIYERS LAW LEXICON , THE WORD ISSUE HAS BEEN DEFINED AS FOLLOWS:- ITA NO.169/AGR/2007 17 ISSUE ISSUE ISSUE 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 (WORCES TER DICT.); THE ULTIMATE RESULT OR END. AS A VERB, TO ISSUE MEANS TO SEND OUT, TO SEND OU T 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 BINDIN G, TO PROCEED OR ARISE FROM; TO PROCEED AS FROM A SOURCE (CENTURY DICT.). ISSUE OF PROCESS. GOING OUT OF THE HANDS OF THE CL ERK, EXPRESSED OR IMPLIED, TO BE DELIVERED TO THE SHERIF F FOR SERVICE. A WRIT OR NOTICE IS ISSUED WHEN IT IS PUT IN PROPER FORM AND PLACED IN ANY OFFICERS HANDS FOR SERVICE, AT THE TIME IT BECOMES A PERFECTED PROCESS. ANY PROCESS MAY BE CONSIDERED ISSUED IF MADE OUT AND PLACED IN THE HANDS OF A PERSON AUTHORIZED TO SERVE IT, AND WITH A BONA FIDE INTENT TO HAVE IT SERVED. 20. NOW, WE WILL EXAMINE THE FACTS OF THIS CASE IN THE LIGHT OF THE ABOVE DISCUSSION. AS RIGHTLY ANALYZED BY THE LEARN ED AM, THERE HAS BEEN A VALID ISSUE OF THE NOTICE DATED 28.3.2005. THIS NOTICE WAS SENT THROUGH SPEED POST AND THE AO IN REMAND PROCEEDINGS HAS SPECIFICALLY PLEADED THAT THE ENTIRE REASSESSMENT WAS BASED ON T HE ISSUE OF NOTICE DATED 28.3.2005. IN MY VIEW, THERE HAS BEEN PROPER ISSUE OF NOTICE WITHIN THE LIMITATION PERIOD OF SIX YEARS AND I FUL LY AGREE WITH THE REASONING AND DISCUSSION GIVEN BY THE LEARNED AM IN THIS REGARD TO UPHOLD THE VALIDITY OF ASSESSMENT FRAMED. IN FACT, THAT IS THE ONLY VIEW POSSIBLE IN THE LIGHT OF THE AUTHORITATIVE PRONOUNC EMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF R.K.UPADHYAYA (SUPRA). SINCE THERE IS A VALID ISSUE OF NOTICE, THE REASSESSMENT IS PERFECTL Y VALID IN ACCORDANCE WITH LAW AS HELD BY THE LEARNED ACCOUNTANT MEMBER. I ENTIRELY AGREE WITH HIM ON THIS ISSUE. 21. IN MY OPINION, THE DECISION OF THE HON'BLE SUPR EME COURT IN THE CASE OF R.K.UPADHYAYA (SUPRA) THROWS SUFFICIENT LIG HT ON THE ITA NO.169/AGR/2007 18 CONTROVERSY THAT CROPPED UP BETWEEN THE MEMBERS. I N THE LIGHT OF THE AUTHORITATIVE DECISION OF THE APEX COURT ON THE ISS UE, I CONSIDER IT UNNECESSARY AND SUPERFLUOUS TO DEAL WITH THE CASE L AWS RELIED UPON BY THE ASSESSEE. IN ANY CASE, THE ORDER OF THE LEARNE D ACCOUNTANT MEMBER, WITH WHICH I AM AGREEING, HAS ELABORATELY D EALT WITH ALL THE CASE LAWS. 22. THE MATTER SHALL NOW BE PLACED BEFORE THE REGUL AR BENCH FOR PASSING APPROPRIATE ORDER. DECISION PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST, 2011. SD/- (G.E.VEERABHADRAPPA (G.E.VEERABHADRAPPA (G.E.VEERABHADRAPPA (G.E.VEERABHADRAPPA) )) ) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 30.08.2011 VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR