Dr. V. Sudarshini, Bengaluru V. Income Tax Officer, Ward-5(3)(2), Bengaluru

ITA 741/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4253 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 09-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR ADD L
• Assessee Lawyers: S RAMASUBRAMANIAM
• Keywords: Period of limitation; Competent authority
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI JASON P. BOAZ , ACCOUNTANT MEMBER ITA NOS. A.Y. APPELLANT(S) VS. RESPONDENT(S) 798/BANG/2018 2008-09 MR. VENKATAREDDY MANJUNATH, NO.1, 7 TH FLOOR, VOKKALIGA BHAVAN, HUDSON CIRCLE, BANGALORE 560 027. PAN: AFSPM 0587R THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 5(2)(1), BANGALORE. 741/BANG/2018 2008-09 DR. V. SUDARSHINI, # 1324, SOBHA DEW FLOWER APARTMENTS, SARAKKI MAIN ROAD, 4 TH CROSS, J.P. NAGAR 1 ST PHASE, BENGALURU 560 078. PAN: ADCPV 3784B THE INCOME TAX OFFICER, WARD 5(3)(2), BENGALURU. 1203/BANG/2018 2008-09 SMT. B.A. INDIRAMMA, NO.13, 2 ND CROSS, SHANKARAPURAM, BENGALURU 560 004. PAN: AAPPI 2247E THE INCOME TAX OFFICER, WARD 5(2)(3), BENGALURU. APPELLANT S BY : SHRI S. RAMASUBRAMANIAM, CA RESPONDENT BY : DR. P .V. PRADEEP KUMAR, A DDL.CIT(DR)(ITAT) DATE OF HEARING : 14.01.2019 DATE OF PRONOUNCEMENT : 08 .0 2 .2019 ITA NOS.798, 741 & 1203/BANG/2018 PAGE 2 OF 13 O R D E R PER N.V. VASUDEVAN, VICE PRESIDENT THESE ARE APPEALS BY THE THREE DIFFERENT ASSESSEE S AGAINST THREE DIFFERENT ORDERS DATED 27.11.2017 AND 22.11.2017 OF CIT(APPEALS)-5, BENGALURU, AND DATED 03.01.2018 OF CIT(APPEALS)-10, BENGALURU, ALL RELATING TO ASSESSMENT YEAR 2008-09. SINCE SOM E COMMON ISSUES ARE INVOLVED IN THESE APPEALS, THEY WERE HEARD TOGETHER AND WE DEEM IT CONVENIENT TO PASS A COMMON ORDER. 2. WE SHALL FIRST TAKE UP FOR CONSIDERATION THE A PPEALS IN ITA NO.1798 & 1203/BANG/2018 IN WHICH THE TWO ASSESSEES HAVE CH ALLENGED THE VALIDITY OF NOTICE ISSUED U/S. 148 OF THE INCOME-TAX ACT, 19 61 [THE ACT] AS BAD IN LAW ON THE GROUND THAT IT IS ISSUED BEYOND A PERIOD OF SIX YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR. 3. THE ASSESSEES IN BOTH THESE APPEALS ARE INDIVIDU ALS. NOTICE U/S. 148 OF THE ACT WAS ISSUED TO BOTH THE ASSESSEES DAT ED 31.03.2015 BY THE AO FOR THE PURPOSE OF MAKING A REASSESSMENT U/S. 14 7 OF THE ACT IN RESPECT OF INCOME THAT HAS ESCAPED ASSESSMENT. AS PER THE PROVISIONS OF SECTION 148 OF THE ACT, BEFORE MAKING A REASSESSMENT U/S. 1 47, THE AO HAS TO SERVE ON THE ASSESSEE NOTICE REQUIRING HIM TO FURNI SH A RETURN. SECTION 149 OF THE ACT PRESCRIBES TIME LIMIT FOR ISSUE OF NOTIC E U/S. 148 OF THE ACT. IT IS NOT IN DISPUTE THAT THE TIME LIMIT APPLICABLE IN TH E CASE OF BOTH THE ASSESSEES IS A PERIOD OF SIX YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR. THE RELEVANT ASSESSMENT YEAR BEING AY 2008-0 9, THE PERIOD OF SIX YEARS WOULD END ON 31.3.2015. 4. THE DISPUTE IN BOTH THESE APPEALS IS WITH REGARD TO THE DATE ON WHICH THE NOTICE DATED 31.03.2015 U/S. 148 OF THE A CT WAS ISSUED BY THE AO. IT IS NOT IN DISPUTE THAT THOUGH THE NOTICE U/ S. 148 OF THE ACT IN THE CASE OF BOTH ASSESSEES IS DATED 31.03.2015, THE SAME WAS HANDED OVER TO THE ITA NOS.798, 741 & 1203/BANG/2018 PAGE 3 OF 13 POSTAL AUTHORITIES FOR THE PURPOSE OF SERVICE ON TH E ASSESSEE ONLY ON 01.04.2015. THE QUESTION THAT NEEDS TO BE DECIDED THEREFORE IS AS TO, WHETHER THE DATE OF ISSUE OF NOTICE SHOULD BE TAKEN AS THE DATE ON WHICH THE NOTICES BEAR OR THE DATE ON WHICH THE NOTICE WA S HANDED OVER TO THE POSTAL AUTHORITIES FOR THE PURPOSE OF SERVICE ON TH E ASSESSEE. THE PLEA OF THE ASSESSEE IS THAT THE DATE OF ISSUE OF NOTICE U/ S. 148 OF THE ACT IS THE DATE ON WHICH THE LETTER CONTAINING THE NOTICE ADDR ESSED TO THE ASSESSEE AND PROPER POSTAGE STAMP PAID IS DELIVERED TO THE P OST OFFICE FOR THE PURPOSE OF TRANSMISSION TO THE ASSESSEE. THE ASSES SEE IN THIS REGARD HAS PLACED RELIANCE ON THE DECISION OF THE HONBLE GUJA RAT HIGH COURT IN THE CASE OF KANUBHAI M. PATEL (HUF) V. HIREN BHATT {2011] 12 TA XMANN.COM 198 (GUJ). IN THE AFORESAID CASE, THE LAST DATE OF LIMITATION FOR ISSUE OF NOTICE U/S. 148 WAS 31.02.2010. HOWEVER, THE SAID NOTICES WERE SENT FOR BOOKING AT THE SPEED POST CENTRE ON 07.04.2010. TH E QUESTION BEFORE THE COURT WAS AS TO, WHETHER THE DATE OF ISSUE OF NOTIC E U/S. 148 OF THE ACT SHOULD BE 31.03.2010 OR 07.04.2010. THE HONBLE GU JARAT HIGH COURT HELD AS FOLLOWS:- 14. IN THE BACKGROUND OF THE AFORESAID FACTS AND CONTENTIONS, THE CORE ISSUE THAT ARISES FOR CONSIDERATION IS AS TO WHEN CAN THE NOTICE UNDER SECTION 148 OF THE ACT BE SAID TO HAVE BEEN ISSUED. IN THIS CONTEXT IT WOULD BE NECESSARY TO EXAMINE TH E TRUE IMPORT OF THE EXPRESSION 'SHALL BE ISSUED' AS EMPLOYED IN SECTION 149 OF THE ACT. 15. THE EXPRESSION 'ISSUE' HAS BEEN DEFINED IN BLA CK'S LAW DICTIONARY TO MEAN 'TO SEND FORTH; TO EMIT; TO PROM ULGATE; AS, AN OFFICER ISSUES ORDERS, PROCESS ISSUES FROM COURT. T O 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 CONST RUED AS IMPORTING DELIVERY TO THE PROPER PERSON, OR TO THE PROPER OFFICER FOR SERVICE ETC. ITA NOS.798, 741 & 1203/BANG/2018 PAGE 4 OF 13 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 (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 CLE RK, 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 AN OFFICER'S 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 AUTHORISED TO SERVE IT, AND WITH A BONA FIDE INTENT TO HAVE IT SERVED. 16. THUS, THE EXPRESSION TO ISSUE IN THE CONTEXT O F ISSUANCE OF NOTICES, WRITS AND PROCESS, HAS BEEN ATTRIBUTED THE MEANING, TO SEND OUT; TO PLACE IN THE HANDS OF THE PROPER OFFIC ER 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 31.0 3.2010, 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 NOTIC ES ON 31.03.2010, CANNOT BE EQUATED WITH ISSUANCE OF NOTI CE AS CONTEMPLATED UNDER SECTION 149 OF THE ACT. THE DATE OF ISSUE WOULD BE THE DATE ON WHICH THE SAME WERE HANDED OVE R FOR SERVICE TO THE PROPER OFFICER, WHICH IN THE FACTS O F THE PRESENT CASE WOULD BE THE DATE ON WHICH THE SAID NOTICES WE RE ACTUALLY HANDED OVER TO THE POST OFFICE FOR THE PURPOSE OF B OOKING FOR THE PURPOSE OF EFFECTING SERVICE ON THE PETITIONERS . TILL THE POINT OF TIME THE ENVELOPES ARE PROPERLY STAMPED WI TH ITA NOS.798, 741 & 1203/BANG/2018 PAGE 5 OF 13 ADEQUATE VALUE OF POSTAL STAMPS, IT CANNOT BE STATE D THAT THE PROCESS OF ISSUE IS COMPLETE. IN THE FACTS OF THE PRESENT CASE, THE IMPUGNED NOTICES HAVING BEEN SENT FOR BOOKING TO TH E SPEED POST CENTRE ONLY ON 07.04.2010, THE DATE OF ISSUE OF THE SAID NOTICES WOULD BE 07.04.2010 AND NOT 31.03.2010, AS CONTENDE D ON BEHALF OF THE REVENUE. IN THE CIRCUMSTANCES, IMPUGNED THE NOTICES UNDER SECTION 148 IN RELATION TO ASSESSMENT YEAR 2003-04, HAVING BEEN ISSUED ON 07.04.2010 WHICH IS CLEARLY BEYOND THE PE RIOD OF SIX YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, ARE CLEARLY BARRED BY LIMITATION AND AS SUCH, CANNOT BE SUSTAIN ED. 5. THE PLEA OF THE REVENUE IS THAT THE AO WHO HAS I SSUED THE NOTICES U/S 148 IN THE CASE OF ALL THE THREE ASSESSEES IS W ORKING IN THE PRIVATE SALARY RANGE -5(3), BANGALORE. THIS RANGE IS A HUGE RANGE WITH TEN (10) OFFICES, VIZ., OFFICE OF THE RANGE ADDITIONAL/JOINT COMMISSIONER OF INCOME- TAX, OFFICES OF TWO (2) ASSISTANT / DEPUTY COMMISSI ONERS OF INCOME-TAX AND SEVEN (7) ITOS. ALL THESE OFFICERS / OFFICES REGULA RLY MAKE HUGE CORRESPONDENCE WITH THE PRIVATE SALARIED EMPLOYEES OF BANGALORE CITY, WHO WILL BE IN LAKHS. FOR MAINTAINING AND PROPER CONTRO L OF THE OUTWARD & INWARD CORRESPONDENCE (TAPAAL), THERE IS AN INDEPENDENT CE NTRAL DISPATCH SECTION WITH SEPARATE STAFF WORKING UNDER THE DIRECT SUPERV ISION OF THE RANGE HEAD. 6. THE OFFICE PROCEDURE LEADING TO THE ISSUE OF NOTICE FOLLOWED IN THE RANGE 5(3), BANGALORE, AS ENUMERATED BY THE AO IN H IS LETTER DATED 25TH SEPTEMBER, 2018 (PAPER BOOK PAGE NO. 45 - 46) IS AS UNDER : (I) FIRST AO SIGNS THE NOTICE. (II) IT IS THEN HANDED OVER TO THE CENTRAL DISPATCH S ECTION WORKING UNDER THE DIRECT CONTROL OF THE RANGE HEAD (ADDL. / JOINT COMMISSIONER). THIS CENTRAL DISPATCH SECTION OF THE RANGE IS INDEPENDENT OF THE ASSESSMENT UNITS AND MANAGED BY A DISPATCH CLERK WHO REPORTS TO THE RANGE HEAD. THE AO HAS NO CONTROL OR AUTHORITY WHATSOEVER ON THE FUNCTIONING OF THE DISP ATCH CLERK. ITA NOS.798, 741 & 1203/BANG/2018 PAGE 6 OF 13 (III) THE OFFICIAL IN-CHARGE OF THE DISPATCH SECTION, I .E., DISPATCH CLERK WHILE ACCEPTING THE NOTICE, ACKNOWLEDGES IT B Y AFFIXING THE 'DISPATCH STAMP' WITH DATE AND HIS SHORT SIGNAT URE. (IV) DISPATCH SEAL IS THE PROOF OF DISPATCH OF THE NOT ICE AND THE DATE MENTIONED IN THE SEAL IS THE DATE OF HANDING OVER O F THE NOTICE IN THE DISPATCH SECTION. (V) ONCE THE NOTICE IS DISPATCHED I.E., HANDED OVER TO THE DISPATCH CLERK, IT GOES OUT OF THE CONTROL OF THE AO. ACCORD ING TO AO HE BECOMES FUNCTUS OFFICIO WITH RESPECT TO SUCH NOTICE , ONCE THE NOTICE IS DISPATCHED. (VI) THE DISPATCH CLERK PUTS THE NOTICE IN A COVER, SEAL S THE COVER, WRITES THE ADDRESS OF THE ASSESSEE. (VII) HE THEN ENTERS THE DETAILS OF THE ADDRESSEE OF THE NOTICE IN THE SPEED POST BOOKING JOURNAL (SPBJ) ISSUED BY THE DEP ARTMENT OF POSTS, GOVERNMENT OF INDIA AND AFFIXES THE CORRE CT BAR CODE STICKER AVAILABLE AGAINST EACH ENTRY ON THE COVER C ONTAINING THE NOTICE. EACH SPBJ CONTAINS 200 RECEIPTS. (VIII) ONCE DETAILS ARE ENTERED IN THE BOOKING JOURNAL (SP BJ), THE DISPATCH CLERK AWAITS FOR THE POST MAN FROM GOVERNM ENT RUN POSTAL DEPARTMENT TO COME TO HIM (INCOME-TAX OFFICE ) AND TO COLLECT THE COVER CONTAINING THE NOTICE FOR FURTHER CIRCULATION OF THE NOTICE. (IX) NO STAFF / OFFICIAL FROM THE RANGE /INCOME-TAX DEPA RTMENT GOES TO THE POST OFFICE BUT, THE POST OFFICE COMES TO THE DEPARTMENT TO COLLECT THE NOTICE . (X) POST MAN COMES ONCE A DAY TO THE DEPARTMENT, IN T HE AFTERNOON MOSTLY TOWARDS THE END OF THE DAY. (XI) IF THE TAPAAL IS HANDED OVER TO THE DISPATCH CLER K AFTER THE POST MAN COMES & LEAVES ON A PARTICULAR DAY, THE TAPAAL WILL BE PICKED UP BY THE DEPARTMENT OF POSTS, INDIA ONLY ON THE NEXT DAY. ITA NOS.798, 741 & 1203/BANG/2018 PAGE 7 OF 13 (XII) BOOKING OF THE NOTICE IN THE POST OFFICE IS ALWAYS SUBSEQUENT TO THE ACT OF COLLECTING THE NOTICE FROM THE DEPARTMEN T BY THE POST MAN. 7. PAGE NOS. 47 & 48 OF THE PAPER BOOK CONTAIN THE NOTICES U/S 148 ISSUED BY THE AO IN THIS GROUP OF CASES, WHICH CLEA RLY SHOW THE DISPATCH SEAL ON THEM WITH THE DATE & INITIALS OF THE DISPAT CH CLERK. THIS ACCORDING TO THE LEARNED DR IS EVIDENCE THAT THE NOTICES WERE PR OPERLY DISPATCHED AND WENT OUT OF THE CONTROL & POWER OF THE AO ON 31-03- 2015 ITSELF, THOUGH THE OFFICER TO WHOM IT WAS DELIVERED WAS THE DISPATCH S ECTION IN HIS OWN OFFICE. 8. IN SHORT, THE CONTENTION OF THE REVENUE IS THAT THE DATE ON WHICH THE AO SIGNS THE NOTICE U/S. 148 OF THE ACT AND HANDS I T OVER TO THE DESPATCH CLERK IN HIS OFFICE WOULD BE THE DATE ON WHICH THE NOTICE U/S. 148 SHOULD BE TREATED AS ISSUED. ANOTHER CONTENTION OF THE LD . DR WAS THAT THE PROVISIONS OF SECTION 292B OF THE ACT WOULD COME TO THE RESCUE OF THE DEPARTMENT. SECTION 292B OF THE ACT PROVIDES THAT NO NOTICE ISSUED IN PURSUANCE OF ANY PROVISIONS OF THE ACT SHALL BE INV ALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH NOTICE, IF SUCH NOTICE IS, IN SUBSTANCE AND IN FORM, IN CONFORMITY WITH OR ACCORD ING TO THE INTENT AND PURPOSE OF THE ACT. THE LD. DR HAS CITED JUDICIAL PRECEDENTS IN SUPPORT OF THE CASE OF THE REVENUE, WHICH WE WILL DEAL WITH A LITTLE LATER. 9. THE AO AND THE CIT(APPEALS) HELD THAT THE DATE O F DESPATCH WOULD BE THE DATE OF ISSUE OF NOTICE U/S. 148 OF THE ACT. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS WE HAVE ALREADY OBSERVED, IT IS UNDISPUTED THAT THE LAST DATE FOR I SSUE OF NOTICE U/S. 148 IN THE CASE OF TWO ASSESSEES IS 31.03.2015. IT IS ALS O NOT IN DISPUTE THAT THE NOTICES WERE GIVEN TO THE POSTAL AUTHORITIES ON BEH ALF OF THE DEPARTMENT ONLY ON 01.04.2015. IN SIMILAR CIRCUMSTANCES, THE HONBLE GUJARAT HIGH COURT HAS TAKEN A VIEW THAT NOTICE U/S. 148 OF THE ACT IS BARRED BY LIMITATION. WE HAVE ALREADY EXTRACTED THE RELEVANT PORTION OF T HE DECISION OF THE ITA NOS.798, 741 & 1203/BANG/2018 PAGE 8 OF 13 HONBLE GUJARAT HIGH COURT. IT HAS BEEN CLEARLY HE LD THAT SIGNING THE NOTICE ON A PARTICULAR DATE CANNOT BE EQUATED WITH ISSUANC E OF NOTICE U/S. 148 OF THE ACT. THE DATE OF ISSUE WOULD BE THE DATE ON WH ICH THE NOTICES ARE ACTUALLY HANDED OVER TO THE POST OFFICE FOR THE PUR POSE OF EFFECTING SERVICE ON THE ASSESSEES. IN VIEW OF THE AFORESAID DECISIO N OF THE HONBLE GUJARAT HIGH COURT, WE ARE OF THE VIEW THAT THE ASSESSMENTS U/S. 147 IN THE CASE OF BOTH THE ASSESSEES ARE INVALID AND ARE LIABLE TO BE ANNULLED AS BARRED BY LIMITATION. 11. THE LD. DR, HOWEVER, PLACED RELIANCE ON CERTAIN JUDICIAL PRONOUNCEMENTS IN SUPPORT OF HIS CLAIM THAT WHEN TH E NOTICE U/S.148 OF THE ACT IS DULY SIGNED BY THE AO AND IS HANDED OVER TO THE DESPATCHING CLERK, THAT DATE WOULD BE THE DATE OF ISSUE OF NOTICE U/S. 148 OF THE ACT. HE POINTED OUT THAT THE NOTICES IN THE CASE OF BOTH TH E ASSESSEES HAVE BEEN HANDED OVER TO THE DESPATCH SECTION ON 31.3.2015, T HE LAST DATE OF LIMITATION FOR ISSUE OF NOTICE U/S.148 OF THE ACT I N THE CASE OF THE ASSESSEE FOR AY 08-09 AND THEREFORE THE NOTICES WERE ISSUED WITHIN THE PERIOD OF LIMITATION AS LAID DOWN BY SEC.148 READ WITH SEC.14 9 OF THE ACT. 12. THE LEARNED DR RELIED ON THE DECISION OF HON'BL E SUPREME COURT IN COLLECTOR OF CENTRAL EXCISE, MADRAS VS. M/S M.M. RU BBER AND CO., TAMIL NADU AIR 1991 2141 (SC) WHEREIN THE HONBLE SUPREME COURT EXAMINED THE PROVISIONS OF SECTION 35E(3) OF THE CENTRAL EXC ISE & SALT ACT, 1944 WHICH PROVIDED A PERIOD OF LIMITATION FOR EXERCISIN G POWERS OF REVISION OF RECORD OF ANY PROCEEDINGS AND IT SAYS THAT NO ORDE R SHALL BE MADE AFTER THE EXPIRY OF ONE YEAR FROM THE DATE OF DECISION OR ORD ER OF THE ADJUDICATING AUTHORITY. THE ISSUE BEFORE THE COURT WAS AS TO, W HETHER THE TIME PERIOD HAS TO BE RECKONED FROM THE DATE OF THE ORDER OR TH E DATE ON WHICH THE SAME WAS COMMUNICATED TO THE ASSESSEE. THE HONBLE SUPREME COURT HELD THAT IF THE INTENTION OR DESIGN OF THE STATUTO RY PROVISION WAS TO PROTECT THE INTEREST OF THE PERSON ADVERSELY AFFECTED, BY P ROVIDING A REMEDY AGAINST ITA NOS.798, 741 & 1203/BANG/2018 PAGE 9 OF 13 THE ORDER OR DECISION, ANY PERIOD OF LIMITATION PRE SCRIBED WITH REFERENCE TO INVOKING SUCH REMEDY SHALL BE READ AS COMMENCING FR OM THE DATE OF COMMUNICATION OF THE ORDER. BUT IF IT IS A LIMITAT ION FOR A COMPETENT AUTHORITY TO MAKE AN ORDER, THE DATE OF EXERCISE OF THAT POWE R AND IN THE CASE OF EXERCISE OF SUO MOTU POWER OVER THE SUBORDINATE AUTHORITIES, THE DATE O N WHICH SUCH POWER WAS EXERCISED BY MAKING AN ORDER A RE THE RELEVANT DATES FOR DETERMINING THE LIMITATION. THE HONBLE COURT ALSO OBSERVED THAT THE RATIO OF THIS DECISION MAY ALSO BE FOUNDED ON THE P RINCIPLE THAT THE GOVERNMENT IS BOUND BY THE PROCEEDINGS OF THE OFFIC ERS, BUT PERSONS AFFECTED ARE NOT CONCLUDED BY THE DECISION. 13. THE LEARNED DRS SUBMISSION WAS THAT WHEN THE N OTICE U/S.148 IS SIGNED, THE SAME BECOMES OPERATIVE FROM THE DATE ON WHICH IT IS SIGNED. 14. WE FAIL TO SEE AS TO HOW THE AFORESAID DECISION IS RELEVANT FOR THE PRESENT CASE. THE PROVISIONS OF SECTION 148 OF THE ACT MANDATES ISSUE OF A NOTICE BEFORE PROCEEDING TO FRAME AN ASSESSMENT U /S.147 OF THE ACT OF INCOME THAT HAS ESCAPED ASSESSMENT. SEC.149 LAYS D OWN PERIOD OF LIMITATION FOR ISSUE OF NOTICE U/S.148 OF THE ACT. THE ACT OF ISSUING A NOTICE U/S.148 OF THE ACT CANNOT BE EQUATED WITH THE DATE OF ORDER FOR THE PURPOSE OF SEC.35E(3) OF THE CENTRAL EXCISE & SALT ACT, 194 4. 15. THE LEARNED DR RELIED ON DECISION OF HONBLE SU PREME COURT IN STATE OF PUNJAB V. KHEMI RAM, AIR 1970 SC 214 , WHEREIN THE QUESTION BEFORE THE COURT WAS WHETHER AN ORDER OF SUSPENSION UNDER RULE 3.26(D) OF THE PUNJAB CIVIL SERVICES RULES, WHICH PROVIDED THA T A GOVERNMENT SERVANT UNDER SUSPENSION FOR MISCONDUCT SHALL NOT BE PERMIT TED TO RETIRE ON HIS REACHING SUPERANNUATION UNTIL ENQUIRY INTO CHARGE W AS COMPLETED AND FINAL ORDER PASSED THEREON. THE ORDER OF SUSPENSION IN T HE SAID CASE WAS PASSED ON 2.8.1958. THE GOVERNMENT SERVANT RECEIVE D THE ORDER ON 4.8.1958. HE RETIRED ON 4.8.1958 BEFORE RECEIPT OF THE ORDER OF SUSPENSION. THE COURT HELD THAT IT WAS THE COMMUNICATION OF THE IMPUGNED ORDER WHICH ITA NOS.798, 741 & 1203/BANG/2018 PAGE 10 OF 13 WAS HELD TO BE ESSENTIAL AND NOT ITS ACTUAL RECEIPT BY THE OFFICER CONCERNED AND SUCH COMMUNICATION WAS HELD TO BE NECESSARY BEC AUSE TILL THE ORDER IS ISSUED AND ACTUALLY SENT OUT TO THE PERSON CONCERNE D, THE AUTHORITY MAKING SUCH ORDER WOULD BE IN A POSITION TO CHANGE ITS MIN D AND MODIFY IT, IF IT THOUGHT FIT. BUT ONCE SUCH AN ORDER IS SENT OUT, IT GOES OUT OF THE CONTROL OF SUCH AN AUTHORITY, AND THEREFORE, THERE WOULD BE NO CHANCE WHATSOEVER OF ITS CHANGING ITS MIND OR MODIFYING IT. IN THE VIEW OF THE COURT, ONCE AN ORDER IS ISSUED AND IT IS SENT OUT TO THE CONCERNED GOVER NMENT SERVANT, IT MUST BE HELD TO HAVE BEEN COMMUNICATED TO HIM, NO MATTER WH EN HE ACTUALLY RECEIVED IT. 16. THE LEARNED DR SUBMITTED THAT THE NOTICE U/S.14 8 OF THE ACT WENT OUT OF THE CONTROL OF THE AO AND THEREFORE THE DATE OF NOTICE SHOULD BE REGARDED AS THE DATE OF ISSUE OF NOTICE U/S.148 OF THE ACT. 17. WE ARE OF THE VIEW THAT THE DECISION CITED BY T HE LEARNED DR IS NOT OF ANY USE TO THE PLEA OF THE REVENUE. WE HAVE ALREAD Y HELD THAT THE DATE OF COMMUNICATION OF THE ORDER IN THE PRESENT CASE WOUL D BE THE DATE ON WHICH THE LETTER CONTAINING THE NOTICE WITH ADDRESS OF TH E ASSESSEE PROPERLY WRITTEN AND APPROPRIATE POSTAGE STAMP PAID IS DELIV ERED TO THE POSTAL AUTHORITIES 18. THE ABOVE DECISION RENDERED IN A DIFFERENT CONT EXT WOULD THEREFORE NOT ADVANCE THE PLEA OF THE REVENUE. FOR THE VERY SAME REASON GIVEN ABOVE, THE DECISION OF THE HONBLE SUPREME COURT I N BHAGWANDAS GOVERDHANDAS KEDIA V. GIRDHARILAL PARSHOTTAMDAS & C O., AIR 1966 SC 543 RELIED UPON BY THE LEARNED DR IS NOT OF ANY USE TO THE PLEA OF THE REVENUE. IN THE SAID CASE, DECISION WAS RENDERED IN THE CONT EXT OF THE PROVISIONS OF SECTION 4 OF THE CONTRACT ACT, 1872. IT WAS HELD TH AT THE MOMENT THE PROPOSER PUTS HIS PROPOSAL IN THE COURSE OF TRANSMI SSION, IT IS COMPLETE AS AGAINST THE ACCEPTOR I.E. ADDRESSEE. THE LEARNED DR ARGUED THAT THE MOMENT THE NOTICE IS SIGNED AND PUT IN THE COURSE O F TRANSMISSION BY THE ITA NOS.798, 741 & 1203/BANG/2018 PAGE 11 OF 13 DEPARTMENT, THE NOTICE IS DEEMED TO BE SERVED AS TH E COMMUNICATION IS OUT OF THE PROPOSER. WE HAVE ALREADY HELD THAT THE HAND ING OVER OF THE POSTAL COVER TO THE POSTAL AUTHORITIES IS THE DATE OF ISSU E OF NOTICE. THE DECISION CITED RENDERED IN THE CONTEXT OF CONCLUSION OF CONT RACT BETWEEN PARTIES WOULD THEREFORE BE NOT RELEVANT. 19. THE LD. DR ALSO RELIED ON THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF VRA COTTON MILLS PVT. LTD. V. UOI, 359 ITR 495 (P&H). THE HONBLE COURT HAD TO DEAL WITH A CASE OF EXPRES SION OF SERVICE AS OCCURRING U/S. 143(2) OF THE ACT. THE PROVISIONS OF SECTION 148 R.W.S. 149 OF THE ACT ARE DIFFERENT AND THEREFORE T HE AFORESAID DECISION WOULD NOT BE OF ANY ASSISTANCE TO THE PLEA OF THE R EVENUE. BESIDES THE ABOVE, THE AFORESAID DECISION LAYS DOWN THAT THE DA TE OF RECEIPT OF NOTICE WILL BE IRRELEVANT FOR THE PURPOSE OF SECTION 143(2 ) OF THE ACT AND IF THE NOTICE U/S. 143(2) IS ISSUED WITHIN THE PERIOD OF L IMITATION, THEN THAT WOULD BE SUFFICIENT. THIS DECISION DOES NOT DEAL WITH TH E DATE ON WHICH THE NOTICE CAN BE SAID TO HAVE BEEN ISSUED AND THEREFORE THE S AME IS NOT RELEVANT. 20. THE LD. DR ALSO RELIED ON THE DECISION OF THE B ANGALORE BENCH OF ITAT IN THE CASE OF ITO V. MOHTA UDYOG LTD. IN ITA NO.24/BANG/2015 DATE D 26.08.2016 . THIS DECISION IS ALSO IN THE CONTEXT OF ISSUE OF NOTICE U/S. 143(2) OF THE ACT. EVEN IN THIS DECISION, THE TRIB UNAL HAS TAKEN THE VIEW THAT THE MOMENT THE NOTICE IS SIGNED AND PUT IN THE COURSE OF TRANSMISSION BY THE DEPARTMENT, THE NOTICE IS DEEMED TO BE SERVE D. THEREFORE, THE AFORESAID DECISION IS NOT OF HELP TO THE PLEA OF TH E REVENUE. 21. AS FAR AS THE APPLICABILITY OF SECTION 292B OF THE ACT IS CONCERNED, WE ARE OF THE VIEW THAT THE SAME CANNOT COME TO THE RESCUE OF THE REVENUE. FIRSTLY, THE PERIOD OF LIMITATION PRESCRIBED FOR DO ING A PARTICULAR ACT CANNOT BE OVERLOOKED AS A MISTAKE, DEFECT OR OMISSION. SE CONDLY, JUDICIAL DECISIONS HAVE TAKEN A VIEW THAT PROVISIONS OF SECT ION 292B ARE APPLICABLE ITA NOS.798, 741 & 1203/BANG/2018 PAGE 12 OF 13 ONLY TO PROCEDURAL IRREGULARITIES WHICH COULD BE CU RED AND NOT IN CASE WHERE THERE IS LACK OF JURISDICTION IN THE FOLLOWING DECI SIONS:- (I) V. RAMAIAH V. CIT, 356 ITR 656 (MAD) (II) MONGA METALS (P) LTD. V. ACIT [2000] 111 TAXMAN 175 (MAG.) (III) PCIT V. MARUTI SUZUKI INDIA LTD., 397 ITR 681 (DEL) (IV) CIT V. NORTON MOTORS, 275 ITR 595 (P&H) 22. FOR THE REASONS GIVEN ABOVE, WE HOLD THAT REASS ESSMENT PROCEEDINGS IN THE CASE OF BOTH THE ASSESSEES ARE I NVALID AND ARE LIABLE TO BE ANNULLED AND ARE ACCORDINGLY ANNULLED. 23. IN VIEW OF THE AFORESAID DECISION, THE OTHER DI SPUTES RAISED BY THE ASSESSEES IN THEIR APPEALS DO NOT REQUIRE ANY CONSI DERATION. THUS, THESE APPEALS OF THE ASSESSEE ARE ALLOWED. 24. IN THE APPEAL BY THE ASSESSEE IN ITA NO.741/BAN G/2018, THE ONLY ISSUE IS WITH REGARD TO VALIDITY OF NOTICE U/S. 148 OF THE ACT ON THE GROUND THAT IT WAS ISSUED BEYOND SIX YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE FACTS AS IT EXISTS IN THIS CA SE IS IDENTICAL TO THE FACTS AS IT EXISTS IN THE CASE OF OTHER TWO ASSESSEES. I N THIS CASE, RECORDS SHOW THAT A NOTICE U/S. 148 OF THE ACT DATED 31.03.2015 WAS ISSUED BY THE AO. THE RECORDS FURTHER SHOW THAT THIS NOTICE WAS GIVEN TO THE POSTAL AUTHORITIES FOR THE PURPOSE OF TRANSMISSION TO THE ASSESSEE ON 30.03.2015. THEREFORE, THE NOTICE U/S. 148 OF THE ACT IN THIS CASE IS VALI D AND CONSEQUENTLY THE ASSESSMENT FRAMED U/S. 147 OF THE ACT HAS TO BE HEL D AS VALID. 25. THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER, SUBM ITTED THAT WHEN THE NOTICE U/S. 148 IS DATED 31.03.2015, HOW COULD IT B E DELIVERED TO THE POSTAL AUTHORITIES ON 30.03.2015 FOR THE PURPOSE OF TRANSM ISSION TO THE ASSESSEE. ON THIS ASPECT, WE HAVE SEEN THAT THE NOTICE ISSUED U/S. 148 OF THE ACT INSOFAR AS THIS ASSESSEE IS CONCERNED AND WE FIND T HAT THE NOTICE THOUGH IS DATED 31.03.2015, IT HAS BEEN DESPATCHED TO THE DES PATCH SECTION ON 30.03.2015. THUS, IT IS CLEARLY A CASE OF A WRONG MENTIONING OF THE DATE IN ITA NOS.798, 741 & 1203/BANG/2018 PAGE 13 OF 13 THE NOTICE U/S. 148 AND BEYOND THIS, NO OTHER ADVER SE INFERENCE CAN BE DRAWN IN THE FACTS AND CIRCUMSTANCES OF THE CASE. WE, THEREFORE, FIND NO MERIT IN THIS APPEAL BY THE ASSESSEE AND THE SAME I S DISMISSED. 26. IN THE RESULT, THE APPEALS IN ITA NO.798/BANG/2 018 AND 1203/BANG/2018 ARE ALLOWED, WHILE THE APPEAL IN ITA NO.741/BANG/2018 IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 08 TH DAY OF FEBRUARY, 2019. SD/- SD/- ( JASON P. BOAZ ) ( N . V . VASUDEVAN ) ACCOUNTANT MEMBE R VICE PRESIDENT BANGALORE, DATED, THE 08 TH FEBRUARY, 2019. / D ESAI S MURTHY / COPY TO: 1. APPEL LANT (S) 2. RESPONDENT (S) 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.