Kanubhai M. Patel HUF vs. Hiren Bhatt (Gujarat High Court)

DATE: (Date of pronouncement)
DATE: July 26, 2011 (Date of publication)

Click here to download the judgement (kanubhai_patel_148_notice_despatch.pdf)

To decide whether s. 148 notice is “issued” in time, date of handing over by AO to post office to be seen

In respect of AY 2003-04, the AO issued a notice u/s 148 dated 31.3.2010. However, the notice was given by the AO to the post office for dispatch to the assessee on 7.4.2010 and it was delivered to the assessee on 8.4.2010. The assessee filed a Writ Petition contending that though the notice was dated 31.3.2010, it was not “issued” till it was delivered to the post office on 7.4.2010 by which time the limitation period of 6 years from the end of the assessment year prescribed in s. 149 had expired. HELD upholding the plea:

For purposes of s. 149, the expression notice shall be issued” means that the notice should go out of the hands of the AO. On facts, though the notice was signed on 31.3.2010, it was sent to the speed post center for booking only on 7.4.2010. Considering the definition of the word “issue”, merely signing the notices on 31.3.2010 cannot be equated with “issuance of notice” as contemplated u/s 149. The date of issue would be the date on which the same was handed over for service to the proper officer, which in the present case would be the date on which the notices was actually handed over to the post office for the purpose of booking for the purpose of effecting service on the assessee. 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. As the notice was sent for booking to the Speed Post Center on 7.4.2010, the date of “issue” of the notice would be 7.4.2010 and not 31.3.2010, which is beyond the limitation period. Consequently, the reassessment cannot be sustained.

See also Bachhitar Singh vs. State of Punjab A 1963 SC 395, State of Punjab vs. Amar Singh A 1966 SC 1313, CIT vs. Oriental Rubber Works 145 ITR 477 (SC) & Petlad Bulakhidas Mills vs. Raj Singh 37 ITR 264 (Bom) where it was held that an order is not effective until communicated. Contrast with Sanjay Kumar Garg vs. ACIT (ITAT Delhi)

Leave a Reply

Your email address will not be published. Required fields are marked *