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

However, as the DIT-II was exercising supervisory functions over the AO, the real likelihood of “official bias” cannot be ruled out. Even if the officer is impartial and there is no personal bias or malice, nonetheless, a right minded person would think that in the circumstances, there could be a likelihood of bias on his part. In that event, the officer should not sit and adjudicate upon the matter. He should recuse himself. This follows from the principle that justice must not only be done but seen to be done. In order to ensure that no person should think that there is a real likelihood of bias on the part of the officer concerned, the CBDT is directed to ensure that a jurisdictional Commissioner is not nominated as a member of the DRP under Rule 3 (2) of the Rules. By doing this, the principle that justice must not only be done but seen to be done would be ensured

The real intention of the parties in entering into the sale and lease agreement has to be gathered from the words in the agreement in a tangible and in an objective manner and not upon a hypothetical assessment of the supposed motive of the assessee to avoid tax.The lease agreement and invoice show that the ownership of the equipment was that of the assessee. There was a transfer of title. The fact that the transaction was entered into by HSEB in order to raise finance for its day-to-day needs and that HSEB decided to go in for tapping the system of sale and lease back assets as a mode of raising finance at a lower cost does not bind the assessee. HSEB’s intention in going in for the transaction cannot be transposed onto the assessee (Industrial Development Corporation of Orissa 268 ITR 130 (Ori), Rajasthan State Electricity Board 204 CTR 415 (Raj) and Gujarat Gas Company 308 ITR 243 (Guj) followed)

For the GAAR in s. 245 to apply, three aspects have to be satisfied (a) the assessee must obtain a “tax benefit” from a “transaction” or “series of transactions”, (b) the transaction(s) must be an “avoidance transaction” in the sense of not having been “arranged primarily for bona fide purposes other than to obtain the tax benefit” and (c) the avoidance transaction(s) must be abusive of the provisions of the Act, the burden being on the AO to establish the abuse

Aditya Birla Nuvo’s argument that the shares of Idea Cellular were beneficially owned by AT&T Mauritius and that the gains would not be taxable in India under the India-Mauritius DTAA is not acceptable because under the JV agreement, AT&T Mauritius was merely the “permitted transferee” and acted “for and on behalf” of NSWS, USA. It was NCWS, USA which was the “beneficial owner” of the shares of idea Cellular and not AT&T Mauritius. Accordingly, Azadi Bachao Andolan 263 ITR 706 (SC) has no application