{"id":4321,"date":"2012-02-13T09:42:40","date_gmt":"2012-02-13T09:42:40","guid":{"rendered":"http:\/\/itatonline.org\/archives\/?p=4321"},"modified":"2012-02-13T09:57:06","modified_gmt":"2012-02-13T09:57:06","slug":"ito-vs-lal-chand-agarwal-itat-agra-third-member-s-148-issue-of-notice-within-limitation-period-confers-jurisdiction-even-if-service-is-later","status":"publish","type":"post","link":"https:\/\/itatonline.org\/archives\/ito-vs-lal-chand-agarwal-itat-agra-third-member-s-148-issue-of-notice-within-limitation-period-confers-jurisdiction-even-if-service-is-later\/","title":{"rendered":"ITO vs. Lal Chand Agarwal (ITAT Agra Third Member)"},"content":{"rendered":"\n\n
Click here to download the judgement (Lal_Chand_Agarwal_service_148_notice.pdf) <\/strong> <\/a><\/p><\/td>\n<\/tr>\n<\/table>\n


\nS. 148 notice “issued\u201d within limitation period is valid even if \u201cservice\u201d is later
\n<\/strong><\/p>\n

For AY 1998-99, the AO issued a notice u\/s 148 dated 28.3.2005 (within the limitation period of 6 years<\/em>). However, as this notice was returned un-served, a second notice dated 17.6.2005 (beyond 6 years<\/em>) which issued & served. The assessee contended that since the AO had issued a second notice, the first one was non-est and as the second notice was issued beyond limitation period, the assessment proceedings were null and void. The CIT (A) upheld the plea. Before the Tribunal, the AM held that there was a difference between \u201cissue\u201d of the notice and its \u201cservice\u201d and that the notice dated 28.3.2005 was valid, though not served, and the second notice was invalid and non-est. The JM took a contrary view and held that the first notice was invalid and the second notice having been issued after the limitation period did not give jurisdiction to make the assessment. On a reference to the Third Member, HELD:<\/p>\n

The Act makes a clear distinction between \u201cissue of notice\u201d and \u201cservice of notice\u201d<\/strong>. S. 149 which prescribes the period of limitation provides that no notice u\/s 148 shall be \u201cissued\u201d after the expiry of the limitation period. The \u201cservice\u201d of the notice is necessary u\/s 148 only to make the order of assessment. Once a notice is \u201cissued\u201d within the period of limitation, the AO has jurisdiction to make the assessment. A notice is considered to have been \u201cissued\u201d if it is placed in the hands of a person authorized to serve it, and with a bona fide intent to have it served. Service of the notice is not a condition precedent to conferment of jurisdiction on the AO but it is a condition precedent to the making of the order of assessment<\/strong>. On facts, as the AO had issued the notice within the period of limitation, he had jurisdiction to reopen the assessment (R.K.Upadhyay vs. Patel<\/strong> 166 ITR 163 (SC) followed)\n<\/p><\/blockquote>\n

\nSee also Kanubhai M. Patel HUF<\/a><\/strong> 334 ITR 25 (Guj) (“issue” not complete till handed over to P.O<\/em>) & Sanjay Kumar Garg vs. ACIT<\/a><\/strong> (ITAT Delhi)<\/p>\n<\/div>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

The Act makes a clear distinction between \u201cissue of notice\u201d and \u201cservice of notice\u201d<\/strong>. S. 149 which prescribes the period of limitation provides that no notice u\/s 148 shall be \u201cissued\u201d after the expiry of the limitation period. The \u201cservice\u201d of the notice is necessary u\/s 148 only to make the order of assessment. Once a notice is \u201cissued\u201d within the period of limitation, the AO has jurisdiction to make the assessment. A notice is considered to have been \u201cissued\u201d if it is placed in the hands of a person authorized to serve it, and with a bona fide intent to have it served. Service of the notice is not a condition precedent to conferment of jurisdiction on the AO but it is a condition precedent to the making of the order of assessment<\/strong>. On facts, as the AO had issued the notice within the period of limitation, he had jurisdiction to reopen the assessment (R.K.Upadhyay vs. Patel<\/strong> 166 ITR 163 (SC) followed)<\/p>\n

Read more ›<\/a><\/div>\n

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