{"id":4389,"date":"2012-02-29T10:53:11","date_gmt":"2012-02-29T10:53:11","guid":{"rendered":"http:\/\/itatonline.org\/archives\/?p=4389"},"modified":"2012-02-29T10:54:44","modified_gmt":"2012-02-29T10:54:44","slug":"v-r-a-cotton-mills-p-ltd-vs-uoi-ph-high-court-s-1432-issue-of-notice-is-equivalent-to-its-service","status":"publish","type":"post","link":"https:\/\/itatonline.org\/archives\/v-r-a-cotton-mills-p-ltd-vs-uoi-ph-high-court-s-1432-issue-of-notice-is-equivalent-to-its-service\/","title":{"rendered":"V.R.A. Cotton Mills (P) Ltd vs. UOI (P&H High Court)"},"content":{"rendered":"\n\n
Click here to download the judgement (VRA_143_2_notice_issue_service.pdf) <\/strong> <\/a><\/p><\/td>\n<\/tr>\n<\/table>\n


\nS. 143(2): \u201cIssue\u201d of notice is equivalent to its \u201cservice\u201d
\n<\/strong><\/p>\n

In respect of AY 2009-10, the assessee filed a ROI on 29.09.2009. The last date for service of the s. 143(2) notice was 30.09.2010. A notice u\/s 143 (2) was served by affixation at 11.20 pm on 30.09.2010<\/em>. The assessee filed a Writ Petition claiming that u\/s 282 (1), a notice or requisition had to be served either by post or as if it was a summons issued by a Court under the CPC and that service by affixture was invalid. The assessee relied on CIT vs. AVI-OIL India<\/strong> 323 ITR 242 (P&H) where it was held that a notice u\/s 143(2) had not only to be issued, but had to be served before the expiry of 12 months<\/em> (now 6M) from the end of the month in which the return was furnished. Hotel Blue Moon<\/a><\/strong> 321 ITR 362 (SC) was relied upon to contend that in the absence of a s. 143(2) notice, the assessment was invalid. HELD dismissing the Petition:<\/p>\n

S. 143(2) (ii) provides that no notice shall be \u201cserved\u201d on the assessee after the expiry of six months. The question is that what is the meaning of expression \u2018served\u2019? Is it used literally, so as to mean actual physical receipt of notice by the addressee or the expression \u2018served\u2019 is inter changeable with the word issue. We are of the opinion that the expressions \u2018serve\u2019 and \u2018issue\u2019 are interchangeable<\/strong>. In view of the law laid down in several judgments, the date of receipt of notice by the addressee is not relevant to determine, as to whether the notice has been issued within the prescribed period of limitation. The expression \u201cserve\u201d means the date of issue of notice<\/strong>. The date of receipt of notice cannot be left to be undetermined dependent upon the will<\/strong> of the addressee. Therefore, to bring certainly and to avoid attempts of the addressee to evade the process of receipt of notice<\/strong>, the purpose of the statute will be better served, if the date of issue of notice is considered as compliance of the requirement of proviso to s. 143(2) of the Act. In fact that is the only conclusion that can be arrived at to the expression \u2018serve\u201d in s. 143(2). In AVI-OIL India<\/strong> 323 ITR 242 (P&H), a literal meaning of the term \u201cservice\u201d was taken in ignorance of the binding precedents. It does not lay down any binding principle and is per incuriam<\/em><\/strong>.<\/p><\/blockquote>\n

\n Contrast with R. K. Upadhyaya vs. Patel<\/strong> 166 ITR 163 (SC) where it was held in the context of s. 148 that there is a “clear distinction<\/em>” between “issue” & “service” of a notice\n<\/div>\n

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

S. 143(2) (ii) provides that no notice shall be \u201cserved\u201d on the assessee after the expiry of six months. The question is that what is the meaning of expression \u2018served\u2019? Is it used literally, so as to mean actual physical receipt of notice by the addressee or the expression \u2018served\u2019 is inter changeable with the word issue. We are of the opinion that the expressions \u2018serve\u2019 and \u2018issue\u2019 are interchangeable<\/strong>. In view of the law laid down in several judgments, the date of receipt of notice by the addressee is not relevant to determine, as to whether the notice has been issued within the prescribed period of limitation. The expression \u201cserve\u201d means the date of issue of notice<\/strong>. The date of receipt of notice cannot be left to be undetermined dependent upon the will<\/strong> of the addressee. Therefore, to bring certainly and to avoid attempts of the addressee to evade the process of receipt of notice<\/strong>, the purpose of the statute will be better served, if the date of issue of notice is considered as compliance of the requirement of proviso to s. 143(2) of the Act. In fact that is the only conclusion that can be arrived at to the expression \u2018serve\u201d in s. 143(2). In AVI-OIL India<\/strong> 323 ITR 242 (P&H), a literal meaning of the term \u201cservice\u201d was taken in ignorance of the binding precedents. It does not lay down any binding principle and is per incuriam<\/em><\/strong><\/p>\n

Read more ›<\/a><\/div>\n

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