In a ruling by the Division Bench of the Delhi High Court, it was held that, the Generation of Notice by the Jurisdictional Assessing Officer (JAO) without dispatch fails to meet the expression “shall be issued” u/s 149, leaving it to be time-barred.
The validity of the issuance of a notice served by the Jurisdictional Assessing Officer(JAO) was tested by the court, with regard to the dispatch of the notice. The JAO generated a notice on 31st March 2021. The Income Tax Business Application(ITBA) servers dispatched the notice on 1st April 2021, or thereafter.
The Department contended that, since each of the impugned Notices bears a DIN, its generation as of 31st March, 2021, is beyond doubt. It is further contended that since, on the ITBA portal, after generation of Notice the JAO is left with no power to amend, alter, cancel, or ante-date the Notice, the said act of generation conclusively establishes that the Notice has been issued.
The petitioners as noted above have opposed this contention of the Department as being contrary to settled law interpreting the expression ‘issued’, ‘shall be issued’, and the dictionary meaning of the phrase ‘issue’. It is contended that under the Act of 1961, a Notice is held to be ‘issued’ on the date of its due despatch and not on the date the notice is drawn up.
The Delhi High Court bench headed by Justice Manmohan relied on the ruling in Kanubhai M. Patel (HUF) v. Hiren Bhatt, (2011) 334 ITR 25 (Guj), in which The Gujarat High Court categorically held that it is on the date of despatch of Section 148 notice that the same will be held to be issued for the purpose of Section 149 of the Act of 1961 and reiterated that, The mere generation of a notice on the ITBA Screen and signing the same is not sufficient for satisfying the test of ‘issued’ and it is only when the Notice has been despatched in terms of Section 13 the Act of 2000, would the same be declared to be issued. The High Court also relied on the judgment of the Supreme Court in UOI vs. G.S. Chatha Rice Mills, (2021) 2 SCC 209, wherein the Supreme Court held that a notification would be in effect from the time and date on which it was uploaded on the e-gazette and not the date mentioned in the notification.
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