Delhi High Court
Cluster Overseas Private ... vs Income Tax Officer Ward 6(1) Delhi on 27 September, 2022
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4511/2022 and CM APPL. Nos. 13496-97/2022, 26039/2022
and 18486/2022
CLUSTER OVERSEAS PRIVATE LIMIITED..... Petitioner
Through : Mr. Mudit Bansal and Mr. Ramesh
Kumar Jain, Advocates.
versus
INCOME TAX OFFICER
WARD 6(1) DELHI ..... Respondent
Through : Mr. Sanjay Kumar, Senior Standing
Counsel for Revenue with Ms. Easha
Kadian, Advocate.
% Date of Decision: 27th September, 2022
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMEET PRITAM SINGH ARORA, J (ORAL):
CM APPL. 13497/2022
Exemption allowed, subject to all just exceptions.
Accordingly, this application is disposed of.
CM APPL. No. 26039/2022
The said application has been filed by the petitioner contending that
the Section 148 notice served through Speed Post and the notice available on
the ITBA Portal bear distinct Document Identification Numbers ('DIN'). It
is contended that upon verification it was found that the Section 148 notice
sent through speed post, which bears the DIN & Notice No:
ITBA/AST/S/148/2020-21/1032022972(1) does not exist on the ITBA
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:04.10.2022
19:32:06
Portal. It is stated that no record of the said DIN is available on the ITBA
portal and no explanation for this has been offered in the counter affidavit,
giving rise to the apprehension that it is not genuine.
It is stated that the Section 148 Notice available on the ITBA Portal
bears a distinct DIN & Notice No: ITBA/AST/S/148/2020-
21/1032075144(1).
The learned Senior Standing Counsel for the Respondent/
Department, has handed over a print out of e-mail dated 26th May, 2022,
addressed by the Assessing Officer ('AO') to the ITBA seeking a
clarification with respect to allotment of two distinct DINs to the Section
148 Notice issued to the Assessee and the reply e-mail dated 01st July, 2022,
issued by ITBA to the AO confirming generation of Section 148 Notice
bearing DIN ITBA/AST/S/148/2020-21/1032022972(1) and explaining
the circumstances in which the said DIN is not presently traceable in the
system. The contents of e-mail dated 01st July, 2022, reads as under:-
"Please refer to your below email on the subject cited above. In
this regard, I am directed to send the below facts of the case
referred by you, as reported by the technical team of ITBA, for
information and necessary further action at your end:-
"Notice generation u/s 148 is a bulk generation screen. As
analyzed, DIN: ITBA/AST/S/148/2020-21/ 1032022972(1)
matches with the series DIN generated in ITBA system. However,
due to technical issue in bulk generation process, the document
struck in intermittent state of processing due to which the bulk
generation process failed. The failure resulted in queue the
documents for generation in system. But since the document was
under processing, the view/Download screen has shown the status
of view document before roll back, and the user might have
downloaded the document from that link before process got rolled
back. The same document could have been manually signed and
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:04.10.2022
19:32:06
dispatched by user. Further, due to technical issues, the process of
document generation was retrigger and old document with DIN:
ITBA/AST/S/148/2020-21/1032022972(1) was neither saved in
ITBA system nor shared with e-filing.
After the process got rolled back, the system retriggered the
document generation for notice u/s 148 vide DIN:
ITBA/AST/S/148/2020-21/1032075144(1). As per system
validation, the new notice u/s 148, for PAN:AAACV3744K,
AY:2013-14, Document issued with DIN: ITBA/AST/S/148/2020-
21/1032075144(1) on 3/31/2021 5:11:51 PM. Further, same
shared with efiling and on email on 16-Apr-2022. (after expiration
of 15 days for signing).""
In view of the aforesaid explanation provided by ADIT, ITBA, in its
e-mail it is evident that the Section 148 notice sent to the petitioner by speed
post as well as the Section 148 notice available on the ITBA portal and sent
by email, though bearing distinct DINs are genuine. Pertinently, the contents
of the said notices are also identical. The print of the emails comprising of
seven (7) pages are taken on record.
Accordingly, no cause for initiating any action arises in the present
application and the same is disposed of.
W.P.(C) 4511/2022, CM APPLs. 13496/2022 (for stay) & 18486/2022
(for quashing assessment order)
1. Present writ petition has been filed challenging the validity and
legality of notices dated 31st March, 2021 issued under Section 148 of the
Income Tax Act, 1961 ('Act of 1961') for Assessment Year ('AY') 2013-14.
2. Learned counsel for the petitioner has stated that the impugned notice
dated 31st March 2021 with DIN & Notice No: ITBA/AST/S/148/2020-
21/1032075144(1) was issued after 31st March, 2021 vide email. The
petitioner received the said e-mail, with the manually signed impugned
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:04.10.2022
19:32:06
notice attached, on 30th June, 2021. The petitioner has also stated that an
unsigned copy of the impugned notice was also uploaded on the ITBA
portal.
3. It is further stated that another notice under Section 148 with a distinct
DIN & Notice No: ITBA/AST/S/148/2020-21/1032022972(1) dated 31st
March, 2021, for the same AY 2013-14 was sent vide speed post and
received at the registered address on 03rd April 2021. This notice was not
uploaded on the ITBA portal.
4. The primary contention of the petitioner is that the date of issuance of
the impugned notices should be considered for the purpose of determining
limitation and not the date of preparation or generation.
5. The petitioner has stated that the impugned notices were issued
without following the mandate of limitation prescribed under Section 149 of
the Act of 1961 as amended by the Finance Act, 2021. It was also argued
that the provisions of Section 282A(1) of the Act of 1961, which requires
that any notice or document to be issued under the Act has to be signed
mandatorily, was not followed for the impugned notice bearing DIN &
Notice No: ITBA/AST/S/148/2020-21/1032075144(1) dated 31st March
2021, as an unsigned copy of the notice was uploaded in the E-filing portal.
6. The Department in their counter affidavit, stated that, on 31st March,
2021 the ITBA portal was experiencing some technical issues and not
functioning properly, owing to which the AO was not able to affix his DSC.
AO thereafter signed the Notice bearing DIN & Notice No:
ITBA/AST/S/148/2020-21/1032022972(1) manually and sent it through
speed post on 31st March, 2021. The Department has placed the speed post
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:04.10.2022
19:32:06
booking receipt dated 31st March 2021 on record, which displays the
petitioner's name at serial no. 6.
7. The Department has further stated that there is no dispute that the
notice was generated on 31st March, 2021 as after generation of DIN, the
AO was not capable of taking it back at any future point of time and
therefore it is the contention of the Department that the notice was issued
when the DIN was generated by the AO.
8. The Department has also submitted that the Section 148 and 149 of
the Act of 1961 refers to 'issue' of notice and not the 'service' thereof. [R.K.
Upadhyaya v. Shanabhai P. Patel, (1987) 166 ITR 163 (SC); Mayawati v.
CIT (Central-1) & Ors. [(2010) 321 ITR 349 (Del)]. Further that, "to issue"
means to send out for service, therefore, it was contended by the Department
that any notice under Section 148 shall be construed as issued when it is
duly authored and approved by the assessing officer for the purpose of
sending the same to the concerned assessee. This process, as per the
Department, is concluded when the DIN is generated on the ITBA portal.
9. The petitioner found this counter affidavit filed by the ITO to be false
and misleading and the Application No. 26039 of 2022 under Section 340 of
Criminal Procedure Code, 1973, was filed before this court. The said
application has been disposed of vide this order. The issue of notices bearing
distinct DIN has been dealt with while disposing of the aforementioned
application.
10. We have heard the learned counsel for both the parties and perused
the paper book. This Court finds that there is a disputed question of fact,
while the petitioner has produced record indicating that the impugned notice
was sent for despatch through speed post on the 2nd of April, 2022, the
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:04.10.2022
19:32:06
Department has produced record wherein it is indicated that the notice was
sent for despatch through speed post on the 31st of March 2021 itself.
Therefore, the matter is disposed of with the direction to the Assessing
Officer to verify the records produced by both the parties and determine the
date of issuance on the basis of the law laid down in RK Upadhyay (supra).
If the AO upon verification finds that the notice under Section 148 was
handed over for to the postal office on 31st of March, 2021, for despatch
then the reassessment proceedings would be initiated under the old regime
of Section 148 proceedings, i.e., as it stood before the amendment of
Finance Act, 2021. Accordingly, the AO is directed to determine the
aforesaid date of despatch within four (04) weeks and if such date of
issuance is determined to be 31stMarch 2021, thereafter, complete the
reassessment proceedings within twelve (12) weeks as per the procedure as
its existed prior to amendment.
11. However, if upon verification, it is determined by the AO that the
impugned notice was handed over to the postal office on or after 1st of April,
2021, for despatch the said notice will be construed as notice under Section
148A(b) and the directions of the Honorable Supreme Court in the matter of
Union of India v. Ashish Aggarwal, [2022] 138 taxmann.com 64 (SC),
would apply mutatis mutandis.
12. Accordingly, the present petition along with the pending applications
is disposed of with the aforesaid directions.
MANMEET PRITAM SINGH ARORA, J
MANMOHAN, J
SEPTEMBER 27, 2022/msh/tb
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:04.10.2022
19:32:06
