The above judgement is passed by Hon’ble Bombay High Court in the case of Daujee Abhushan Bhandar Pvt. Ltd. V. Union of India and 2 Others vide WRIT TAX No. – 78 of 2022
Facts of the case:
Assessee filed its return of Income under Section 139 (1) of the Income Tax Act, 1961 (hereinafter referred to as “the Act 1961”) on 29.09.2013 for the Assessment Year 2013-14 and the assessment was completed.
Subsequently, the Assessing Authority attempted to initiate proceedings under Section 148 of the Act, 1961. For this purpose, a notice under Section 148 of the Act, 1961 for the Assessment Year 2013-14 was digitally signed by the Assessing Authority on 31.3.2021. It was sent to the assesses through e-mail and e-mail was undisputedly received by the petitioner on his registered e-mail ID on 06.04.2021. The limitation for issuing notice under Section 148 read with Section 149 of the Act, 1961 was upto 31.03.2021 for the Assessment Year 2013-14.
As the notice was served on assessee through e-mail on 06.04.2021, hence the notice is time barred and without jurisdiction and the limitation for issuing notice u/s 148 read with section 149 of the Act has expired on 31.03.2021.
In support of the contention assessee relied on a judgment of Gujrat High Court in Kanubhai M. Patel (HUF) v. Hiren Bhatt or His Successors to Office (2011) 12 taxmann.com 198 (Guj.) ( paras 15, 15.1 & 16) and the judgment of this court dated 28.08.2017 in Writ Tax No. 822 of 2016 (Smt. Kusum Agarwal Vs. Asst. Commissioner of Income Tax, Agra and Another).
Learned counsel for the Income Tax Department submits that issue of notice means, the date on which the notice is digitally signed by the Assessing Authority.
In support of his submissions Sri Gaurav Mahajan, has relied upon a judgment of Hon’ble Supreme Court in the case of R.K. Upadhyaya v. Shanabhai P. Patel (1987) 166 ITR 163.
Sub Section (1) of Section 149 starts with a prohibitory words that “no notice under Section 148 shall be issued for the relevant Assessment Year after expiry of the period as provided in sub Clauses (a) (b) and (c)”.
There is no dispute that the notice must be issued by the Assessing Authority within the period of limitation as provided in Section 149 of the Act, 1961. Section 282 of the Act, 1961 provides for mode of service of notices. Section 282 A provides for authentication of notices and other documents by signing it. Sub- Section 1 of Section 282 A uses the word “ “Signed” and “issued in paper form” “ or “communicated in electronic form by that authority in accordance with such procedure as may be prescribed”. Thus, signing of notice and issuance or communication thereof have been recognised as different acts.
Rule 127A(1) of the Rules 1962 provides that every notice or other document communicated in electronic form by an authority under the Act shall be deemed to be authenticated in case of electronic mail or electronic mail message (e-mail) if the name and office of such income tax authority is printed on the e-mail body, if the notice or other document is in the e-mail body itself, or is printed on the attachment to the e-mail, if the notice or other document is or other document is in the attachment and the e-mail, is issued from the designated e-mail address of such income tax authority. Thus, the issuance of notice and other document would take place when the e-mail is issued from the designated e-mail address of the concerned income tax authority.
Since Section 149 of the Act 1961 requires notice to be issued by Income Tax Authority, therefore, in terms of sub-Section (1) of Section 282 A it has to be signed by that authority and to be issued in paper form or communicated in electronic form by that authority in accordance with procedure prescribed.
The communication in electronic form has been prescribed in Rule 127 A of the Rules 1962 which provides a procedure for issuance of every notice or other document and the e-mail in electronic form/electronic mail which has to be issued from the designated e-mail address of such income tax authority.
Thus, after digitally signing the notice the income tax authority has to issue it to the assessee either in paper form or through electronic mail. Sub-Section (1) of Section 13 of the Act 2000 provides that dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator. The aforesaid sub Section (1) of Section 13 indicates the point of time of issuance of notice. Therefore, after a notice is digitally signed and when it is entered by the income tax authority in computer resource outside his control i.e. the control of the originator then that point of time would be the time of issuance of notice.
Thus, considering the provisions of Section 282 and 282A of the Income Tax Act, 1961 and the provisions of Section 13 of the Information Technology Act, 2000 and meaning of the word “issue” we find that firstly notice shall be signed by the assessing authority and then it has to be issued either in paper form or be communicated in electronic form by delivering or transmitting the copy thereof to the person therein named by modes provided in section 282 which includes transmitting in the form of electronic record. Section 13(1) of the Act, 2000 provides that unless otherwise agreed, the dispatch of an electronic record occurs when it enters into computer resources outside the control of the originator. Thus, the point of time when a digitally signed notice in the form of electronic record is entered in computer resources outside the control of the originator i.e. the assessing authority that shall the date and time of issuance of notice under section 148 read with Section 149 of the Act, 1961.
In view of the discussion made above, we hold that mere digitally signing the notice is not the issuance of notice. Since the impugned notice under Section 148 of the Act, 1961 was issued to the petitioner on 06.04.2021 through e-mail, therefore, we hold that the impugned notice under section 148 of the Act, 1961 is time barred. Consequently, the impugned notice is quashed.
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