Notice: Signing v. Issue of : Limitation: Section 148 and section 149 of Income-tax Act, 1961: A.Y. 2003-04 : Notice u/s.148 signed on 31-3-2010 but sent to the speed-post centre on 7-4-2010: Notice issued on 7-4-2010 i.e., beyond period of limitation of

[Kanubhai M. Patel (HUF) v. Hiren Bhat, 237 CTR 544 (Guj.)]

For the A.Y. 2003-2004, the Assessing Officer signed the
notice u/s.148 on 31-3-2010, but the notice was sent to the speed-post centre
for booking on 7-4-2010. The assessee filed a writ petition and challenged the
validity of the notice on the ground of the period of limitation.

The Gujarat High Court allowed the writ petition and held as
under :

“(i) The expression ‘to issue’ in the context of issuance
of notices, writs and processes, has been attributed the meaning, to send out;
to place in the hands of the proper officer for service. The expression ‘shall
be issued’ as used in section 149 would therefore have to be read in the
aforesaid context.

(ii) In the present case, the impugned notices have been
signed on 31-3-2010, whereas the same were sent to the speed-post centre for
booking only on 7-4-2010. Considering the definition of the word ‘issue’, it
is apparent that merely signing the notice on 31-3-2010, cannot be equated
with issuance of notice as contemplated u/s.149.

(iii) The date of issue would be the date on which the same
were handed over for service to the proper officer, which in the facts of the
present case would be the date on which the said notices were actually handed
over to the post office for the purpose of booking for the purpose of
effecting service on the petitioners. Till the point of time the envelops were
properly stamped with adequate value of postal stamps, it cannot be stated
that the process of issue is complete.

(iv) In the facts of the present case, the impugned notices
having been sent for booking to the speed-post centre only on 7-4-2010, the
date of issue of the said notices would be 7-4-2010 and not 31-3-2010, as
contended on behalf of the Revenue.

(v) In the circumstances, the impugned notices u/s.148 in
relation to A.Y. 2003-2004, having been issued on 7-4-2010, which is clearly
beyond the period of six years from the end of the relevant assessment year,
are clearly barred by limitation and as such, cannot be sustained.”