Delhi H.C : Whether the actual service of a notice under s. 143(2) of the IT Act, 1961 as it stood before amendment, after the date prescribed in the said provision would relate back to the date of issue of the notice ?

High Court Of Delhi

CIT vs. Bhan Textiles (P) Ltd.

Section 143(2)

Vikramajit Sen & Dr. S. Muralidhar, JJ.

IT Appeal No. 1088 of 2005

28th September, 2006

Counsel Appeared

Ms. Prem Lata Bansal, for the Appellant : K.R. Manjani, for the Respondent

ORDER

By the court :

This appeal was admitted on the following substantial question of law :

“Whether the actual service of a notice under s. 143(2) of the IT Act, 1961 as it stood before amendment, after the date prescribed in the said provision would relate back to the date of issue of the notice ?”

So far as the factual matrix of the case is concerned, the Revenue is in a worse position than that which obtained in CIT vs. Lunar Diamonds Ltd. (2005) 197 CTR (Del) 312 : (2006) 281 ITR 1 (Del). Ms. Prem Lata Bansal, learned counsel appearing on behalf of the appellant, seeks to point out that there was some doubt in CIT vs. Lunar Diamonds Ltd. (supra) whether the notices had at all been sent or not. In the present case, however, it is the admitted case that the notice under s. 143(2) of the IT Act though issued on 27th Nov., 1997, and dispatched on 28th Nov., 1997, was actually received by the assessee only on 1st Dec., 1997. The assessee had filed the return on 20th Nov., 1996, and, therefore, the time stipulated under the proviso to s. 143(2)(ii) for service of notice expired on 30th Nov., 1997. The said proviso leaves no room for debate that the notice must be served on the assessee. In CIT vs. Lunar Diamonds Ltd. (supra) the Division Bench had rejected the contention that the words ‘served’ and ‘issued’ are synonymous and are interchangeable. The Bench did not have the benefit of the decision of the Hon’ble Supreme Court in R.K. Upadhyaya vs. Shanabhai P. Patel (1987) 62 CTR (SC) 17 : (1987) 166 ITR 163 (SC), which in fact strengthens and fortifies the position that there is a clear distinction between ‘issuance of notice’ and ‘service of notice’. Ms. Bansal’s reliance on Tea Consultancy & Plantation Services (India) (P) Ltd. vs. Union of India & Ors. (2005) 194 CTR (Del) 481 : (2005) 278 ITR 356 (Del) is of no avail since the word that had to be construed by the Division Bench in that case was “made” and not “issued” or “served”. We see no reason to adopt an approach different to the one adopted by us in CIT vs. Vardhman Estate (P) Ltd. (IT Appeal No. 1248 of 2006) decided by us on 25th Sept., 2006 [reported at (2007) 208 CTR (Del) 251—Ed.].

The question framed in this appeal is answered in the negative. The appeal is accordingly dismissed.

[Citation : 287 ITR 370]

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