Cluster Overseas Private Limiited v. Income Tax Officerward 6(1) Delhi

$~3 IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 4511/2022 and CM APPL. Nos. 13496-97/2022, 26039/2022and 18486/2022and 18486/2022 CLUSTER OVERSEAS PRIVATE LIMIITED..... PetitionerThrough :Mr. Mudit Bansal and Mr. RameshKumar Jain, Advocates. versus INCOME TAX OFFICERWARD 6(1) DELHI..... RespondentThrough :Mr. Sanjay Kumar, Senior StandingCounsel for Revenue with Ms. EashaKadian, Advocate. %Date of Decision: 27[th]September, 2022 CORAM:HON'BLE MR. JUSTICE MANMOHANHON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA J U D G M E N T 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 thatthe Section 148 notice served through Speed Post and the notice available onthe ITBA Portal bear distinct Document Identification Numbers (‘DIN’). Itis contended that upon verification it was found that the Section 148 noticesentthroughspeedpost,whichbearstheDIN&NoticeNo:ITBA/AST/S/148/2020-21/1032022972(1) does not exist on the ITBA W.P.(C) 4511/2022 Portal. It is stated that no record of the said DIN is available on the ITBAportal 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 PortalbearsadistinctDIN&NoticeNo:ITBA/AST/S/148/2020-21/1032075144(1). ThelearnedSeniorStandingCounselfortheRespondent/Department, has handed over a print out of e-mail dated 26[th]May, 2022,addressed by the Assessing Officer (‘AO’) to the ITBA seeking aclarification with respect to allotment of two distinct DINs to the Section148 Notice issued to the Assessee and the reply e-mail dated 01[st]July, 2022,issued by ITBA to the AO confirming generation of Section 148 Noticebearing DIN ITBA/AST/S/148/2020-21/1032022972(1) and explainingthe circumstances in which the said DIN is not presently traceable in thesystem. The contents of e-mail dated 01[st]July, 2022, reads as under:- “Please refer to your below email on the subject cited above. Inthis regard, I am directed to send the below facts of the casereferred by you, as reported by the technical team of ITBA, forinformation and necessary further action at your end:- "Notice generation u/s 148 is a bulk generation screen. Asanalyzed,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 documentstruck in intermittent state of processing due to which the bulkgeneration process failed. The failure resulted in queue thedocuments for generation in system. But since the document wasunder processing, the view/Download screen has shown the statusof view document before roll back, and the user might havedownloaded the document from that link before process got rolledback. The same document could have been manually signed and dispatched by user. Further, due to technical issues, the process ofdocument generation was retrigger and old document with DIN:ITBA/AST/S/148/2020-21/1032022972(1) was neither saved inITBA system nor shared with e-filing. After the process got rolled back, the system retriggered thedocumentgenerationfornoticeu/s148videDIN:ITBA/AST/S/148/2020-21/1032075144(1).Aspersystemvalidation, the new notice u/s 148, for PAN: ,AY:2013-14, Document issued with DIN: ITBA/AST/S/148/2020-21/1032075144(1) on 3/31/2021 5:11:51 PM. Further, sameshared with efiling and on email on 16-Apr-2022. (after expirationof 15 days for signing)."” dispatched by user. Further, due to technical issues, the process ofdocument generation was retrigger and old document with DIN:ITBA/AST/S/148/2020-21/1032022972(1) was neither saved inITBA system nor shared with e-filing. After the process got rolled back, the system retriggered thedocumentgenerationfornoticeu/s148videDIN:ITBA/AST/S/148/2020-21/1032075144(1).Aspersystemvalidation, the new notice u/s 148, for PAN: ,AY:2013-14, Document issued with DIN: ITBA/AST/S/148/2020-21/1032075144(1) on 3/31/2021 5:11:51 PM. Further, sameshared with efiling and on email on 16-Apr-2022. (after expirationof 15 days for signing)."” In view of the aforesaid explanation provided by ADIT, ITBA, in itse-mail it is evident that the Section 148 notice sent to the petitioner by speedpost as well as the Section 148 notice available on the ITBA portal and sentby email, though bearing distinct DINs are genuine. Pertinently, the contentsof the said notices are also identical. The print of the emails comprising ofseven (7) pages are taken on record. Accordingly, no cause for initiating any action arises in the presentapplication 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 andlegality of notices dated 31[st]March, 2021 issued under Section 148 of theIncome Tax Act, 1961 (‘Act of 1961’) for Assessment Year (‘AY’) 2013-14.2.Learned counsel for the petitioner has stated that the impugned noticedated 31[st]March 2021 with DIN & Notice No: ITBA/AST/S/148/2020-21/1032075144(1) was issued after 31[st]March, 2021 vide email. Thepetitioner received the said e-mail, with the manually signed impugned W.P.(C) 4511/2022 notice attached, on 30[th]June, 2021. The petitioner has also stated that anunsigned copy of the impugned notice was also uploaded on the ITBAportal. 3.It is further stated that another notice under Section 148 with a distinctDIN & Notice No: ITBA/AST/S/148/2020-21/1032022972(1) dated 31[st]March, 2021, for the same AY 2013-14 was sent vide speed post andreceived at the registered address on 03[rd]April 2021. This notice was notuploaded on the ITBA portal. 4.The primary contention of the petitioner is that the date of issuance ofthe impugned notices should be considered for the purpose of determininglimitation and not the date of preparation or generation. 5.The petitioner has stated that the impugned notices were issuedwithout following the mandate of limitation prescribed under Section 149 ofthe Act of 1961 as amended by the Finance Act, 2021. It was also arguedthat the provisions of Section 282A(1) of the Act of 1961, which requiresthat any notice or document to be issued under the Act has to be signedmandatorily, was not followed for the impugned notice bearing DIN &Notice No: ITBA/AST/S/148/2020-21/1032075144(1) dated 31[st]March2021, 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 notfunctioning properly, owing to which the AO was not able to affix his DSC.AOthereaftersignedtheNoticebearingDIN&NoticeNo:ITBA/AST/S/148/2020-21/1032022972(1) manually and sent it throughspeed post on 31[st]March, 2021. The Department has placed the speed post booking receipt dated 31[st]March 2021 on record, which displays thepetitioner’s name at serial no. 6. 7.The Department has further stated that there is no dispute that thenotice was generated on 31[st]March, 2021 as after generation of DIN, theAO was not capable of taking it back at any future point of time andtherefore it is the contention of the Department that the notice was issuedwhen the DIN was generated by the AO. booking receipt dated 31[st]March 2021 on record, which displays thepetitioner’s name at serial no. 6. 7.The Department has further stated that there is no dispute that thenotice was generated on 31[st]March, 2021 as after generation of DIN, theAO was not capable of taking it back at any future point of time andtherefore it is the contention of the Department that the notice was issuedwhen the DIN was generated by the AO. 8.The Department has also submitted that the Section 148 and 149 ofthe 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 Departmentthat any notice under Section 148 shall be construed as issued when it isduly authored and approved by the assessing officer for the purpose ofsending the same to the concerned assessee. This process, as per theDepartment, is concluded when the DIN is generated on the ITBA portal. 9.The petitioner found this counter affidavit filed by the ITO to be falseand misleading and the Application No. 26039 of 2022 under Section 340 ofCriminal Procedure Code, 1973, was filed before this court. The saidapplication has been disposed of vide this order. The issue of notices bearingdistinct DIN has been dealt with while disposing of the aforementionedapplication. 10.We have heard the learned counsel for both the parties and perusedthe paper book. This Court finds that there is a disputed question of fact,while the petitioner has produced record indicating that the impugned noticewas sent for despatch through speed post on the 2[nd]of April, 2022, the Department has produced record wherein it is indicated that the notice wassent for despatch through speed post on the 31[st]of March 2021 itself.Therefore, the matter is disposed of with the direction to the AssessingOfficer to verify the records produced by both the parties and determine thedate 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 washanded over for to the postal office on 31[st]of March, 2021, for despatchthen the reassessment proceedings would be initiated under the old regimeof Section 148 proceedings, i.e., as it stood before the amendment ofFinance Act, 2021. Accordingly, the AO is directed to determine theaforesaid date of despatch within four (04) weeks and if such date ofissuance is determined to be 31[st]March 2021, thereafter, complete thereassessment proceedings within twelve (12) weeks as per the procedure asits existed prior to amendment. 11.However, if upon verification, it is determined by the AO that theimpugned notice was handed over to the postal office on or after 1[st]of April,2021, for despatch the said notice will be construed as notice under Section148A(b) and the directions of the Honorable Supreme Court in the matter ofUnion of India v. Ashish Aggarwal, [2022] 138 taxmann.com 64 (SC),would apply mutatis mutandis. 12.Accordingly, the present petition along with the pending applicationsis disposed of with the aforesaid directions. MANMEET PRITAM SINGH ARORA, J SEPTEMBER 27, 2022/msh/tb MANMOHAN, J