Gujarat High Court
Rajesh Sunderdas Vaswani vs C P Meena - Deputy Commissioner Of Income ... on 13 June, 2016
Author: Akil Kureshi
Bench: Akil Kureshi, A.J. Shastri
C/SCA/2548/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2548 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2549 of 2016
With
SPECIAL CIVIL APPLICATION NO. 2550 of 2016
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RAJESH SUNDERDAS VASWANI....Petitioner(s)
Versus
C P MEENA - DEPUTY COMMISSIONER OF INCOME TAX &
5....Respondent(s)
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Appearance:
MR RK PATEL, ADVOCATE for the Petitioner(s) No. 1
MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 4
MR NIKUNT K RAVAL, ADVOCATE for the Respondent(s) No. 4 - 6
MRS MAUNA M BHATT, ADVOCATE for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 13/06/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These three petitions arise in common background. They have been heard together and are being disposed of by this common judgement. Facts may be noted from Special Civil Application No.2548/2016.
2. The petitioner is an assessee as an individual. For the assessment year 20082009, the petitioner had filed the return of income on 20.3.2009. The return was accepted Page 1 of 13 HC-NIC Page 1 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER under section 143(1) of the Income Tax Act, 1961("the Act"
for short) without scrutiny. To reopen such assessment, the Assessing Officer issued notice dated 30.3.2015. He supplied the reasons recorded by him which interalia referred to the proceedings under section 132 of the Act carried out in cases of Venus group of Ahmedabad on 10.3.2015 at the main office and residential premises during which incriminating materials and documents were found. On the basis of seized materials from the premises at 901, Saphire complex, from the abbreviations used, it was found that the transactions concerning the petitioner were recorded. The reasons also referred to the data seized from the harddisk from the computers at the site linking certain transactions to the petitioner.
3. The petitioner objected to the process of reopening under communication dated 20.4.2015 which objections were disposed of by the Assessing Officer on 27.5.2015. Even thereafter, the petitioner had raised further objections. Eventually when the petitioner failed to convince the department, present petitions came to be filed which is pressed on two grounds. First that the notice under section 148 of the Act was issued beyond six years from the end of relevant assessment year and therefore, barred by limitation as provided in section 149 of the Act. Second ground was that the Assessing Officer had not recorded his reasons before issuance of the notice, clearly demonstrating a legal error.
4. Elaborating the first ground, counsel for the petitioners submitted that though the notice is dated 30.3.2015, the Page 2 of 13 HC-NIC Page 2 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER same was not booked for delivery with the postal department before 1.4.2015. He drew our attention to the postal endorsement which would show that the notice was booked for delivery only on 1.4.2015. Counsel also referred to other documents on record, to which reference would be made at a later stage, to contend that the stand of the department that the cover containing the notice was delivered to the postal department on 31.3.2015 is a false theory created only in order to overcome the question of proceedings being hit by limitation.
5. Regarding the second contention, counsel submitted that there is nothing on record to suggest that the Assessing Officer had recorded reasons before issuance of notice. The petitioners' specific averments in this respect in the petition have met with evasive reply. This coupled with the fact that the reasons are undated would lead to an inference that the same were recorded after issuance of notice contrary to what is suggested by the department.
6. On the other hand, learned counsel Shri Manish Bhatt for the department took us through the materials on record produced by the department to contend that the notice was in fact, handed over to the postal authority for delivery on 31.3.2015 itself. It was on account of overload in the postal department that the same was booked on 1.4.2015. The department is availing the postal department's "book now pay later" scheme. The question of affixing sufficient stamp on such post would therefore, not arise. In any case, this is a highly disputed question of fact, cannot and should not be examined in a writ petition that too at a stage where the Page 3 of 13 HC-NIC Page 3 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER department has merely issued the notice for reopening.
7. Regarding the recording of reasons, counsel submitted that in addition to the affidavit of the department, original files and contemporaneous record would show that reasons were recorded before issuance of notice. Same were placed before the higher authority for approval. Only after approval of the Principal Commissioner, notice was issued.
8. Having heard learned counsel for the parties and having perused the documents on record, regarding the first issue, we may notice that the Division Bench of this Court in the context of issuance of notice for reopening in case of Kanubhai M. Patel (HUF) v. Hiren Bhatt or his successors to office and others reported in (2011) 334 ITR 25(Guj) held and observed as under :
"16. Thus, the expression to issue in the context of issuance of notices, writs and process, 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. In the present case, the impugned notices have been signed on 31.03.2010, whereas the same were sent to the speed post centre for booking only on 07.04.2010. Considering the definition of the word issue, it is apparent that merely signing the notices on 31.03.2010, cannot be equated with issuance of notice as contemplated under section 149 of the Act. 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 Page 4 of 13 HC-NIC Page 4 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER the point of time the envelopes are properly stamped with adequate value of postal stamps, it cannot be stated that the process of issue is complete. In the facts of the present case, the impugned notices having been sent for booking to the Speed Post Centre only on 07.04.2010, the date of issue of the said notices would be 07.04.2010 and not 31.03.2010, as contended on behalf of the revenue. In the circumstances, impugned the notices under section 148 in relation to assessment year 200304, having been issued on 07.04.2010 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."
9. Thus the expression "to issue" used in the context of notice referred to in section 149 of the Act, it was interpreted that the date of issue of notice would be the date on which the the same was handed over for service to the proper officer i.e. in the present case the postal department. Since the incometax department is covered by "book now pay later"
scheme, the further observation of requirement of properly stamping envelope with adequate postal stamp, would not be germane.
10. In this context, the crucial question would be, was the envelope containing the notice for reopening addressed to the petitioner, handed over to the postal department for delivery on 31.3.2015 as averred by the petitioner or as strongly contended by the petitioner, this happened only on 1.4.2015? In this context, the petitioner points out that the postal department had booked the post only on 1.4.2015. The certificate issued by the Head Sorting Assistant, Shri C.I. Limbola on 15.5.2015 was later on retracted. Said Shri Limbola was not even on duty on the Page 5 of 13 HC-NIC Page 5 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER said date and therefore, could not have issued any such certificate. On the other hand, we find that on behalf of the department in the affidavit in reply dated 12.3.2016 filed by Shri ChandraPrakash Meena, it has been stated as under :
"In this connection, it is to state that there is a general practice of the Postal Department that a Post Man picks up the speed post articles between 04.0005.00 PM daily from the Aayakar Bhawan, IncomeTax Cross Roads, Ahmedabad and deposits the same to the Postal Department at his convenience. Thereafter, i.e. after 04.00 / 05.00 PM, if there would be any speed post or other articles to be despatched on urgent basis, the same are being done by the staff of this Department.
In the instant case also, on verification of the records, it emerges that the Respondent has issued notice under section 148 of the Act dated 30.03.2015 in the name of the assessee and also handed over to the Postal Authority (Pickup manShri N.A. Parmar, GR.D(MTS) on 31.03.2015 as usual, along with other speed post articles pertaining to the Respondent's office. The said has been recorded in the outward register of the office for dtd. 31.03.2015 and the pickup manShri N. A. Parmar has also signed acknowledging receipt of the 24 articles for 31.03.2015. A copy of the outward register is annexed hereto and marked as AnnexureB. Furthermore, perusal of the outward register reveals that on 31.03.2015, further articles from Sr.No.25 to 39 have also been despatched on the same date i.e. 31.03.2015. On careful examination of the same, it is seen that the same have been despatched by the staff of the Department The same is confirmed from the receipt of the postal department affixed after the noting of the address at Sr.No.25. The said receipt shows the time of booking at 19.01 on 31.03.2015 and this article is in the continuation Page 6 of 13 HC-NIC Page 6 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER of the list of articles mentioned in the outward register. Thus, from the above observation, it is confirmed that envelope containing the impugned notice has been handed over/despatched to the postal department (pick up) on 31.03.2015 itself as it is evident from the outward register, as per the arrangement made by the Department with the regular post man visits for delivering the daks pertaining to the Department, etc. Notwithstanding the above, if it is considered that the same has not been handed over to the pickup man on 31.03.2015, then how the initial of the said person puts on 31.03.2015 receiving the daks on 31.03.2015. This arrangement Of pickup man receiving the dak and putting his initial at the end of the noting of the articles is also confirmed by the noting of articles made on 30.03.2015 where the pickup man has put his initial receiving the articles. The said initial is matched with the initial made on 31.03.2015. Further, the service of the impugned notice to the postal department through the pickup man on 31.3.2015 is also confirmed that the same has been delivered along with other 23 articles and the same is in continuation of further speed post articles bearing Sr.No.25 to 39 on the same date which were booked directly by the staff of this office and proof of the same has been affixed on the outward register itself on the date of 31.03.2015. Here, it is pertinent to mention that the Sr.No. of the envelope containing the impugned notice is No.3 and thereafter, there were other speed post articles from 4 to 24 handed over to the pickup man and other speed post articles from 25 to 39 booked through the staff of this office. Thus, if there was any malafide intention, then, there would not be any further speed post articles, other than the impugned notice on 31.03.2015 and there would be another date. However, it is not so and it is evident from the outward register that the impugned notice noted at Sr.No.3 on 31.03.2015 has been handed over along with other articles mentioned at Sr.No 4 to 24 to the pickup man of the postal authority on 31.03.2015 itself and the same is confirmed from the fact that on the same Page 7 of 13 HC-NIC Page 7 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER date, further articles from Sr.No.25 to 39 have also been booked i.e. 31.03.2015 for which necessary receipt issued by the postal authority is affixed in the outward register on the same date i.e. 31.03.2015.
However, the postal department has informed on query that due to completion of financial year and heavy receipt of other work, the said speed post articles were booked on the next date i.e. 01.04.2015. There is delay on the part of the Postal Authority. The Department cannot be made responsible for such kind of act by other authority. The Department is relying upon its outward register. As per this outward register, it is revealed that it is the Department who had issued the notice u/s. 148 of the Act dated 30.03.2015 and handed over to the Postal Authority on 31.03.2015 who in turn, had transferred and booked the article (containing impugned notice u/s.l48) on 01.04.2015 for which it cannot be said that the notice u/s. 148 of the Act is not issued within the time limit. The process of issue of notice, i.e. signing of notice on 30.03.2015 and handing over the same to the pickup man of the Postal Authority on 31.3.2015, as discussed above clearly establishes that the notice has been issued within the time limit. The Tax Assistant who had noted the daks in the outward register and handed over to the pickup man of the postal department has also confirmed these facts in an affidavit which is annexed hereto and marked as AnnexureC."
11. In addition to such averments made in the affidavit in reply, the respondents also relied on various documents which included an affidavit dated 2.3.2016 filed by one Vasant Amrutlal Modi, Tax Assistant, in which he has stated as under :
"1. that I had been posted in the office of the DCITCC1 (l), Page 8 of 13 HC-NIC Page 8 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER Ahmedabad till July, 2015. l was Working as Tax Assistant and work allotted to me was handling of outward and inward registers in Tapal in addition to other work allotted by the Officer.
2. A pickup man of the Postal Department comes daily in the evening around 4 'O' clock to collect dak/ speed post on daily basis since many years. The acknowledgment slips of these daks are handed over on the next working day or the subsequent working days by the person of the Postal Department. This practice is being followed since last many years.
3. On 31.03.2015, dak bearing No. l to 24 as per outward Register were handed over to Shri N.A. Parmar, the pickup man/person authorized by the Postal Department who regularly comes to Aayakar Bhavan, Ahmedabad to collect Tapal which is the usual practice followed by the offices located in Aayakar Bhavan.
4 The receipts of these 24 dak handed over to the pickup man has been duly acknowledged by him by putting his signature/initial on the outward register on 31st March, 20l5 itself. This practice of collecting daks and by putting signature in outward register (copy enclosed of 31st March, 2015) has been followed by the postal pickup man since last many years."
12. The documents also include a letter from the Assistant Postmaster General to the Chief Postmaster General in which he had conveyed as under :
"With reference to above, visited BNPL Center at National Sorting Hub, Shahibaug and inquired the matter in detail. In this regard written statement of Shri. N A Parmar, (MTS earlier Gr. D) Pick up man who is entrusted the job to pick Page 9 of 13 HC-NIC Page 9 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER up the articles for booking under BNPL from the premises of INCOME TAX Department, was obtained me in the presence of two Witnesses.
As per his written statement Shri. N A Parmar has stated that he has picked 24 articles from the premises of Income Tax Department on dated 31.03.2015 and he has confirmed his signature availabie in outward register of IT Department in token of of articles.
Further he has stated that IT Department has has established system to hand over such articles with accuracy having duly counted and tallied with nme and addresses of the recepient as noted in outward register . And therefore he used to take over all such articles by counting and cross tallying with name and addresses of recipient according to outward register. Visited office of Joint Commissioner Income Tax along with Shri N.A. Parmar and on being exhibited outward register to him, Shri N.A. Parmar has confirmed his signatures put by him on various pages for all the dates including dated 31.03.2015. Shri Parmar has stated that he had handed over all these picked up articles to In charge of BNPL Centre on 31.03.2015.
In view of above, it is clear that the 24 article meant for booking on 31.03.2015 in BNPL by IT Department were picked on 31.03.2015 by Shri N.A. Parmar Pick up man BNPL and handed over to concern BNPL incharge on the same day i.e. 31.03.2015"
A copy of letter written by Shri Parmar dated 3.3.2016 is also enclosed.
13. The above materials would establish that the question is a highly disputed question of fact. There is prima facie materials produced by the department to demonstrate that the envelope was in fact, handed over to Page 10 of 13 HC-NIC Page 10 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER the postal authorities on 31.3.2015 itself for delivery. If that be so, it would be sufficient compliance with the requirement of issuance of notice as discussed by this Court in case of Kanubhai M. Patel (HUF) v. Hiren Bhatt or his successors to office and others(supra). In a writ petition that too at the stage of notice for reopening of assessment, we would not like to examine these aspects, leaving it to the petitioner to raise the same before the concerned authority and, thereafter, in further tax appeals, if so need be and if so advised. In this context, we may refer to decision of Commissioner of Incometax and others v. Chhabil Dass Agarwal reported in (2013) 357 ITR 357(SC), wherein it was held as under :
"15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that nonentertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of selfimposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499)."Page 11 of 13
HC-NIC Page 11 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER
14. The second issue pertains to recording of reasons before issuance of notice. In this context, we have perused the original files. We notice that relevant material was placed before the Assessing Officer on 30.3.2015. Upon perusal of such material, considering the fact that the process of reopening would get timebarred soon, on the very same date, he recorded his reasons which are also contained in the file along with a letter of the same date written by him to the Principal Commissioner seeking approval. In the file, we also find the approval granted by the Principal Commissioner of the Income tax also on 30.3.2015. In fact, the suggestion placed by Assessing Officer was first screened by the Joint Commissioner of Incometax which was then placed before the Principal Commissioner who recorded as under :
"After perusal of the reasons given by the Assessing Officer in the annexure, I am satisfied that that this is a fit case for issue of notice in lieu of section 148"
15. This was written by the Principal Commissioner Shri Sandeep Kapoor in his own handwriting below which he signed putting the date of 30.3.2015. Such materials on record would therefore, destroy the petitioners' theory that reasons were recorded later but notice was issued prior in point of time. On this count also, petitions must fail.
16. Facts being similar in all cases, no separate discussion is necessary.
17. In the result, petitions are dismissed.
Page 12 of 13HC-NIC Page 12 of 13 Created On Thu Jun 16 01:30:23 IST 2016 C/SCA/2548/2016 ORDER (AKIL KURESHI, J.) (A.J. SHASTRI, J.) raghu Page 13 of 13 HC-NIC Page 13 of 13 Created On Thu Jun 16 01:30:23 IST 2016