# Daujee Abhushan Bhandar Pvt. Ltd., Faizabad v. U.O.I. & Ors

- **Citation:** (2022) 3 ILRA 768
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-10
- **Case number:** Writ Tax No.78 of 2022
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daujee-abhushan-bhandar-pvt-ltd-faizabad-v-u-o-i-ors-48238
- **Pages:** 12

## Headnote

Tax Law - Constitution of India, 1950 -
Article 226, - Income Tax Act, 1961 -
Sections 139(1), 148, 149(1), 282(1)(c),
282 & 282-A, - Income Tax Rules, 1962 -
Rule 127-A, - Information Technology Act,
2000 - Sections 2(d), 2(p), (2 (t), 2(za), 3
& 13, 13(1) - Validity of Notice - issued
time barred by the Assessing Authority -
attempting to initiate proceeding u/s 148
of Act, 1961 - impugned notice signed by
the Assessing authority digitally on last
date of limitation & sent through email
but service/received upon/by the Assesse
after limitation period - Assesse filed
objection on the ground of time barred -
rejected, being notice within time - writ
petition - joint reading of provisions u/s
282 & 282-A of Act, 1961 and u/s 13 of
Act, 200 the meaning of word 'Issue'
contains both 'sing' by the authority 'and
then' issued to the Assesse either mode -
merely 'digitally signing the notice' not
comes under meaning of 'issuance of
notice' - thus, impugned notice being
served beyond limitation - as such same is
liable to be quashed.(Para - 20, 21, 29, 30)

Writ Petition allowed. (E-11)

List of Cases cited: -

## Text

768 INDIAN LAW REPORTS ALLAHABAD SERIES
seeking condonation of delay is dismissed.
As a result of which the appeal also stands
dismissed.

16. However, before parting with the
order, we are also conscious of the fact that
the benefit of filing the delayed appeals
should not go to a litigant at the cost of the
State, with whom the officials may be in
connivance. The responsibility needs to be
fixed. In the case in hand, the appeal is
being dismissed only on the ground of
delay and latches, though it was found to be
a fit case for filing appeal by the different
Authorities of the State. We direct that
whatever amount is to be paid to the
respondent in terms of the order passed by
the learned Single Judge of this Court, the
same shall be recovered from the guilty
officials/officers by holding a proper
inquiry and the State shall not bear that
burden under any circumstances. This will
be a message to other officers in the State,
why
public
at
large,
who
are
the
contributors to the State-exchequer, should
be made to bear the burden of the inaction
by the different officers /officials in the
State, which is paid out of the tax
contributed by them.

17. The process of inquiry and
recovery of the amount shall be completed
within a period of four months from the
date of receipt of copy of the order and a
compliance report shall be submitted before
the Senior Registrar of this Court, at
Lucknow.

17. We also find it appropriate to record
here that from the affidavit filed in support of
the application seeking condonation of delay,
it is evident that the system being followed
after decision of cases needs to be re-visited.
Office of Advocate General should ensure
that after every case is decided by the Court,
certified copy thereof should be applied for,
immediately and not on the request made by
the Department. Immediately, on receipt of
the copy of the order, it should be sent to the
Department concerned along with the opinion
as to whether the case is fit for filing an
appeal or not alongwith suggested grounds,
instead of waiting for a letter from the
concerned Department seeking opinion.
Further, the letter should specifically state as
to the date on which the limitation to file an
appeal or availing any remedy against the
order expires. It has to be ensured that
opinion in the case alongwith copy of the
order reaches the concerned department well
before expiry of time for filing appeal and
that date should be specifically mentioned.
Benefit should be taken of technological
advancements and the process could be
online as well.

18. Let a copy of the order be sent to
the Chief Secretary and Home Secretary,
Government of U.P. for information and
compliance. In case compliance report is not
submitted within the period specified, the
matter shall be listed in the Court only for the
aforesaid purpose on July 18, 2022, otherwise
the appeal stands dismissed.
----------
(2022)03ILR A768
ORIGINAl JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No.78 of 2022

Daujee
Abhushan
Bhandar
Pvt.
Ltd.,
Faizabad ...Petitioner
Versus
U.O.I. & Ors. ...Respondents
3 All. Daujee Abhushan Bhandar Pvt. Ltd., Faizabad Vs. U.O.I. & Ors.
769
Counsel for the Petitioner:
Sri Abhinav Mehrotra, Sri Kapil Goel, Sri
Sandeep Goel

Counsel for the Respondents:
A.S.G.I., Sri Gaurav Mahajan

Tax Law - Constitution of India, 1950 -
Article 226, - Income Tax Act, 1961 -
Sections 139(1), 148, 149(1), 282(1)(c),
282 & 282-A, - Income Tax Rules, 1962 -
Rule 127-A, - Information Technology Act,
2000 - Sections 2(d), 2(p), (2 (t), 2(za), 3
& 13, 13(1) - Validity of Notice - issued
time barred by the Assessing Authority -
attempting to initiate proceeding u/s 148
of Act, 1961 - impugned notice signed by
the Assessing authority digitally on last
date of limitation & sent through email
but service/received upon/by the Assesse
after limitation period - Assesse filed
objection on the ground of time barred -
rejected, being notice within time - writ
petition - joint reading of provisions u/s
282 & 282-A of Act, 1961 and u/s 13 of
Act, 200 the meaning of word 'Issue'
contains both 'sing' by the authority 'and
then' issued to the Assesse either mode -
merely 'digitally signing the notice' not
comes under meaning of 'issuance of
notice' - thus, impugned notice being
served beyond limitation - as such same is
liable to be quashed.(Para - 20, 21, 29, 30)

Writ Petition allowed. (E-11)

List of Cases cited: -

1. Kanubhai M. Patel (HUF) Vs Hiren Bhatt or
His Successors to Office (2011 Vol. 12
Taxmann.com 198 (Guj.),

2. Smt. Kusum Agarwal Vs Asst. Commissioner
of Income Tax, Agra & anr.(Writ Tax No. 822 of
2016, decided on dated 28.08.2017),

3. R.K. Upadhyaya Vs Shanabhai P. Patel (1987
166 ITR 163),

4. Delhi Development Authority Vs H.C. Khurana
(1993 Vol. 3 SCC ),

5. Andhra Pradesh & ors. Vs CH. Gandhi (2013
vol. 5 SCC 111).

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Jayant Banerji, J.)

1. Heard Sri Dhruv Agarwal, learned
Senior Advocate, who on our request
assisted the Court as Amicus curiae and
also heard Sri Abhinav Mehrotra, and Sri
Kapil Goel, learned counsel for the
petitioner and Sri Gaurav Mahajan, learned
Senior standing counsel for the respondents
i.e. Income Tax Department.

2. Briefly stated facts of the present
case are that the petitioner is a regular
assessee. It 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.

3. 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 email was undisputedly received by the
petitioner on his registered e-mail I .D. 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.

4. Under the circumstances, the
petitioner filed objections before the
Assessing Authority. One of the objections
raised by the petitioner was that the notice
770 INDIAN LAW REPORTS ALLAHABAD SERIES
is time barred and thus without jurisdiction
as it was issued on 06.04.2021 whereas the
limitation for issuing notice under Section
148 read with Section 149 of the Act 1961
expired on 31.03.2021. The objection filed
by the petitioner was rejected by the
Assessing Authority holding that since the
notice was digitally signed on 31.03.2021,
therefore, it shall be deemed to have been
issued within time i.e. on 31.03.2021.

5. Aggrieved, the petitioner has
filed the present writ petition, praying
for the following reliefs:-

"(a) Issue a writ, order or
direction in the nature of certiorari
quashing the notice under Section 148
of Income Tax Act, Dt.31.03.2021; and
the
connected
proceedings
for
reassessment of Income for A.Y. 201314.

(b) Issue a writ in the nature of
mandamus or an order prohibiting the
operation of the proceedings initiated
by the respondent number 2".

6. Yesterday, this writ petition was
hard at length and following questions
were framed for determination :-

"(i) Whether digitally signing
notice would automatically amount to
issuance of notice ?

(ii) Whether digitally signing a
notice and issuing it are two different
acts ?

(iii)
Whether
issuance
of
notice shall take place on the date and
time when it is dispatched either
electronically or through other mode ?

(iv) Whether merely generating
notice from the Departmental Portal on
31.3.2021
and
digitally
signing
it
thereafter, would amount to issuance of
notice ?

(v) Even if it is assumed that the
notice under Section 148 of the Income Tax
Act
was
issued
on
31.3.2022
and
despatched on 6.4.2022 then whether the
unamended provision of Section 148 or
amended provision of Section 148 would
apply ?"

7. With the consent of the learned
counsels for the parties, only question nos.
(i) (ii) (iii) & (iv), as aforequoted, are being
decided and the question No. (v) is left
open.

Submissions

8. Learned counsel for the petitioner
submits that digitally signing a notice is an
act different from the act of issuing the
notice. Section 149 provides limitation for
issuance of the notice under section 148.
When the notice has been issued to the
petitioner by the Assessing Authority
beyond the period of limitation i.e. after.
31.03.2021, therefore, the notice is time
barred and no proceeding can be carried by
the Assessing Authority pursuant to the
impugned notice under Section 148 of the
Act, 1961.

9. In support of the submissions,
learned counsel for the petitioner has
referred the provisions of Sections 148,
149, 282(1)(c) and 282 A of the Act, 1961
and Rule 127 A of the Income Tax Rules
1962 (hereinafter referred to as "the Rules
1962")
and
some
definition
clauses,
Sections 3 and 13 of the Information
3 All. Daujee Abhushan Bhandar Pvt. Ltd., Faizabad Vs. U.O.I. & Ors.
771
Technology Act, 2000 (hereinafter referred
to as "the Act, 2000".

10. Learned counsel for the petitioner
also relied upon 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).

11. Sri Gaurav Mahajan, 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.
Since
the
impugned notice under Section 148 of the
Act, 1961 has been signed by the Assessing
Authority on 31.03.2021 i.e. well within
the period of limitation, therefore, the
impugned notice is wholly valid and the
writ petition is not maintainable.

12. 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.

13. Both the learned counsels for the
parties
have
jointly
stated
that
the
limitation for issuing reassessment notice
under Section 148 of the Act 1961 for the
Assessment Year 2013-14 would have
expired on 31.3.2020 but the limitation was
extended by the Taxation and other laws
amendment
Act
2020
whereby
the
limitation stood extended upto 31.3.2021.
Thus, learned counsels for both the parties
are agreed that the limitation for issuance
of notice under Section 148 of the Act,
1961 for the Assessment Year 2013 -14
was available to the Assessing Authority
upto 31.03.2021.

Discussion and Findings

14. We have carefully considered the
submissions of learned counsel for the
parties and perused the record of the writ
petition.

15. Before we proceed to examine the
rival submissions, it would be appropriate to
reproduce relevant provisions, as under :-

(A) Income Tax Act, 1961

" Section 149. Time limit for
notice

(1) No notice under section 148
shall be issued for the relevant assessment
year,-

(a) if four years have elapsed
from the end of the relevant assessment
year, unless the case falls under clause (b)
or clause (c);

(b) if four years, but not more than
seven years, have elapsed from the end of the
relevant assessment year unless the income
chargeable to tax which has escaped
assessment amounts to or is likely to amount
to one lakh rupees or more for that year.

(c) if seven years, but not more
than sixteen years, have elapsed from the
end of the relevant assessment year, unless
the income in relation to any asset
(including financial interest in any entity)
located outside India, chargeable to tax
which has escaped assessment.

Explanation.-
In
determining
income chargeable to tax which has which
772 INDIAN LAW REPORTS ALLAHABAD SERIES
has escaped assessment for the purposes of
this sub- section, the provisions of
Explanation 2 of section 147 shall apply as
they apply for the purposes of that
section.].

(2). The provisions of sub- section
(1) as to the issue of notice shall be subject
to the provisions of section 151

(3) If the person on whom a notice
under section 148 is to be served is a person
treated as the agent of a non- resident under
section 163 and the assessment, reassessment
or re computation to be made in pursuance of
the notice is to be made on him as the agent
of such non- resident, the notice shall not be
issued after the expiry of a period of two
years from the end of the relevant assessment
year.

Explanation._ For the removal of
doubts, it is hereby clarified that the
provisions of sub-section (1) and (3), as
amended by the Finance Act, 2012, shall
also be applicable for any assessment year
beginning on or before the first day of
April, 2012."

Section 282

282. (1) The service of a notice or
summon or requisition or order or any
other
communication
under
this
Act
(hereafter in this section referred to as
"communication")
may
be
made
by
delivering or transmitting a copy thereof, to
the person therein named,--

(c) in the form of any electronic
record as provided in Chapter IV of the
Information Technology Act, 2000 (21 of
2000); or

282A

(1) Where this Act requires a
notice or other document to be issued by
any income-tax authority, such notice or
other document shall be signed and issued
in paper from or communicated in
electronic form by that authority in
accordance with such procedure as may be
prescribed.

(2)
Every
notice
or
other
document to be issued, served or given for
the purposes of this Act by any income-tax
authority,
shall
be
deemed
to
be
authenticated if the name and office of a
designated income-tax authority is printed,
stamped or otherwise written thereon.

(3) For the purposes of this
section, a designated income-tax authority
shall mean any income-tax authority
authorised by the Board to issue, serve or
give such notice or other document after
authentication in the manner as provided in
sub-section (2).]

(B) Income Tax Rules 1962

Rule 127 A

127A. Authentication of notices
and other documents-

(1)
Every
notice
or
other
document communicated in electronic
form by an income-tax authority under the
Act shall be deemed to be authenticated,-

(a) in case of electronic mail or
electronic
mail
message
(hereinafter
referred to as the e-mail), if the name and
office of such income-tax authority-

(i) is printed on the e-mail body,
if the notice or other document is in the
email body itself; or
3 All. Daujee Abhushan Bhandar Pvt. Ltd., Faizabad Vs. U.O.I. & Ors.
773

(ii) is printed on the attachment
to the e-mail, if the notice or other
document is in the attachment,

and the e-mail is issued from the
designated e-mail address of such incometax authority;

(b) in case of an electronic
record, if the name and office of the
income-tax authority-

(i) is displayed as a part of the
electronic record, if the notice or other
document is contained as text or remark in
the electronic record itself; or

(ii) is printed on the attachment
in the electronic record, if the notice or
other document is in the attachment,

and such electronic record is
displayed on the designated website.

(2)
The
Principal
Director
General of Income-tax (Systems) or the
Director General of Income-tax (Systems)
shall specify the designated e-mail address
of the income-tax authority, the designated
website and the procedure, formats and
standards for ensuring authenticity of the
communication.

Explanation: For the purposes of
this rule, the expressions-

(i)
"electronic
mail"
and
"electronic mail message" shall have the
same meanings respectively assigned to
them in Explanation to section 66A of the
Information Technology Act, 2000 (21 of
2000);

(ii) "electronic record" shall have
the same meaning as assigned to it in
clause (t) of sub-section (1) of section 2 of
the Information Technology Act, 2000 (21
of 2000)."

(C)Information
Technology
Act, 2000

2
(d)
"affixing
electronic
signature" with its grammatical variations
and cognate expressions means adoption of
any methodology or procedure by a person
for the purpose of authenticating an
electronic record by means of digital
signature;

2(p) "digital signature" means
authentication of any electronic record by
a subscriber by means of an electronic
method or procedure in accordance with
the provisions of section 3;

2(t) "electronic record" means
data, record or data generated, image or
sound stored, received or sent in an
electronic form or micro film or computer
generated micro fiche;

2(za)
"originator"
means
a
person who sends, generates, stores or
transmits any electronic message or causes
any electronic message to be sent,
generated, stored or transmitted to any
other person but does not include an
intermediary;

Section 13

Section 13 in The Information
Technology Act, 2000

13. Time and place of despatch
and receipt of electronic record.-

(1) Save as otherwise agreed to
between the originator and the addressee,
774 INDIAN LAW REPORTS ALLAHABAD SERIES
the despatch of an electronic record
occurs when it enters a computer resource
outside the control of the originator.

(2) Save as otherwise agreed
between the originator and the addressee,
the time of receipt of an electronic record
shall be determined as follows, namely:-

(a)
if
the
addressee
has
designated a computer resource for the
purpose of receiving electronic records,-

(i) receipt occurs at the time
when the electronic record enters the
designated computer resource; or

(ii) if the electronic record is sent
to a computer resource of the addressee
that is not the designated computer
resource, receipt occurs at the time when
the electronic record is retrieved by the
addressee;

(b) if the addressee has not
designated a computer resource along with
specified timings, if any, receipt occurs
when the electronic record enters the
computer resource of the addressee.

(3) Save as otherwise agreed to
between the originator and the addressee,
an electronic record is deemed to be
despatched
at
the
place
where
the
originator has his place of business, and is
deemed to be received at the place where
the addressee has his place of business.

(4) The provisions of subsection (2) shall apply notwithstanding
that the place where the computer
resource is located may be different from
the place where the electronic record is
deemed to have been received under subsection (3).

(5) For the purposes of this
section,-

(a) if the originator or the
addressee has more than one place of
business, the principal place of business,
shall be the place of business;

(b) if the originator or the
addressee does not have a place of
business, his usual place of residence shall
be deemed to be the place of business;

(c) "usual place of residence", in
relation to a body corporate, means the
place where it is registered.

16. 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.

17. Rule 127 A(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
3 All. Daujee Abhushan Bhandar Pvt. Ltd., Faizabad Vs. U.O.I. & Ors.
775
(e-mail) if the name and office of such
income tax authority is printed on the email 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 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 email is issued from the designated e-mail
address of the concerned income tax
authority.

18. 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.

19.

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.

20. 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.

21. The words "issue" or "issuance of
notice" have not been defined under the Act
1961. However, the point of time of
issuance of notice may be gathered from
the provisions of the Act, 1961, the Rules,
1962 and the Act, 2000, as discussed
above. Similar would be the position if the
meaning of the word "issue" may be
gathered in common parlance or as per
dictionary meaning.

22.

In
Chamber's
Twentieth
Century
Dictionary,
the
relevant
meanings given to the word "issue" are act
of sending out; to put forth; to put into
circulation; to publish; to give out for use.
In the New Illustrated Dictionary, the
relevant meaning attributed to the word
"issue" is come out; be published; send
forth ; publish ; put into circulation.

23. The New Lexicon Webster's
Dictionary of the English language 1988
edition its meaning of the word "issued" as
under :-

"is-sue 1. n. a flowing, going or
passing out || a place or means of going or
flowing out, outlet || a publishing or giving
out || something published or given out ||
an outcome, result, no one knows what the
final issue will be || a question, point etc.
under dispute or discussion, a matter of
concern || (med.) a discharge of blood etc.
|| (med.) an incision made to induce such a
discharge || (law) offspring at issue in
disagreement || in dispute to bring (or put)
to an issue to cause to reach the point
where a decision can and must be made to
join issue to take a conflicting view to take
776 INDIAN LAW REPORTS ALLAHABAD SERIES
issue to disagree 2. v. pres. part. is-su-ing
past and past part. is-sued v.i. to come or
flow forth || to be derived, result | (law) to
be descended || to be put into circulation||
v.t. to publish or give out || to put into
circulation, to issue a new coinage [O.F.
issue, eissuel"

24. In Black's Law Dictionary 9th
edition the meaning of the word "issue" has
been given as under :-

"issue, vb. (14c) 1. To accrue
<rents issuing from land> 2. To be put
forth officially <without probable cause,
the search warrant will notissue> 3. To
send out or distribute officially <issue
process> <issue stock> . - issuance, n."

25. In the case of Kanubhai M. Patel
(HUF) v. Hiren Bhatt or His Successors
to Office (2011) 334 ITR 25 Gujarat High
Court has considered similar issue in the
context of Section 149 of the Act 1961 and
held, as under :-

"15. The expression "issue"
has been defined in Black's Law
Dictionary to mean "To send forth; to
emit; to promulgate; as, an officer
issues orders, process issues from
court. To put into circulation; as, the
treasury issues notes. To send out, to
send out officially; to deliver, for use,
or authoritatively; to go forth as
authoritative or binding. When used
with reference to writs, process, and
the
like,
the
term
is
ordinarily
construed as importing delivery to the
proper person, or to the proper officer
for service etc."

15.1 In P. Ramanathan Aiyer's
Law Lexicon the word "issue" has been
defined as follows:

"Issue. As a noun, the act of
sending or causing to go forth; a moving
out of any enclosed place; egress; the act
of passing out; exit; egress or passage out
(Worcester Dict.); the ultimate result or
end.

As a verb, "To issue" means to
send out, to send out officially; to send
forth; to put forth; to deliver, for use, or
unauthoritatively: to put into circulation; to
emit; to go out (Burrill); to go forth as a
authoritative or binding, to proceed or
arise from; to proceed as from a source
(Century Dict.)

Issue of Process. Going out of the
hands of the clerk, expressed or implied, to
be delivered to the Sheriff for service. A
writ or notice is issued when it is put in
proper form and placed in an officer's
hands for service, at the time it becomes a
perfected process.

"Any process may be considered
"issued" if made out and placed in the
hands of a person authorised to serve it,
and with a bona fide intent to have it
served."

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
3 All. Daujee Abhushan Bhandar Pvt. Ltd., Faizabad Vs. U.O.I. & Ors.
777
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 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 2003-04, 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."

26. In writ Tax No.822 of 2016 Smt.
Kusum Agarwal Vs. Asst. Commissioner
Of Income Tax, Agra And Another,
decided on 28.08.2017 the Division Bench
of this Court has held/observed as under:

"Sri R.R. Agarwal has cited
Kanubhai M. Patel (HUF) v. Hiren Bhatt
or His Successors to Office (2011) 12
taxmann.com 198 (Guj.). In this case also,
the dispute was with regard to the issuance
of notice u/s 148 of the Act and the
limitation provided u/s 149 of the Act. The
Division Bench of the Court held that
merely signing of notice on a particular
date cannot be equated with the date of
issuance of the notice as contemplated u/s
149 of the Act. The notice therein was
signed on the last date of limitation, i.e.
31.03.2010 and was actually handed over
to the post office for the purposes of
effecting service upon the assessee on
07.04.2010.

The same is the situation in the
case we are dealing with inasmuch as the
notice was signed on 31.03.2016 and was
handed over the the postal authorities for
effecting service upon the petitioner on
01.04.2016 as per the track report of the
India Post. There is no evidence otherwise
on record to establish that the notice was
handed over to the post office for effecting
service upon the petitioner on 31.03.2016.

In view of the aforesaid facts and
circumstances of the case, we hold that the
notice u/s 148 of the Act was issued to the
petitioner beyond the last date of limitation
prescribed and as such, is barred by time."

27. In the case of Delhi Development
Authority Vs. H.C. Khurana (paras 14 &
15) (1993) 3 SCC Hon'ble Supreme Court
has explained the meaning of the word
"issue" and held/observed as under :-

"14. 'Issue' of the chargesheet in
the context of a decision taken to initiate
the disciplinary proceedings must mean, as
it does, the framing of the chargesheet and
taking of the necessary action to despatch
the chargesheet to the employee to inform
him of the charges framed against him
requiring his explanation; and not also the
further fact of service of the chargesheet on
the employee. It is so, because knowledge
to the employee of the charges framed
against him, on the basis of the decision
taken to initiate disciplinary proceedings,
does not form a part of the decision making
process of the authorities to initiate the
778 INDIAN LAW REPORTS ALLAHABAD SERIES
disciplinary proceedings, even if framing
the charges forms a part of that process in
certain situations. The conclusions of the
Tribunal quoted at the end of para 16 of the
decision in Jankiraman which have been
accepted thereafter in para 17 in the
manner indicated above, do use the word
'served' in conclusion No.(4), but the fact of
'issue' of the chargesheet to the employee is
emphasised in para 17 of the decision.
Conclusion No.(4) of the Tribunal has to be
deemed to be accepted in Jankiraman only
in this manner.

15. The meaning of the word
'issued', on which considerable stress was
laid by learned counsel for the respondent,
has to be gathered from the context in
which it is used. Meanings of the word
''issue' given in the Shorter Oxford English
Dictionary include 'to give exit to; to send
forth, or allow to pass out; to let out; .... to
give or send out authoritatively or
officially; to send forth or deal out formally
or publicly-, to emit, put into circulation'.
The issue of a charge-sheet, therefore,
means its despatch to the government
servant, and this act is complete the
moment steps are taken for the purpose, by
framing the charge-sheet and despatching
it to the government servant, the further
fact of its actual service on the government
servant not being a necessary part of its
requirement. This is the sense in which the
word 'issue' was used in the expression
'charge-sheet has already been issued to
the employee', in para 17 of the decision in
Jankiraman."

28. In the case of State of Andhra
Pradesh and others Vs. CH. Gandhi
(2013)
5SCC
111(para
19)
Hon'ble
Supreme Court explained the meaning of
word "issue" in the context of a service
matter and reiterated its earlier judgment in
the case of H.C. Khurana (supra)
observing as under :-

"19. Be it noted, in the said case,
the decision rendered in Union of India and
others v. K.V. Jankiraman and others
[(1991) 4 SCC 109] was explained by
stating thus:

- "13. ... 'The word ''issued' used
in this context in Jankiraman it is urged by
learned counsel for the respondent, means
service on the employee. We are unable to
read Jankiraman in this manner. The
context in which the word ''issued' has
been used, merely means that the decision
to initiate disciplinary proceedings is
taken and translated into action by
despatch of the charge-sheet leaving no
doubt that the decision had been taken. The
contrary view would defeat the object by
enabling the government servant, if so
inclined, to evade service and thereby
frustrate the decision and get promotion in
spite of that decision.'"

29. Thus, considering the provisions
of Section 282 and 282 A of the Act, 1961
and the provisions of Section 13 of the 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
3 All. M/S Apex Leather, Kanpur Vs. State of U.P. & Ors.
779
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.

30. 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.

31. The writ petition is allowed.
----------
(2022)03ILR A779
ORIGINAl JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.03.2022

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No. 96 of 2022

M/S Apex Leather , Kanpur ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rahul Agarwal

Counsel for the Respondents:
Sri Amit Mahajan, Sri Bhanu Pratap Singh,
Kachhawah, C.S.C., Sri Krishna Agarawal,
Sri Shashi Prakash Singh

(A) Tax Law - Constitution of India, 1950
- Article 226, - Central Goods and Service
Tax Act, 2017 - UP Goods & Service Tax
Act, 2017 - Sections 54, 109 & 112 : -
Validity of rejection of claim of refund u/s
54 of CGST/UPGST Act, 2017 - writ
petition - preliminary objection by both
St. Govt. as well as Central Govt. counsel -
to avail the remedy of an Appeal u/s 112
of the Act, 2017 - Since, till date Govt. has
not constitution of St. Bench & Areas
Benches in UP - as such preliminary
objection is impermissible. (Para - 5, 8)

(B) Tax Law - Constitution of India,1950 -
Article 226, - Central Goods and Service
Tax Act, 2017 - UP Goods and Service Tax
Act, 2017 - Sections 54, 109 & 112 : -
Writ Petition - against rejection order u/s
section 54 - Remedy is to file statutory
Appeal u/s 112 - Since, till date no
constitution
of
benches
of
Appellate
Tribunal in UP as such writ petitions are
filed in High Court - one bench of Hon'ble
High Court issued direction to constitute
Appellate Tribunal - but same is not
constituted due to interim order passed by
another Bench - 'it is a settle law that, a
coordinate bench cannot sit in appeal over
the final judgment of another coordinate
bench of equal strength - as such - to
handle the alarming situation in UP being
remediless - place this matter before
Hon'ble Chief justice - for referred the
'question of formation of Tribunal in UP' to
a Larger Bench. (Para No. 21, 22)

Writ Petition pending. (E-11)

List of Cases cited: -

1. Oudh Bar Asso. High Court, LKO VS U.O.I. &
ors. (PIL (Civil) No. 6800/2019 order Dt.
31.05.2019),

2. M/s Torqu Pharmaceuticals Pvt. Ltd. Vs
U.O.I. & ors. (Writ Tax No. 665/2018 order
dated 09.02.2021),

3. Awadh Bar Asso. High Court LKO & AnotherVs
UOI & ors. (PIL (Civil) No. 6024/2021 order
dated 04.03.2021),

4. Jai Shri Laxman Rao Patil Vs St. of Mah.
(2021 vol. 2 SCC 785),

5. UOI Vs Cipla Ltd. (2017 vol. 5 SCC 262),