Order on Board

1. By way of this petition, the petitioner has sought the following relief(s):-

“10A.1 Quashing /setting aside Annexure "P/1". Annexure "P/3"(Colly), Annexure "P/5" (Colly), Annexure "P/6"

10A.2 Any other relief(s) that this Hon'ble Court may deem fit in facts and circumstances of the case.

10. B INTERIM RELIEF(S) PRAYED: -

10B.1 Calling for the entire records of the present matter.

10B.2 Staying effect and operation of Annexure "P/1", Annexure "P/3" (Colly), Annexure "P/5" (Colly), Annexure "P/6" till the disposal of the present petition.

10B.3 Any other interim relief(s) that this Hon'ble Court may deem fit in facts and circumstances of the case.”

2. Mr. Dubey would submit that a notice under Section 148 of Income Tax Act, 1961 was issued to the petitioner after cut-off date i.e. 01.04.2021, therefore, the respondent authorities were under obligation to conduct a proceeding according to the provisions of Section 148A of the Income Tax Act, 1961(for short “Act, 1961”). He has placed reliance on the judgment passed by the High Court of Delhi in the matter of Suman Jeet Agrawal vs. Income-tax Officer reported in [2022] 143 taxmann.com 11 (Delhi).

3. On the other hand, learned counsel appearing for respondents No. 2 to 4 would submit that notice under Section 148 of Act, 1961 was dispatched on 31st of March, 2021, and therefore, there was no need to conduct a proceeding according to the provisions of Section 148A of the Act, 1961.

4. I have heard learned counsel for the parties and perused the documents placed on record.

5. Perusal of screen shot of Income Tax Business Application (ITBA) portal would reveal that notice was issued on 01.04.2021 at 12:19:37 hour, and thus, it was issued after cut-off date, and therefore, the respondent authorities are required to conduct a proceeding according to the provisions of Section 148A of the Act, 1961.

6. The High Court of Delhi in the matter of Suman Jeet Agrawal (supra) while dealing with the similar issue in para 25.1 to 25.13, 26.20 and 26.23 held has under :-

“25.1 It has emerged as an admitted position on facts, that the e- mails attaching the impugned Notices dated 31st March, 2021, were despatched by the ITBA servers on 01st April, 2021, or thereafter.

25.2 Faced with the aforesaid factual position, it has been contended by the Department that since generation of impugned Notices on the ITBA portal on 31st March, 2021, is undisputed, the singular act of generation of Notice by JAO satisfies the requirement of issued for the purpose of section 149 of the Act of 1961 and despatch of the Notice on 31st March, 2021 is not a mandatory requirement.

25.3 The Department contends that since each of the impugned Notices bear a DIN, its generation as on 31st March, 2021, is beyond doubt. It is further contended that since, on the ITBA portal, after generation of Notice the JAO is left with no power to amend, alter, cancel or ante-date the Notice, the said act of generation conclusively establishes that the Notice has been issued.

25.4 The petitioners as noted above have opposed this contention of the Department as being contrary to settled law interpreting the expression 'issued', 'shall be issued and the dictionary meaning of the phrase 'issue'. It is contended that under the Act of 1961, a Notice is held to be 'issued on the date of its due despatch and not on the date the notice is drawn up.

25.5 It would be useful to refer to the judgments relied upon by the petitioners, which clearly bring out that for an authority to contend that a Notice has been issued, the same must be duly despatched by the issuing authority. The first instructive judgment on this point is Delhi Development Authority (supra) at paragraphs 5, 13 and 15, which reads as under:

‘…

5. The substituted clause (ii) in para 2, in O.M. dated September 14, 1992, is as under:

"(ii) Government servants in respect of whom a charge- sheet has been issued and the disciplinary proceedings are p