Dear Friends,
By the time this issue finds place in the hands of my CA friends all may be coping with the pressure to meet the dead line to upload the Tax Audit Reports. So friends, my sincere advice is to avoid stress which is injuries to health. There are many more deadlines to meet. I am reminded of the beautiful line by Robert Frost
“Whose woods these are I think I know.
His house is in the village though; He will not see me stopping here
To watch his woods fill up with snow.
My little horse must think it queer To stop without a farmhouse near Between the woods and frozen lake The darkest evening of the year.
He gives his harness bells a shake To ask if there is some mistake. The only other sound’s the sweep Of easy wind and downy flake.
The woods are lovely, dark and deep, But I have promises to keep,
And miles to go before I sleep, And miles to go before I sleep”
I am keen to discuss the decision of the Hon’ble Allahabad High Court in the case of Writ Tax No. 554 of 2022 Vikas Gupta vs. UOI dated 8th September 2022. It was a batch of 9 Writ Petitions. In all these Writ Petitions the common issue percolated out of facts which may not be identical but similar. The notices under section 148 were issued, in one of the cases before Hon’ble Court, on 31/03/2021 at 7:05 P.M. i.e. 19:05 hours by digitally signing the approval. Jurisdictional A.O. issued notice u/s. 148, digitally signed on 31/03/2021 at 5:43 P.M., i.e. 17:43 hours. The Assessee challenged the validity of notice on the ground that the notice issued u/s. 148 before the approval was granted by the PCIT is invalid. The Department defended the action of the A.O. relying on the provisions of the provisions of Section 282A of the Income Tax Act, 1961 (the Act), Rule 127A of Income Tax Rules, 1962 and sections 2(d), 2(p) and 2(t) of the Information Technology Act, 2000. The Department’s contention was contained that once the PCIT has pushed in “Generate Tap in TBA system” his satisfaction u/s. 151 of the Act would be deemed to be an authenticated document. The digital signature affixed by PCIT on his aforesaid satisfaction u/s. 151of the Act, subsequent to issuance of the notice by the A.O. u/s. 148 of the Act, would not in validate the notices is issued by A.O.
The Hon’ble Court analyzed the statutory provisions and law on the issue in detail.
The Hon’ble court in para 25 of the decision observed that
“Thus the expression “shall be signed” used in Section 282A(1) of the Act 1961 makes the signing of the notice or other document by that authority a mandatory requirement. It is not a ministerial act or an empty formality which can be dispensed with. “Signed” means to sign one’s name; to signify assent or adhesion to by signing one’s name; to attest by signing or when a person is unable to write his name then affixation of “mark” by such person. The document must be signed or mark must be affixed his mark is the author of it. Therefore, a notice or other documents as referred in Section 282A(1) of the Act, 1961 will take legal effect only after it is signed by that Income Tax Authority, whether physically or digitally. The usage of the word “shall” make it a mandatory requirement.
The Hon’ble court further observed that
The first and foremost condition under sub-Section (1) of Section 282A is that notice or other document to be issued by any Income Tax Authority shall be signed by that authority. The word “and” has been used in sub-Section (1), in conjunctive sense, meaning thereby that such notice or other document has first to be signed by the authority and thereafter it may be issued either in paper form or may be communicated in electronic form by that authority. In the present set of facts, it is the admitted case of the respondents that the PCIT has not recorded satisfaction under his signature prior to the issuance of notice by the Assessing Officer under Section 148 of the Act, 1961.
These findings are of the Hon’ble High Court are very important and of far reaching consequences.
In this issue of the Journal articles on import topics have been compiled. I hope they will be of help to all the professionals. I thank all the professional who have spared their valuable time for contributing to this issue of the Journal.
K. Gopal,
Editor