Sunil Kumar Sahoo vs Deputy Commissioner Of Income Tax on 31 March, 2026

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    Orissa High Court

    Sunil Kumar Sahoo vs Deputy Commissioner Of Income Tax on 31 March, 2026

                  ORISSA HIGH COURT : CUTTACK
    
                      W.P.(C) No.23165 of 2025
    
      In the matter of an Application under Articles 226 and 227
                   of the Constitution of India, 1950
    
                                ***
    

    Sunil Kumar Sahoo
    Aged about 50 Years
    Son of Narayan Sahoo
    Proprietor of
    M/s. Bhagabati Cashew
    At/P.O.: Dhirapatna
    Via: Bhapur, District: Dhenkanal. … Petitioner

    -VERSUS-

    SPONSORED

    1. Deputy Commissioner of Income Tax
    Circle-1(2), Bhubaneswar
    At: 5th Floor, Aayakar Bhawan
    Rajaswa Vihar, Bhubaneswar
    District: Khordha.

    2. Joint Commissioner of Income Tax
    Aayakar Bhawan
    Rajaswa Vihar, Bhubaneswar
    District: Khordha.

    3. Tax Recovery Officer
    Income Tax Department
    4th Floor, Aayakar Bhawan
    Rajaswa Vihar
    Bhubaneswar – 751007.

    WP(C) No.23165 of 2025 Page 1 of 85

    4. Deputy Director of Income Tax
    (Investigation)
    Unit – 2(2), Bhubaneswar
    District: Khordha. … Opposite parties

    Counsel appeared for the parties:

    For the Petitioner : Mr. Sidhartha Ray,
    Senior Advocate
    Assisted by
    M/s. Kshirod Kumar Sahoo,
    and
    Dillip Kumar Samal, Advocates

    For the Opposite parties : Mr. Avinash Kedia,
    Junior Standing Counsel,
    Income Tax Department

    P R E S E N T:

    HONOURABLE CHIEF JUSTICE
    MR. HARISH TANDON
    AND

    HONOURABLE JUSTICE
    MR. MURAHARI SRI RAMAN

    Date of Hearing : 19.03.2026 :: Date of Judgment : 31.03.2026

    J UDGMENT

    MURAHARI SRI RAMAN, J.–

    Challenge is laid in the instant writ petition against
    Assessment framed under Section 147 read with Section
    144
    of the Income Tax Act, 1961, vide Order dated
    14.11.2017 of the Deputy Commissioner of Income Tax,
    Circle 1(2), Bhubaneswar with respect to assessment

    WP(C) No.23165 of 2025 Page 2 of 85
    year 2012-13 (Financial Year 2011-12) purported to have
    been passed in pursuance of Notice under Section 148
    and subsequent Notices dated 14.06.2017 and
    23.10.2017 under Section 142, and the petitioner craves
    indulgence of this Court exercising power under Articles
    226
    and 227 of the Constitution of India for grant of
    following relief(s):

    “In the context aforesaid it is most humbly prayed that
    Your Lordships may after hearing the counsel for the
    petitioner be pleased to:

         (i)     Call for the records;
    
         (ii)    And further Your Lordships may be pleased to issue
    

    rule nisi calling upon the opposite party to show
    cause as to why the order of reassessment passed
    under Section 147/144 of Income Tax Act for the
    assessment year 2012-13 passed by opposite party
    No.1 under Annexure-5 & the Demand Notice Under
    Annexure-5/A to the Writ Petition shall not be
    quashed;

    (iii) And further Your Lordships may be pleased to issue
    rule nisi calling upon the opposite parties to show
    cause as to why the order of attachment dated
    21.05.2025 issued by the opposite party No.3 under
    Annexure-4 shall not be quashed,

    (iv) And if the opposite parties fail to show cause or
    show insufficient cause then the rule may be made
    absolute;

    WP(C) No.23165 of 2025 Page 3 of 85

    (v) And further Your Lordships may be pleased to pass
    such other order or orders as your Lordships may
    deem fit and proper;

    And for this act of kindness, the petitioners as in duty
    bound shall ever pray.”

    Case of the petitioner:

    2. The petitioner filed return of income for the assessment
    year 2012-13 on 05.04.2013 under the Income Tax Act,
    1961
    (for brevity, ―IT Act‖) declaring total income at
    Rs.22,26,000/-. After filing of return for the said
    assessment year, no communication was made in
    respect of assessment under Section 143(1).

    2.1. The Deputy Commissioner of Income Tax, Circle 1(2),
    Bhubaneswar without causing any independent inquiry
    with respect to information received vide Letter dated
    29.03.2017 from the Deputy Director of Income Tax
    (Investigation), Unit-2(2), Bhubaneswar reopened the
    Assessment for the assessment year 2012-13.

    Subsequent thereto, a penalty proceeding was initiated
    by issue of show cause notice in obedience to which the
    petitioner having appeared in the said proceeding, the
    Assessing Authority imposed penalty under Section
    271C
    of the IT Act on 13.04.2018.

    2.2. Neither the Notice under Section 147 nor was the
    Assessment Order served on the petitioner. The

    WP(C) No.23165 of 2025 Page 4 of 85
    petitioner came to know about the Assessment Order
    and the Demand Notice passed under Section 147/144
    of the IT Act, on 21.05.2025 when a Tax Recovery
    Proceeding was initiated. The Tax Recovery Officer, has
    issued the order of attachment of the immovable
    property. On getting the information about such
    attachment order, the petitioner having applied for the
    certified copy of the relevant Orders which was supplied
    to him on 24.07.2025.

    2.3. Hence this application has been filed questioning
    jurisdiction of the Assessing Officer to pass Assessment
    Order dated 14.11.2017 under Section 147 read with
    Section 144 (Annexure-5) and as a consequence thereof
    raise demand under Section 156 of the IT Act vide
    Annexure-5A without ensuring service of Notice under
    Section 148.

    Hearing:

    3. Though copy of the writ petition was served on the
    Senior Standing Counsel for the Income Tax Department
    on 18.08.2025, no counter affidavit has been filed by the
    Department.

    3.1. On 12.03.2026 when the matter was taken up for the
    first time by this Court, at the request of Sri Subash
    Chandra Mohanty, learned Senior Standing Counsel for

    WP(C) No.23165 of 2025 Page 5 of 85
    the Income Tax Department the matter stood adjourned
    to 19.03.2026 for furnishing instructions.

    3.2. Accordingly matter being listed today, on receipt of
    written instruction from the Department, Sri Avinash
    Kedia, learned Junior Standing Counsel for the Income
    Tax Department appeared and was ready with the
    matter to advance arguments.

    3.3. Heard Sri Sidhartha Ray, learned Senior Advocate
    assisted by Sri Kshirod Kumar Sahoo, learned Advocate
    for the petitioner and Sri Avinash Kedia, learned Junior
    Standing Counsel representing the opposite parties.

    3.4. Hearing being concluded, the matter stood reserved for
    preparation and pronouncement of Judgment/Order.

    Arguments and submissions:

    4. Sri Sidhartha Ray, learned Senior Advocate being
    assisted by Sri Kshirod Kumar Sahoo, learned Advocate
    urged that the mandatory requirement of Section 148
    implying service of notice on the petitioner
    contemplating initiation of proceeding for assessment
    under Section 147 read with Section 144 being not
    complied with, the Assessment Order dated 14.11.2017
    suffers from patent infirmity rendering the entire
    proceeding vitiated.

    WP(C) No.23165 of 2025 Page 6 of 85

    4.1. It is vociferously argued that without completing the
    assessment process under Section 143 (as there was no
    communication in this respect), no assessment could
    have been validly initiated under Section 147 by taking
    recourse to provisions of Section 148. The impugned
    assessment being made without demonstrating that the
    notice under Section 148 was served on the petitioner,
    the assessment order cannot be sustained.

    4.2. Amplifying his argument further, Sri Sidhartha Ray,
    learned Senior Advocate would emphasise that the
    modes specified in Section 282 of the IT Act with respect
    to service of notice, as it existed prior to bringing into
    force Notification dated 30.01.2019 issued by the
    Central Board of Direct Taxes, being not adhered to, the
    Assessment Order dated 14.11.2017 (Annexure-5) and
    consequential Demand Notice dated 14.11.2017 raising
    demand to the tune of Rs.47,45,150/- cannot be
    sustained.

    5. Vehemently opposing entertainment of the writ petition
    it is stated that inordinate delay in approaching this
    Court being not appropriately explained, the petitioner
    cannot be allowed to circumvent alternative remedial
    forum. Sri Avinash Kedia, learned Junior Standing
    Counsel refuted the submissions made by the learned
    Senior Advocate and supported the Assessment Order on
    the premise that non-appearance of the assessee despite
    WP(C) No.23165 of 2025 Page 7 of 85
    issue of statutory notice under Section 148 coupled with
    notices under Section 142 left the Assessing Authority
    without any option but to conclude the assessment
    based on unexplained cash deposits made under Section
    69A
    of the IT Act.

    Consideration of arguments and submissions:

    6. The Assessment Order dated 14.11.2017 (Annexure-5)
    reflects the following fact:

    “The case was reopened under Section 147 of the IT Act,
    1961. Notice under Section 148 of the Act was issued to
    the assessee requiring to deliver before the expiry of 30
    days from the date of service of notice, a return in the
    prescribed form of their income in respect of which they
    are assessable for the said assessment year.”

    6.1. Certified copy of order dated 29.03.2017 (Annexure-1)
    shows that the Assessing Officer after reducing the fact
    enumerated in the information received from the Deputy
    Director of Income Tax (Investigation) to writing on
    29.03.2017, directed to issue Notice under Section 148.
    It is observed in the said order dated 29.03.2017 as
    follows:

    “Information has been received from the Deputy
    Director of Income-tax (Investigation), Unit-2(2),
    Bhubaneswar vide his letter dated 23.03.2017 that
    M/s. Bhagabati Cashew is a Proprietorship concern
    of Shri Sunil Kumar Sahoo, having account
    No.028405004208 with Bhubaneswar, Nayapalli
    WP(C) No.23165 of 2025 Page 8 of 85
    Branch. The account was opened on 30.06.2011.
    Date of incorporation was 14 March 1984. There are
    11 linked accounts under PAN-ATOPS6509F held by
    the customer. Alert had been generated due to large
    value cash transactions in currents accounts. As per
    the due diligence conducted by the bank official
    customer is into cashew business and exporter of
    this product. Transaction pattern shows that account
    get credits by the cash, clearing and get debits by
    the RTGS, transfer, self paid cheque. Total deposits
    between 02.07.2011 to 08.10.2011 is amounted to
    Rs.104 lakhs out of which Rs.78 lakh is by cash and
    total debit is amounted to Rs.104 lakh. Cash
    deposited from different branches and on
    26.07.2011, Rs.17 lakh remitted through RTGS in
    own name. Customers another account also showing
    the same transaction pattern that is cash
    transaction in a new account is a short period leads
    to suspicion hence reported.

    2. The additional linked bank accounts as detailed
    under have been found in the CTR database of FIU-
    IND in which substantial cash transactions have
    been made. 1) IDBI Bank, College Road, Cuttack-
    21710200000 2) ICICI Bank, Bajraakabati Road,
    Cuttack-6342050085003 3) IDCI Bank, Khurda,
    Bhubaneswar-042102000030463.

    2. Enquiry had been initiated by the Directorate by
    issuing summons to Shri Sunil Kumar sahoo (Prop:

    Bhagabati Cashew) and the other individual linked
    to the STR Sri Ashok Kumar Sahoo. In his
    submission Sri Ashok Kumar Sahoo explained that
    he is doing business of cashew collection which is
    seasonal in nature. He takes cash advances from Sri

    WP(C) No.23165 of 2025 Page 9 of 85
    Sunil Kumar Sahoo for supply of cashew and when
    the desired collection is not materialized the advance
    is returned in cash or deposited in the bank account
    of the Sri Sunil Kumar Sahoo. The bank account
    shows number of high cash deposits which are
    explained as cash collection against sales.

    3. Summons had been issued by the Directorate to both
    parties. However, only Sri Ashok Kumar Sahoo has
    complied to summon but had not furnished any
    documentary evidence like ledger copies, stock book,
    bank book, cash book. The other party Sri Sunil
    Kumar Sahoo has not yet complied with the
    summons. They were also issued the reminder but
    they have not complied.

    4. It is seen from the record that the assessee has filed
    the return of income for the assessment year under
    consideration i.e. 2012-13 on 05.04.2013 declaring
    total income of Rs.22,26,000/-. It is observed from
    the balance sheet filed that the balance available
    with the banks is Rs.13,233/- only and hence
    obviously the balance sheet of the concern of the
    assessee do not manifest or reflective of the
    transactions brought on record/transaction reported
    in the letter of the ADIT (Inv.), Bhubaneswar.

    5. Thus I have reason to believe that income upto such
    extent has escaped assessment within the meaning
    of Section 147 of the I.T. Act. Issue notice under
    Section 148 of the I.T. Act.”.

    6.2. The zimni orders of the proceeding under Section 148 as
    enclosed with the writ petition at Annexure-1
    demonstrates as follows:

    WP(C) No.23165 of 2025 Page 10 of 85

    “28.03.2017 Approval under Section 147 received vide
    No.11487 dated 28.03.2017 placed in the
    folder.

    29.03.2017 Notice under Section 148 issued to assessee.

    No compliance.

    14.06.2017 Notice under Section 142(1) issued fixing
    compliance on 28.06.2017 at 1.15 p.m.

    ***”

    6.3. The written instruction received from the Department
    and furnished by the learned Junior Standing Counsel
    during the course of hearing reveals the following facts:

         Notice   under      Despatch on     ---                   ---
         Section    148      29.03.2017
         dated               vide despatch
         29.03.2017          No.11536
         Notice   under      Despatch on     ---                   Annexure-
         Section 142(1)      16.06.2017                            A
         dated               vide despatch
         14.06.2017          No.2065
         Notice   under      Despatch on     Speed   post    No.   Annexure-
         Section 142(1)      26.10.2017      EO941011095IN         B
         dated               vide despatch   (postal    delivery
         23.10.2017          No.8319         report placed on
                                             record)
         Assessment          Despatch on     Speed   post    No.   Annexure-
         Order    along      14.11.2017      EO941014159IN         C
         with Demand         vide despatch
         Notice   under      No.9637
         Section    156
         dated
         14.11.2017
    
    
    
    WP(C) No.23165 of 2025                                     Page 11 of 85
    

    6.4. Aforesaid instruction as provided by the Income Tax
    Department would make it abundantly clear that though
    despatch number is assigned with respect to despatch of
    Notice dated 29.03.2017 under Section 148, it could not
    be demonstrated the mode of despatch and date of
    service on the petitioner. However, the zimni order
    indicates ―issue‖ of notice under Section 148 on
    29.03.2017.

    6.5. Indubitably from the arguments of counsel for both sides
    it is discernible that since the Notice under Section 148
    was stated to have been issued on 29.03.2017 pursuant
    to which impugned Assessment Order was passed on
    14.11.2017, the provisions of the IT Act as it existed on
    the date of issue of notice would be the guiding the
    factor. With the above factual scenario regarding
    statutory Notice dated 29.03.2017 under Section 148, in
    order to examine whether service of such notice is sine
    qua non for validity of initiation of proceeding under
    Section 147 of the IT Act, it is felt expedient to have
    regard to the relevant provisions of the IT Act.

    6.6. The provisions of Section 147, Section 148 and Section
    149
    of the IT Act at the relevant period stood thus:

    “147.Income escaping assessment.–

    If the Assessing Officer has reason to believe that
    any income chargeable to tax has escaped

    WP(C) No.23165 of 2025 Page 12 of 85
    assessment for any assessment year, he may,
    subject to the provisions of Section 148 to 153,
    assess or reassess such income and also any other
    income chargeable to tax which has escaped
    assessment and which comes to his notice
    subsequently in the course of the proceedings under
    this section, or recomputed the loss or the
    depreciation allowance or any other allowance, as
    the case may be, for the assessment year concerned
    (hereafter in this section and in Section 148 to 153
    referred to as the relevant assessment year:

    Provided that where an assessment under sub-
    section (3) of Section 143 or this section has been
    made for the relevant assessment year, no action
    shall be taken under this section after the expiry of
    four years from the end of the relevant assessment
    year, unless any income chargeable to tax has
    escaped assessment for such assessment year by
    reason of failure on the part of the assessee to make
    a return under Section 139 or in response to a notice
    issued under sub-section (1) of Section 142 or
    Section 148 or to disclose fully and truly all material
    facts necessary for his assessment, for that
    assessment year:

    Provided further that nothing contained in the first
    proviso shall apply in a case where any income in
    relation to any asset (including financial interest in
    any entity) located outside India, chargeable to tax,
    has escaped assessment for any assessment year:

    Provided also that the Assessing Officer may assess
    or reassess such income, other than the income
    involving matters which are the subject matters of

    WP(C) No.23165 of 2025 Page 13 of 85
    any appeal, reference or revision, which is
    chargeable to tax and has escaped assessment.

    Explanation 1.–

    Production before the Assessing Officer of account
    books or other evidence from which material
    evidence could with due diligence have been
    discovered by the Assessing Officer will not
    necessarily amount to disclosure within the meaning
    of the foregoing proviso.

    Explanation 2.–

    For the purposes of this section, the following shall
    also be deemed to be cases where income
    chargeable to tax has escaped assessment, namely:

    (a) where no return of income has been furnished
    by the assessee although his total income or
    the total income of any other person in respect
    of which he is assessable under this Act during
    the previous year exceeded the maximum
    amount which is not chargeable to income-tax;

    (b) where a return of income has been furnished
    by the assessee but no assessment has been
    made and it is noticed by the Assessing Officer
    that the assessee has understated the income
    or has claimed excessive loss, deduction,
    allowance or relief in the return;

    (ba) where the assessee has failed to furnish a
    report in respect of any international
    transaction which he was so required under
    Section 92E;

    WP(C) No.23165 of 2025 Page 14 of 85

    (c) where an assessment has been made, but–

    (i) income chargeable to tax has been
    underassessed ; or

    (ii) such income has been assessed at too
    low a rate; or

    (iii) such income has been made the subject of
    excessive relief under this Act; or

    (iv) excessive loss or depreciation allowance
    or any other allowance under this Act has
    been computed;]

    (d) where a person is found to have any asset
    (including financial interest in any entity)
    located outside India.

    Explanation 3.–

    For the purpose of assessment or reassessment
    under this section, the Assessing Officer may assess
    or reassess the income in respect of any issue,
    which has escaped assessment, and such issue
    comes to his notice subsequently in the course of the
    proceedings under this section, notwithstanding that
    the reasons for such issue have not been included in
    the reasons recorded under sub-section (2) of Section

    148.

    Explanation 4.–

    For the removal of doubts, it is hereby clarified that
    the provisions of this section, as amended by the
    Finance Act, 2012, shall also be applicable for any
    assessment year beginning on or before the 1st day
    of April, 2012.

    WP(C) No.23165 of 2025 Page 15 of 85

    148. Issue of notice where income escaped assessment.–

    (1) Before making the assessment, reassessment or
    recomputation under Section 147, the Assessing
    Officer shall serve on the assessee a notice
    requiring him to furnish within such period, as may
    be specified in such notice, a return of his income or
    the income of any other person in respect of which
    he is assessable under this Act during the previous
    year corresponding to the relevant assessment year,
    in the prescribed form and verified in the prescribed
    manner and setting forth such other particulars as
    may be prescribed; and the provisions of this Act
    shall, so far as may be, apply accordingly as if such
    return were a return required to be furnished under
    Section 139:

    Provided that in a case–

    (a) where a return has been furnished during the
    period commencing on the 1st day of October,
    1991 and ending on the 30th day of
    September, 2005 in response to a notice served
    under this section, and

    (b) subsequently a notice has been served under
    sub-section (2) of Section 143 after the expiry of
    twelve months specified in the proviso to sub-

    section (2) of Section 143, as it stood
    immediately before the amendment of said
    sub-section by the Finance Act, 2002 (20 of
    2002) but before the expiry of the time limit for
    making the assessment, reassessment or
    recomputation as specified in sub-section (2) of
    Section 153, every such notice referred to in

    WP(C) No.23165 of 2025 Page 16 of 85
    this clause shall be deemed to be a valid
    notice:

    Provided further that in a case–

    (a) where a return has been furnished during
    the period commencing on the 1st day of
    October, 1991 and ending on the 30th
    day of September, 2005, in response to a
    notice served under this section, and

    (b) subsequently a notice has been served
    under clause (ii) of sub-section (2) of
    section 143 after the expiry of twelve
    months specified in the proviso to clause

    (ii) of sub-section (2) of Section 143, but
    before the expiry of the time limit for
    making the assessment, reassessment or
    recomputation as specified in sub-section
    (2) of Section 153, every such notice
    referred to in this clause shall be deemed
    to be a valid notice.

    Explanation.–

    For the removal of doubts, it is hereby declared
    that nothing contained in the first proviso or the
    second proviso shall apply to any return which
    has been furnished on or after the 1st day of
    October, 2005 in response to a notice served
    under this section.

    (2) The Assessing Officer shall before issuing any notice
    under this section record his reasons for doing so.

    149. Time limit for notice.–

    WP(C) No.23165 of 2025 Page 17 of 85

    (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 six 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 four 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,
    has escaped assessment.

    Explanation.–

    In determining income chargeable to tax which 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 recomputation to be made in

    WP(C) No.23165 of 2025 Page 18 of 85
    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 six years from
    the end of the relevant assessment year.

    Explanation.–

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

    6.7. It does surface from the language employed in Section
    148(1)
    that it is required to ―serve on the assessee a
    notice‖ before making the assessment, reassessment or
    recomputation under Section 147. In Section 149 it is
    made clear that ―no notice under Section 148 shall be
    issued‖ beyond the periods specified therein.

    6.8. The use of the word ―shall‖ in the aforesaid provisions
    would denote that it is mandatory in nature.

    6.9. In Bank of India Vrs. Sri Nangli Rice Mills (P) Ltd., (2025)
    9 SCC 225 it is observed as follows:

    “115.This Court in Delhi Airtech Services (P) Ltd. Vrs.

    State of U.P. (2011) 9 SCC 354 held that the general
    rule of interpretation requires that the word “shall”

    be read as “must”. It observed that the term “shall”
    only be read as “may” where doing so would
    achieve the ends of legislative intent behind the
    substantive provision and the scheme of the entire

    WP(C) No.23165 of 2025 Page 19 of 85
    statute in question. The relevant observations read
    as under:

    „122. The distinction between mandatory and
    directory provisions is a well-accepted norm of
    interpretation. The general rule of
    interpretation would require the word to
    be given its own meaning and the word
    “shall” would be read as “must” unless it
    was essential to read it as “may” to
    achieve the ends of legislative intent and
    understand the language of the
    provisions. It is difficult to lay down any
    universal rule, but wherever the word “shall” is
    used in a substantive statute, it normally
    would indicate mandatory intent of the
    legislature.

    123. Crawford on Statutory Construction has
    specifically stated that language of the
    provision is not the sole criterion; but the courts
    should consider its nature, design and the
    consequences which could flow from construing
    it one way or the other.

    124. Thus, the word “shall” would normally be
    mandatory while the word “may” would be
    directory. Consequences of non-compliance
    would also be a relevant consideration. The
    word “shall” raises a presumption that the
    particular provision is imperative but this prima
    facie inference may be rebutted by other
    considerations such as object and scope of the
    enactment and the consequences flowing from
    such construction.‟

    WP(C) No.23165 of 2025 Page 20 of 85

    116. Similarly in State of Haryana Vrs. Raghubir Dayal,
    (1995) 1 SCC 133, this Court held that the use of the
    word “shall” ordinarily be construed as mandatory
    except where such an interpretation would be
    anathema to either the scope of the enactment, or
    where the consequences that would flow from such
    construction would not demand such interpretation.

    The relevant observations read as under:

    „5. The use of the word “shall” is ordinarily
    mandatory but it is sometimes not so
    interpreted if the scope of the enactment, on
    consequences to flow from such construction
    would not so demand. Normally, the word
    “shall” prima facie ought to be considered
    mandatory but it is the function of the
    court to ascertain the real intention of the
    legislature by a careful examination of the
    whole scope of the statute, the purpose it
    seeks to serve and the consequences that
    would flow from the construction to be
    placed thereon. The word “shall”, therefore,
    ought to be construed not according to the
    language with which it is clothed but in the
    context in which it is used and the purpose it
    seeks to serve. The meaning has to be ascribed
    to the word “shall” as mandatory or as
    directory, accordingly. Equally, it is settled
    law that when a statute is passed for the
    purpose of enabling the doing of
    something and prescribes the formalities
    which are to be attended for the purpose,
    those prescribed formalities which are
    essential to the validity of such thing,
    would be mandatory. However, if by holding

    WP(C) No.23165 of 2025 Page 21 of 85
    them to be mandatory, serious general
    inconvenience is caused to innocent persons or
    general public, without very much furthering
    the object of the Act, the same would be
    construed as directory.‟ ***”

    6.10. The following observation with respect to ‗shall’ and
    ‗may’ appearing in C. Bright Vrs. The District Collector,
    (2020) 7 SCR 997 deserves to be quoted:

    “7. A well settled rule of interpretation of the statutes is
    that the use of the word „shall‟ in a statute, does not
    necessarily mean that in every case it is mandatory
    that unless the words of the statute are literally
    followed, the proceeding or the outcome of the
    proceeding, would be invalid. It is not always correct
    to say that if the word „may‟ has been used, the
    statute is only permissive or directory in the sense
    that non-compliance with those provisions will not
    render the proceeding invalid [State of U.P. Vrs.

    Manbodhan Lal Srivastava, AIR 1957 SC 912] and
    that when a statute uses the word „shall‟, prima
    facie, it is mandatory, but the Court may ascertain
    the real intention of the legislature by carefully
    attending to the whole scope of the statute [State of
    U.P. Vrs. Babu Ram Upadhya, AIR 1961 SC 751].
    The principle of literal construction of the statute
    alone in all circumstances without examining the
    context and scheme of the statute may not serve the
    purpose of the statute [Reserve Bank of India Vrs.
    Peerless General Finance and Investment Co. Ltd.,
    (1987) 1 SCC 424].”

    WP(C) No.23165 of 2025 Page 22 of 85

    6.11. In CCE, Cus. & ST Vrs. Ballarpur Industries Ltd., 2016 (I)
    ILR-Cut 931 this Court while considering the use of the
    word ―shall‖ as mandatory enunciated the circumstance
    as follows:

    “16. It is reported in the decision of Privy Council in
    Montreal Street Railway Company Vrs. Normandin
    (1917) AC 170 where their Lordships have observed:

    „*** The question whether provisions in a
    statute are directory or imperative has very
    frequently arisen in this country, but it has
    been said that no general rule can be laid
    down, and that in every case the object of the
    statute must be looked at. The cases on the
    subject will be found collected in Maxwell on
    Statutes, 5th Edn., page 596 and the following
    pages. When the provisions of a statute relate to the
    performance of a public duty and the case is such
    that to hold null and void acts done in neglect of this
    duty would work serious general inconvenience, or
    injustice to persons who have no control over those
    entrusted with the duty, and at the same time would
    not promote the main object of the Legislature, it has
    been the practice to hold such provisions to be
    directory only, the neglect of them, though
    punishable, not affecting the validity of the acts
    done.‟

    17. The aforesaid observation has also been followed by
    the Hon‟ble Supreme Court in L. Hazari Mal Kuthiala
    Vrs. ITO reported in (1961) 41 ITR 12 (SC) = AIR
    1961 SC 200. In Bhavnagar University Vrs. Palitana

    WP(C) No.23165 of 2025 Page 23 of 85
    Sugar Mill P. Ltd., AIR 2003 SC 511 their lordships
    have observed:

    „23. It is the basic principle of construction of
    statute that the same should be read as a
    whole, then chapter by chapter, section by
    section and words by words. Recourse to
    construction or interpretation of statute is
    necessary when there is ambiguity, obscurity,
    or inconsistency therein and not otherwise. An
    effort must be made to give effect to all parts of
    the statute and unless absolutely necessary,
    no part thereof shall be rendered surplusage or
    redundant.‟

    18. With due respect to the above decisions, it is made
    clear that when the statute has entrusted the
    performances of public duty upon the public officer
    having great importance and the dereliction of such
    purpose will cause serious inconvenience to the
    general public and State exchequer. Such statutory
    provision cannot be said to be mere directory but it is
    mandatory. Moreover, for interpretation or the
    construction of statute, it should be read as a whole
    to find out the purposive interpretation as observed
    by the Hon‟ble Supreme Court.”

    6.12. Presence of the word ―shall‖ in the provisions of the IT
    Act
    referred to above would indicate that the ―service on
    the assessee‖ in Section 148 and ―shall be issued‖ in
    Section 149 are necessary concomitant facets and both
    the sections are required to be read in harmony.

    WP(C) No.23165 of 2025 Page 24 of 85

    6.13. In Franklin Templeton Trustee Services Private Limited
    Vrs. Amruta Garg, (2021) 6 SCC 736, it has been held as
    under:

    “17. The concept of “absurdity” in the context of
    interpretation of statutes is construed to include any
    result which is unworkable, impracticable, illogical,
    futile or pointless, artificial, or productive of a
    disproportionate counter-mischief [See Bennion on
    Statutory Interpretation, 5th Edn., p. 969.]. Logic
    referred to herein is not formal or syllogistic logic,
    but acceptance that enacted law would not set a
    standard which is palpably unjust, unfair,
    unreasonable or does not make any sense. [Bennion
    on Statutory Interpretation, 5th Edn., p. 986.] When
    an interpretation is beset with practical difficulties,
    the courts have not shied from turning sides to
    accept an interpretation that offers a pragmatic
    solution that will serve the needs of society [Id, p.
    971, quoting Griffiths, L.J.]. Therefore, when there is
    choice between two interpretations, we would avoid
    a “construction” which would reduce the legislation
    to futility, and should rather accept the
    “construction” based on the view that draftsmen
    would legislate only for the purpose of bringing
    about an effective result. We must strive as far as
    possible to give meaningful life to enactment or rule
    and avoid cadaveric consequences [See Principles of
    Statutory Interpretation by Justice G.P. Singh, 14th
    Edn., p. 50.].”

    6.14. In the case of Vivek Narayan Sharma Vrs. Union of India,
    (2023) 3 SCC 1, it has been held as under:

    WP(C) No.23165 of 2025 Page 25 of 85

    “134.Legislation has an aim, it seeks to obviate some
    mischief, to supply an inadequacy, to effect a
    change of policy, to formulate a plan of Government.
    That aim, that policy is not drawn, like nitrogen, out
    of the air; it is evidenced in the language of the
    statute, as read in the light of other external
    manifestations of purpose [“Some Reflections on the
    Reading of Statutes” [(1947) 47 Columbia LR 527],
    Columbia LR at p. 538]. This is how Justice
    Frankfurter succinctly propounds the principle of
    purposive interpretation. ***

    137. A statute must be construed having regard to the
    legislative intent. It has to be meaningful. A
    construction which leads to manifest absurdity must
    not be preferred to a construction which would fulfil
    the object and purport of the legislative intent. ***

    148. It is thus clear that it is a settled principle that the
    modern approach of interpretation is a pragmatic
    one, and not pedantic. An interpretation which
    advances the purpose of the Act and which ensures
    its smooth and harmonious working must be chosen
    and the other which leads to absurdity, or confusion,
    or friction, or contradiction and conflict between its
    various provisions, or undermines, or tends to defeat
    or destroy the basic scheme and purpose of the
    enactment must be eschewed. The primary and
    foremost task of the Court in interpreting a statute is
    to gather the intention of the legislature, actual or
    imputed. Having ascertained the intention, it is the
    duty of the Court to strive to so interpret the statute
    as to promote or advance the object and purpose of
    the enactment. For this purpose, where necessary,
    the Court may even depart from the rule that plain

    WP(C) No.23165 of 2025 Page 26 of 85
    words should be interpreted according to their plain
    meaning. There need be no meek and mute
    submission to the plainness of the language. To
    avoid patent injustice, anomaly or absurdity or to
    avoid invalidation of a law, the court would be
    justified in departing from the so-called golden rule
    of construction so as to give effect to the object and
    purpose of the enactment. Ascertainment of
    legislative intent is the basic rule of statutory
    construction.”

    6.15. In Sultana Begum Vrs. Prem Chand Jain, (1997) 1 SCC
    373, the following principles relating to harmonious
    construction has been propounded:

    “15. On a conspectus of the case-law indicated above,
    the following principles are clearly discernible:

    (1) It is the duty of the courts to avoid a head-on
    clash between two sections of the Act and to
    construe the provisions which appear to be in
    conflict with each other in such a manner as to
    harmonise them.

    (2) The provisions of one section of a statute
    cannot be used to defeat the other provisions
    unless the court, in spite of its efforts, finds it
    impossible to effect reconciliation between
    them.

    (3) It has to be borne in mind by all the courts all
    the time that when there are two conflicting
    provisions in an Act, which cannot be
    reconciled with each other, they should be so
    interpreted that, if possible, effect should be

    WP(C) No.23165 of 2025 Page 27 of 85
    given to both. This is the essence of the rule of
    “harmonious construction”.

    (4) The courts have also to keep in mind that an
    interpretation which reduces one of the
    provisions as a “dead letter” or “useless
    lumber” is not harmonious construction.

    (5) To harmonise is not to destroy any statutory
    provision or to render it otiose.”

    6.16. The case of Commissioner of Income Tax Vrs. Hindustan
    Bulk Carriers, (2003) 3 SCC 57, proceeded to observe
    that:

    “16. The courts will have to reject that construction which
    will defeat the plain intention of the legislature even
    though there may be some inexactitude in the
    language used. (See Salmon Vrs. Duncombe, (1886)
    11 AC 627 = 55 LJPC 69 = 55 LT 446 (PC), AC at p.
    634, Curtis Vrs. Stovin, (1889) 22 QBD 513 = 58
    LJQB 174 = 60 LT 772 (CA) referred to in S. Teja
    Singh case, AIR 1959 SC 352 = (1959) 35 ITR 408.)

    17. If the choice is between two interpretations, the
    narrower of which would fail to achieve the manifest
    purpose of the legislation, we should avoid a
    construction which would reduce the legislation to
    futility, and should rather accept the bolder
    construction, based on the view that Parliament
    would legislate only for the purpose of bringing
    about an effective result. (See Nokes Vrs. Doncaster
    Amalgamated Collieries, (1940) 3 All ER 549 = 1940
    AC 1014 = 109 LJKB 865 = 163 LT 343 (HL) referred
    to in Pye Vrs. Minister for Lands for NSW, (1954) 3

    WP(C) No.23165 of 2025 Page 28 of 85
    All ER 514 = (1954) 1 WLR 1410 (PC).) The principles
    indicated in the said cases were reiterated by this
    Court in Mohan Kumar Singhania Vrs. Union of
    India, 1992 Supp (1) SCC 594 = AIR 1992 SC 1.

    18. The statute must be read as a whole and one
    provision of the Act should be construed with
    reference to other provisions in the same Act so as to
    make a consistent enactment of the whole statute.

    19. The court must ascertain the intention of the
    legislature by directing its attention not merely to the
    clauses to be construed but to the entire statute; it
    must compare the clause with other parts of the law
    and the setting in which the clause to be interpreted
    occurs. (See R.S. Raghunath Vrs. State of
    Karnataka, (1992) 1 SCC 335 = AIR 1992 SC 81.)
    Such a construction has the merit of avoiding any
    inconsistency or repugnancy either within a section
    or between two different sections or provisions of the
    same statute. It is the duty of the court to avoid a
    head-on clash between two sections of the same Act.
    (See Sultana Begum Vrs. Prem Chand Jain, (1997) 1
    SCC 373 = AIR 1997 SC 1006.)

    20. Whenever it is possible to do so, it must be done to
    construe the provisions which appear to conflict so
    that they harmonise. It should not be lightly
    assumed that Parliament had given with one hand
    what it took away with the other.

    21. The provisions of one section of the statute cannot be
    used to defeat those of another unless it is
    impossible to effect reconciliation between them.
    Thus a construction that reduces one of the
    provisions to a “useless lumber” or “dead letter” is

    WP(C) No.23165 of 2025 Page 29 of 85
    not a harmonised construction. To harmonise is not
    to destroy.”

    6.17. Upon harmonious construction of the provisions of the
    IT Act so far as is necessary, it can be affirmatively
    stated that if adequate opportunity is not granted to an
    assessee and there has been irregular assumption of
    jurisdiction by the Assessing Officer, it is quite obvious
    that there has been violation of the principles of natural
    justice.

    6.18. The circular referred to by Sri Sidhartha Ray, learned
    Senior Advocate would point out that adherence to the
    principles of natural justice before assessment is
    expedient to avoid prejudice. Noteworthy here to have
    reference to said Instruction No.20/2015, dated
    29.12.2015 which reads thus:

    “Government of India
    Ministry of Finance
    Department of Revenue
    Central Board of Direct Taxes

    North Block, New Delhi, the 29th of December, 2015

    Subject: Scrutiny Assessments– some important issues
    and scope of scrutiny cases selected through
    Computer Aided Scrutiny Selection (CASS)–
    reg.

    The Central Board of Direct Taxes (“CBDT”), vide
    Instruction No.7/2014 dated 26.09,2014 had
    clarified the extent of enquiry in certain category of
    WP(C) No.23165 of 2025 Page 30 of 85
    cases specified therein, which are selected for
    scrutiny through CASS Further clarifications have
    been sought regarding the scope and applicability of
    the aforesaid Instruction to cases being scrutinized

    2. In order to facilitate the conduct of scrutiny
    assessments and to bring further clarity on some of
    the issues emerging from the aforesaid Instruction,
    following clarifications are being made:

    i. Year of applicability: As stated in the
    Instruction No. 7/2014, the said Instruction is
    applicable only in respect of the cases selected
    for scrutiny through CASS-2014.

    ii. Whether the said Instruction is applicable to all
    cases selected under CASS: The said
    Instruction is applicable where the case is
    selected for scrutiny under CASS only on the
    parameter(s) of AIR/CIB/26AS data. If a case
    has been selected under CASS for any other
    reason(s)/parameter(s) besides the AIR/CIB/
    26AS data, then the said Instruction would not
    apply.

    iii. Scope of Enquiry: Specific issue based enquiry
    is to be conducted only in those scrutiny cases
    which have been selected on the parameter(s)
    of AIR/CIB/26AS data. In such cases, the
    Assessing Officer, shall also confine the
    Questionnaire only to the specific issues
    pertaining to AIR/CIB/26AS data Wider
    scrutiny in these cases can only be conducted
    as per the guidelines and procedures stated in
    Instruction No.7/2014.

    WP(C) No.23165 of 2025 Page 31 of 85

    iv. Reason for selection: In cases under scrutiny
    for verification of AIR/CIB/26AS data, the
    Assessing Officer has to intimate the reason for
    selection of case for scrutiny to the assessee
    concerned.

    3. As far as the returns selected for scrutiny through
    CASS-2015 are concerned, two type of cases have
    been selected for scrutiny in the current Financial
    Year– one is „Limited Scrutiny‟ and other is
    „Complete Scrutiny‟. The assessees concerned have
    duly been intimated about their cases falling either
    in Limited Scrutiny or „Complete Scrutiny‟ through
    notices issued under Section 143(2) of the Income-

    tax Act 1961 („Act‟). The procedure for handling
    „Limited Scrutiny‟ cases shall be as under:

    a. In Limited Scrutiny cases, the reasons/issues
    shall be forthwith communicated to the
    assessee concerned.

    b. The Questionnaire under Section 142(1) of the
    Act in „Limited Scrutiny‟ cases shall remain
    confined only to the specific reasons/issues for
    which case has been picked up for scrutiny.
    Further, the scope of enquiry shall be restricted
    to the Limited Scrutiny issues.

    c. These cases shall be completed expeditiously
    in a limited number of hearings.

    d. During the course of assessment proceedings
    in „Limited Scrutiny‟ cases, If it comes to the
    notice of the Assessing Officer that there is
    potential escapement of income exceeding Rs.
    five lakhs (for metro charges, the monetary

    WP(C) No.23165 of 2025 Page 32 of 85
    limit sha’l be Rs ten lakhs) requiring
    substantial verification on any other issue(s),
    then, the case may be taken up for „Complete
    Scrutiny‟ with the approval of the Pr. CIT/CIT
    concerned However, such an approval shall be
    accorded by the by the Principal CIT/CIT in
    writing after being satisfied about merits of the
    issue(s) necessitating „Complete Scrutiny‟ in
    that particular case Such cases shall be
    monitored by the Range Head concerned The
    procedure Indicated at points (a), (b) and (c)
    above shall no longer remain binding such
    cases (For the present purpose, Metro charges
    would mean Delhi Mumbai, Chennai, Kolkata,
    Bengaluru, Hyderabad and Ahmedabad).

    4. The Board further desires that in all cases under
    scrutiny, where the Assessing Officer proposes to
    make additions or disallowances, the assessee
    would be given a fair opportunity to explain his
    position on the proposed additions/disallowances in
    accordance with the principle of natural justice. In
    this regard, the Assessing Officer shall issue
    an appropriate show cause notice duly
    indicating the reasons for the proposed
    additions/disallowances along with necessary
    evidences/reasons forming the basis of the
    same. Before passing the final order against the
    proposed additions/disallowances, due
    consideration shall be given to the submissions
    made by the assessee in response to the show
    cause notice.

    WP(C) No.23165 of 2025 Page 33 of 85

    5. The contents of this Instruction should be
    immediately brought to the notice of ail concerned for
    strict compliance.

    6. Hindi version to follow.

    Sd/-

    (Ankita Pandey)
    Under Secretary to
    the Government of India”

    6.19. It is argued that the notice to show cause is also
    required to be communicated by following the manner
    provided under Section 282 of the IT Act, which reads
    thus:

    “282.Service of notice generally.–

    (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:

    (a) by post or by such courier services as may be
    approved by the Board; or

    (b) in such manner as provided under the Code of
    Civil Procedure
    , 1908 (5 of 1908) for the
    purposes of service of summons; or

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

    WP(C) No.23165 of 2025 Page 34 of 85

    (d) by any other means of transmission of
    documents as provided by rules made by the
    Board in this behalf.

    (2) The Board may make Rules providing for the
    addresses (including the address for electronic mail
    or electronic mail message) to which the
    communication referred to in sub-section (1) may be
    delivered or transmitted to the person therein
    named.”

    6.20. It is submitted by Sri Sidhartha Ray, learned Senior
    Advocate that by virtue of the Central Verification
    Scheme, 2019 vide Ministry of Finance (Department of
    Revenue), Central Board of Direct Taxes in Notification
    bearing No.5/2019/F. No.370142/22/2017-TPL (SO
    550(E), dated 30.01.2019 promulgated mechanism for
    ―issue and service of notice‖ in exercise of power
    conferred under Section 133C of the IT Act. Thus, he
    submitted that the manner prescribed under Section
    282
    as it existed prior to 2019 having not been adhered
    to, mere making statement in the Assessment Order that
    Notice under Section 148 was ―issued‖,
    contradistinguished with the word ―served‖, would not
    clothe the Assessing Officer to exercise the power and
    proceed with the assessment under Section 147 read
    with Section 144. It is canvassed before this Court by
    the learned Senior Advocate that service of notice by way
    of electronic mode could only be permissible in the year
    2019 and thereafter, but prior thereto as the
    WP(C) No.23165 of 2025 Page 35 of 85
    Department has to serve the notice by way of Registered
    Post to the address of the assessee. Such stance is
    fallacious, inasmuch as the documents enclosed with
    the written instruction placed by the Junior Standing
    Counsel does not reveal the fact of communication of
    notices by using electronic mode. Even otherwise much
    indication is available in Section 282 of the IT Act for the
    purpose of service of notice taking shelter of the
    provisions of the Information Technology Act, 2000. This
    Court, therefore, does not accede to the contentions
    advanced in this regard by the learned Senior Advocate.

    6.21. Nonetheless, cumulative reading of zimni orders of the
    proceeding and the statutory provisions as referred to
    above would unequivocally lead to suggest that the
    Assessing Officer was required to serve on the petitioner
    statutory Notice under Section 148. Perusal of written
    instruction of the Department as furnished by the
    Junior Standing Counsel does ex facie indicate that
    though Notice under Section 142 was sent by Speed Post
    on 23.10.2017 and 14.11.2017, the mode of despatch of
    the statutory Notice under Section 148 has not been
    mentioned and the same could not be clarified by the
    learned Junior Standing Counsel. It would not suffice by
    merely stating in the Assessment Order dated
    14.11.2017 (Annexure-5) that the Notice under Section
    148
    ―was issued to the assessee‖ without demonstrating

    WP(C) No.23165 of 2025 Page 36 of 85
    whether factually it was ―served‖ on the petitioner. In
    order to comprehend that the petitioner has been served
    with the Notice as required under Section 148, it is
    necessary to understand the meaning of ―issue of notice‖
    vis-a-vis ―service of notice‖.

    6.22. In R.K. Upadhyaya Vrs. Shanabhai P. Patel, (1987) 3 SCC
    96 the Hon’ble Supreme Court of India brought out clear
    distinction between the two expressions, viz., ―issue of
    notice‖ and ―service of notice‖ with the following
    observations:

    “2. The High Court has quashed the notice by accepting
    the assessee‟s contention that the action of the
    Income Tax Officer was barred by limitation
    prescribed by the Act. There is no dispute that the
    notice in this case under Section 147(b) of the Act
    was issued by registered post on March 31, 1970,
    and was received by the assessee on April 3, 1970.
    To the facts of the case, Section 147(b) of the Act
    applies. The two relevant provisions are in Sections
    148
    and 149 of the Act which provide:

    „148.

    (1) Before making the assessment, reassessment
    or recomputation under Section 147, the
    Income Tax Officer shall serve on the assessee
    a notice containing all or any of the
    requirements which may be included in a
    notice under sub-section (2) of Section 139; and
    the provisions of this Act shall, so far as may

    WP(C) No.23165 of 2025 Page 37 of 85
    be, apply accordingly as if the notice were a
    notice issued under that sub-section.

    (2) ***

    149.

    (1) No notice under Section 148 shall be issued,

    (a) ***

    (b) in cases falling under clause (b) of Section 147,
    at any time after the expiry of four years from
    the end of the relevant assessment year.

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

    The High Court relied upon the decision of this Court
    in the case of Banarsi Debi Vrs. ITO, AIR 1964 SC
    1742 = (1964) 7 SCR 539 where the validity of a
    notice under Section 34(1) of the Income Tax Act,
    1922 and the scope of Section 4 of the Income Tax
    (Amendment) Act of 1959 by which sub-section (4)
    was introduced into Section 34 were considered. The
    Court indicated, keeping the provisions of Section 34
    in view, that there was really no distinction between
    “issue” and “service of notice”. Section 34, sub-
    section (1) as far as relevant provided thus:

    “34.

               (1)    If--
    
               (a)    ***
    
               (b)    *** he may in cases falling under clause (a) at
    

    any time within 8 years and in cases falling
    WP(C) No.23165 of 2025 Page 38 of 85
    under clause (&) at any time within four years
    of the end of that year, serve on the assessee,
    … and may proceed to assess or reassess such
    income. …

    Section 34 conferred jurisdiction on the Income Tax
    Officer to reopen an assessment subject to service of
    notice within the prescribed period. Therefore,
    service of notice within limitation was the
    foundations of jurisdiction. The same view has been
    taken by this Court in J.P. Janni, ITO Vrs.
    Induprasad D. Bhatt, AIR 1964 SC 1742 = (1964) 7
    SCR 539 as also in CIT Vrs. Robert J. Sas, AIR 1964
    SC 1742 = (1964) 7 SCR 539. The High Court in our
    opinion went wrong in relying upon the ratio of
    Banarsi Debi Vrs. ITO, AIR 1964 SC 1742 = (1964) 7
    SCR 539 in disposing of the case in hand. The
    scheme of the 1961 Act so far as notice for
    reassessment is concerned is quite different. What
    used to be contained in Section 34 of the 1922 Act
    has been spread out into three sections, being
    Sections 147, 148 and 149 in the 1961 Act. A clear
    distinction has been made out between “issue
    of notice” and “service of notice” under the
    1961 Act. Section 149 prescribes the period of
    limitation. It categorically prescribes that no notice
    under Section 148 shall be issued after the
    prescribed limitation has lapsed. Section 148(1)
    provides for service of notice as a condition
    precedent to making the order of assessment. Once
    a notice is issued within the period of
    limitation, jurisdiction becomes vested in the
    Income Tax Officer to proceed to reassess. The
    mandate of Section 148(1) is that reassessment
    shall not be made until there has been service.

    WP(C) No.23165 of 2025 Page 39 of 85

    The requirement of issue of notice is satisfied
    when a notice is actually issued. In this case,
    admittedly, the notice was issued within the
    prescribed period of limitation as March 31, 1970,
    was the last day of that period. Service under the
    new Act is not a condition precedent to
    conferment of jurisdiction in the Income Tax
    Officer to deal with the matter but it is a
    condition precedent to making of the order of
    assessment. The High Court in our opinion lost sight
    of the distinction and under a wrong basis felt
    bound by the judgment in Banarsi Debi Vrs. ITO, AIR
    1964 SC 1742 = (1964) 7 SCR 539. As the Income
    Tax Officer had issued notice within
    limitations, the appeal is allowed and the
    order of the High Court is vacated. The Income
    Tax Officer shall now proceed to complete the
    assessment after complying with the
    requirements of law. Since there has been no
    appearance on behalf of the respondents, we make
    no orders for costs.”

    6.23. In CIT Vrs. Major Tikka Khushwant Singh, (1995) 212 ITR
    650 (SC) it has been observed as follows:

    “1. The point of law involved for decision in this appeal
    is already settled by the decision of this Court in
    R.K. Upadhyaya Vrs. Shanabhai P. Patel, (1987) 3
    SCC 96 = (1987) 166 ITR 163 (SC), in which it has
    been held that the issuance of a notice within the
    period of limitation gives jurisdiction to the Income
    Tax Officer to proceed to make the reassessment.

    2. A copy of the impugned order [Tikka Khushwant
    Singh Vrs. CIT, (1975) 101 ITR 106 (P&H)] made by

    WP(C) No.23165 of 2025 Page 40 of 85
    the High Court in the writ petition filed by the
    respondent has not been produced by the appellant.
    However, from the statement contained in the
    special leave petition, it appears that the High
    Court directed the Appellate Assistant
    Commissioner to decide the assessee’s appeal
    in accordance with law and in doing so to also
    ascertain when the notice under Section 148 of
    the Income Tax Act, 1961, had been dispatched
    by registered post. There is thus no occasion to
    interfere with the order made by the High
    Court.”

    6.24. In Commissioner of Income Tax Vrs. Vision Inc., 2012 SCC
    OnLine Del 3081 it has been observed as follows:

    “19. The above observations were approvingly cited by
    the Supreme Court in CIT Vrs. Jai Prakash Singh,
    (1996) 219 ITR 737. In addition, the Supreme Court
    also noticed its observations made earlier in Estate
    of Late Rangalal Jajodia Vrs. CIT, (1971) 79 ITR 505
    which are as under:

    „The lack of a notice does not amount to the revenue
    authority having had no jurisdiction to assess, but
    that the assessment was defective by reason of
    notice not having been given to her. An assessment
    proceeding does not cease to be a proceeding under
    the Act merely by reason of want of notice. It will be
    a proceeding liable to be challenged and corrected.‟

    20. Noticing the aforesaid two judgments, the Supreme
    Court in Jai Prakash Singh‟s case (supra) held as
    under:

    WP(C) No.23165 of 2025 Page 41 of 85

    „The principle that emerges from the above decision
    is that an omission to serve or any defect in the
    service of notices provided by procedural provisions
    does not efface or erase the liability to pay tax
    where such liability is created by distinct
    substantive provisions [charging sections]. Any such
    omission of defect may render the order made
    irregular-depending upon the nature of the provision
    not complied with-but certainly not void or illegal.‟

    21. The observations made in the judgments of the
    Federal Court (supra) [Chatturam Vrs. CIT, (1947) 15
    ITR 302] and the Supreme Court in the two
    judgments cited above are to be understood as
    reminders that whenever a case is set up by the
    assessee that there has been no valid or proper
    service of the notice issued under Section 143(2) of
    the Act, be it for the purpose of regular assessment
    under Section 143(3) of the Act or for the purpose of
    a block assessment under Chapter XIV-B or for the
    purpose of an assessment under Section 153A, such
    a plea has to be examined thoroughly and in-depth
    by taking a practical and reasonable view of the
    matter, not inconsistent with the statutory
    provisions, keeping in mind the basic principle that
    the liability to pay tax, which is founded on the
    charging provisions of the statute, is not to be
    nullified on specious or unjustified pleas taken by
    the assessee.”

    6.25. In Chatturam Vrs. CIT, (1947) 15 ITR 302 = 1947 SCC
    OnLine FC 9 = AIR 1947 FC 32 it was laid down as
    follows:

    WP(C) No.23165 of 2025 Page 42 of 85

    “It was next contended that in the present case notices
    under Section 22(1) and (2) of the Income-tax Act (1922)
    were already issued before the Notification of 26th May,
    1940. The notices were the foundation of the jurisdiction
    of the Income-tax Officer. At that time the Finance Act of
    1940 was not operative in the area in question and the
    Governor, by his Notification, cannot give jurisdiction to
    the Income-tax Officer in respect of his ultra vires notices.
    This contention is founded on a misunderstanding of the
    jurisdiction of the Income-tax Officer and the operation of
    the Income-tax Act. The income-tax assessment
    proceedings commence with the issue of a notice. The
    issue or receipt of a notice is not, however, the foundation
    of the jurisdiction of the Income-tax Officer to make the
    assessment or of the liability of the assessees to pay the
    tax. It may be urged that the issue and service of a notice
    under Section 22(1) or (2) may affect the liability under the
    penal clauses which provide for failure to act as required
    by the notice. The jurisdiction to assess and the liability to
    pay the tax, however, are not conditional on the validity of
    the notice. Suppose a person, even before a notice is
    published in the papers under Section 22(1), or before he
    receives a notice under Section 22(2) of the Income-tax
    Act, gets a form of return from the Income-tax Office and
    submits his return, it will be futile to contend that the
    Income-tax Officer is not entitled to assess the party or
    that the party is not liable to pay any tax because a notice
    had not been issued to him. The liability to pay the tax is
    founded on Sections 3 and 4 of the Income-tax Act, which
    are the charging sections. Section 22 etc., are the
    machinery sections to determine the amount of tax.

    Lord Dunedin in Whitney Vrs. Commissioners of Inland
    Revenue, (1926) A.C. 37 = 10 Tax Cas. 88 stated as
    follows:

    WP(C) No.23165 of 2025 Page 43 of 85

    „Now, there are three stages in the imposition of a tax.
    There is the declaration of liability, that is the part of the
    statute which determines what persons in respect of what
    property are liable. Next, there is the assessment. Liability
    does not depend on assessment, that ex hypothesi has
    already been fixed. But assessment particularizes the
    exact sum which a person liable has to pay. Lastly, come
    the methods of recovery if the person taxed does not
    voluntarily pay.‟

    In W.H. Cockerline & Co. Vrs. Commissioners of Inland
    Revenue, (1930) 16 Tax Cas. 1, at p. 19 [Not reported],
    Lord Hanworth, M.R., after accepting the passage from
    Lord Dunedin‟s judgment quoted above, observed as
    follows:

    „Lord Dunedin, speaking, of course, with accuracy as to
    these taxes, was not unmindful of the fact that it is the
    duty of the subject to whom a notice is given to render a
    return in order to enable the Crown to make an
    assessment upon him; but the charge is made in
    consequence of the Act, upon the subject; the assessment
    is only for the purpose of quantifying it.‟

    He quoted with approval the following passage from the
    judgment of Sargant, L.J., in the case of Williams:

    „I cannot see that the non-assessment prevents the
    incidence of the liability, though the amount of the
    deduction is not ascertained until assessment. The
    liability is imposed by the charging section, namely,
    Section 38 (of the English Act) the words of which are
    clear. The subsequent provisions as to assessment and so
    on are machinery only. They enable the liability to be
    quantified, and when quantified to be enforced against
    the subject, but the liability is definitely and finally

    WP(C) No.23165 of 2025 Page 44 of 85
    created by the charging section and all the materials for
    ascertaining it are available immediately.‟

    In Attorney-General Vrs. Aramayo and Others, (1925) 9
    Tax Cas. 445, it was held by the whole Court that there
    may be a waiver as to the machinery of taxation which
    inures against the subject.

    In India these well-considered pronouncements are
    accepted without reservation as laying down the true
    principles of taxation under the Income-tax Act. This
    contention of the appellants therefore fails.”

    6.26. It may be pertinent to have regard to CST Vrs. Subhash
    & Co., (2003) 3 SCC 454, wherein it has been observed
    as follows:

    “12. Whether service of notice is valid or not is
    essentially a question of fact. In the instant case,
    learned Single Judge found that certain procedures
    were not followed while effecting service by
    affixture. There was no finding recorded that such
    service was non est in the eye of the law. In a given
    case, if the assessee knows about the
    proceedings and there is some irregularity in
    the service of notice, the direction for
    continuing proceedings cannot be faulted. It
    would depend upon the nature of irregularity and its
    effect and the question of prejudice which are to be
    adjudicated in each case on the basis of surrounding
    facts. If, however, the service of notice is treated as
    non est in the eye of the law, it would not be
    permissible to direct de novo assessment without
    considering the question of limitation. There also the
    question of prejudice has to be considered.

    WP(C) No.23165 of 2025 Page 45 of 85

    ***

    15. The term “notice” originated from the Latin word
    “notifia” which means “a being known” or a knowing
    and is wide enough in legal circle to include a plaint
    filed in a suit. “Notice” has been defined in various
    judicial dictionaries and dictionaries as follows:

    The Judicial Dictionary, Words and Phrases
    Judicially Interpreted, 2nd Edn., by F. Stroud (p.
    1299)

    „Notice is a direct and definite statement of a thing,
    as distinguished from supplying materials from
    which the existence of such thing may be inferred.‟

    Webster‟s Universal College Dictionary, 1997 Edn.,
    (p. 543)

    „Information, warning or announcement of something
    impending; notification; to give notice of one’s
    intentions; a written or printed statement conveying
    such information or warning; as for renting or
    employment, that the agreement will terminate on a
    specified date — „She gave her employer two weeks‟
    notice.‟ ‟

    Oxford Concise Dictionary

    „an intimation; intelligence, warning” and has the
    meaning in the expression like “give notice”, “have
    notice” or “formal intimation of something or
    instruction to do something” and has the expression
    like “notice to quit”, “till further notice”.‟

    Chamber‟s 20th Century Dictionary, 1993 (p. 1154)

    WP(C) No.23165 of 2025 Page 46 of 85
    „intimation; announcement; information; warning; a
    writing, placard etc. conveying an intimation or
    warning; time allowed for preparation, etc.‟

    Chamber‟s Dictionary vide Allied Chambers (India)
    Ltd., Reprint 1994, 1995 (p. 1154)

    „intimation; announcement; a formal announcement
    made by one of the parties to a contract of his or her
    intention to terminate that contract; information,
    especially about a future event; warning; a writing;

    placard, board etc. conveying an intimation or
    warning; time allowed for preparation; cognizance;
    observation; heed; mention; a dramatic or artistic
    review; civility or respectful treatment; a notion etc.‟

    Law Lexicon Dictionary– A Legal Dictionary of Legal
    Terms and Phrases Judicially Defined, 4th Edn., Vol.
    II, 1989 (p. 226)

    „A person is said to have notice of a fact, when he
    actually knows that fact, or when, but for wilful
    abstention from an enquiry or search which he ought
    to have made, or gross negligence, he would have
    known it.‟

    The Law Lexicon Dictionary, 2nd Edn., 1997 (p.
    1322)

    (1) Intimation; a writing; placard, board etc.
    conveying an intimation or warning [Section
    154
    IPC and Article 61(2)(a), Constitution of
    India];

    (2) Knowledge or cognizance (Section 56, Indian
    Evidence Act).‟

    WP(C) No.23165 of 2025 Page 47 of 85

    16. “Notice”, in its legal sense, may be defined as
    information concerning a fact actually communicated
    to a party by an authorised person, or actually
    derived by him from a proper source, or else
    presumed by law to have been acquired by him,
    which information is regarded as equivalent to
    knowledge in its legal consequences. Dictionary
    further states : Co Lit 309 Tomlin’s Law Dictionary.

    17. Notice is making something known, of what a man
    was or might be ignorant of before. And it produces
    diverse effects, for, by it, the party who gives the
    same shall have the same benefit, which otherwise
    he should not have had; the party to whom the
    notice is given is made subject to some action or
    charge, that otherwise he had not been liable to; and
    his estate in danger of prejudice.

    18. “Notice is a direct and definite statement of a thing
    as distinguished from supplying materials from
    which the existence of such thing may be inferred.”
    (Per Parke, B. Burgh Vrs. Legge, (1839) 5 M&W 418 :

    8 LJ Ex 258 : 151 ER 177)

    19. The dictionary gives some other definitions of
    “notice” as:

    — The legal instrumentality by which knowledge
    is conveyed, or by which one is charged with
    knowledge.

    — The term “notice” in its full legal sense
    embraces a knowledge of circumstances that
    ought to induce suspicion or belief, as well as
    direct information of that fact.

    WP(C) No.23165 of 2025 Page 48 of 85

    — In its popular sense “notice” is equivalent to
    information intelligence, or knowledge.

    20. In Anandji Haridas and Co. (P) Ltd. Vrs. S.P.
    Kasture, AIR 1968 SC 565 it was observed as
    follows:

    „23. We are unable to accept the contention of Mr
    Gokhale that a notice under Section 11(4)(a) or
    11-A(1) is a condition precedent for initiating
    proceedings under those provisions or that it is
    the very foundation for the proceedings to be
    taken under those provisions. The notice
    contemplated under Rule 32 is not similar to a
    notice to be issued under Section 34(1)(b) of the
    Income Tax Act, 1922. All that Sections 11(4)
    and 11-A(1) prescribe is that before taking
    proceedings against an assessee under those
    provisions, he should be given a reasonable
    opportunity of being heard. In fact, those
    sections do not speak of any notice. But Rule
    32 prescribes the manner in which the
    reasonable opportunity contemplated by those
    provisions should be afforded to the assessee.

    The period of 30 days prescribed in Rule 32 is
    not mandatory. The rule itself says that
    „ordinarily‟ not less than 30 days‟ notice
    should be given. Therefore, the only question to
    be decided is whether the defects noticed in
    those notices had prejudiced the appellants. It
    may be noted that when the assessees
    received the notices in question, they appeared
    before the assessing authority, but they did not
    object to the validity of those notices. They
    asked for time for submitting their explanation.

    WP(C) No.23165 of 2025 Page 49 of 85

    The time asked for was given. Therefore, the
    fact that only nine days were given to them for
    submitting explanation could not have in any
    manner prejudiced them. So far as the mistake
    in the notice as regards the assessment year is
    concerned, the assessees kept silent about that
    circumstance till 1958. It was only when they
    were sure that the period of limitation
    prescribed by Section 11-A had expired, they
    brought that fact to the notice of the assessing
    authority. It is clear that the appellants were
    merely trying to take advantage of the
    mistakes that had crept into the notices. They
    cannot be permitted to do so. We fail to see
    why those notices are not valid in respect of
    the periods commencing from 01.02.1953 till
    31.10.1955. We are unable to agree with Mr
    Gokhale’s contention that each one of those
    notices should be read separately and that we
    should not consider them together. If those
    notices are read together as we think they
    should be, then it is clear that those notices
    give the appellants the reasonable opportunity
    contemplated by Sections 11(4)(a) and 11-A(1).
    In Chatturam Vrs. CIT, (1947) 15 ITR 302 =
    AIR 1947 FC 32 the Federal Court held
    that any irregularity in issuing a notice
    under Section 22 of the Income Tax Act,
    1922 does not vitiate the proceeding; that
    the income tax assessment proceedings
    commence with the issue of the notice but
    the issue or receipt of the notice is,
    however, not the foundation of the
    jurisdiction of the Income Tax Officer to
    make the assessment or of the liability of
    WP(C) No.23165 of 2025 Page 50 of 85
    the assessee to pay the tax. The liability
    to pay the tax is founded on Sections 3
    and 4 of the Income Tax Act which are the
    charging sections. Section 22 and others are
    the machinery sections to determine the
    amount of tax. The ratio of that decision applies
    to the facts of the present case. In our opinion,
    the notices issued in the year 1955 are valid
    notices so far as they relate to the period
    commencing from 01.02.1953 to 31.10.1955.”

    21. Whenever an order is struck down as invalid
    being violative of principles of natural justice,
    there is no final decision of the case and,
    therefore, proceedings are left open. All that is
    done is that the order assailed by virtue of its
    inherent defect is vacated but the proceedings are
    not terminated. [See Guduthur Bros. Vrs. ITO, (1960)
    40 ITR 298 = AIR 1960 SC 1326 and Supdt. (Tech. I),
    Central Excise Vrs. Pratap Rai, (1978) 3 SCC 113.]

    In CST Vrs. R.P. Dixit Saghidar, (2001) 9 SCC 324 it
    was held as follows:

    „5. We are unable to subscribe to the view of the
    High Court. The aforementioned passage
    quoted from the Tribunal‟s order shows that
    the Tribunal was of the view that once the
    order is quashed by the Assistant
    Commissioner, he could not in law remand the
    case for a decision afresh. As has been noted,
    before the Assistant Commissioner the counsel
    for the respondent had contended that the ex
    parte order should have been set aside
    because no notice had been received. When
    principles of natural justice are stated to
    WP(C) No.23165 of 2025 Page 51 of 85
    have been violated it is open to the
    Appellate Authority, in appropriate cases,
    to set aside the order and require the
    assessing officer to decide the cases de
    novo. This is precisely what was directed by
    the Assistant Commissioner and the Tribunal,
    in our opinion, was clearly in error in taking a
    contrary view.‟

    This view is clearly applicable to the facts of the
    present case.

    22. The emerging principles are:

    (i) Non-issue of notice or mistake in the issue of
    notice or defective service of notice does not
    affect the jurisdiction of the assessing officer, if
    otherwise reasonable opportunity of being
    heard has been given.

    (ii) Issue of notice as prescribed in the Rules
    constitutes a part of reasonable opportunity of
    being heard.

    (iii) If prejudice has been caused by non-issue or
    invalid service of notice the proceeding would
    be vitiated. But irregular service of notice
    would not render the proceedings invalid; more
    so, if the assessee by his conduct has rendered
    service impracticable or impossible.

    (iv) In a given case when the principles of natural
    justice are stated to have been violated it is
    open to the Appellate Authority in appropriate
    cases to set aside the order and require the
    assessing officer to decide the case de novo.”

    WP(C) No.23165 of 2025 Page 52 of 85

    6.27. In Commercial Tax Officer Vrs. Neeraja Pipes Pvt. Ltd.,
    2023 SCC OnLine SC 267 it has been said as follows:

    “18. In Sri Budhia Swain Vrs. Gopinath Deb, (1999) 2
    SCR 1189 similarly, the court observed as follows:

    „As already noted the appellants sought for review
    or recall of the order from the O.E.A. Collector solely
    by alleging that the notice which was required to be
    published in the locality before settling the land in
    favour of the respondent No. 1 was not served in
    accordance with the manner prescribed by law. The
    appellants did not plead „non-service of the notice‟
    but raised objection only with regard to „the manner
    of service of the notice‟. The High court had called for
    and perused the record of the O.E.A. Collector and
    noted that the notice was issued on 15.12.1963
    inviting public objection. The notice was available on
    record but some of its pages were missing. The
    O.E.A. Collector had noted in his order dated
    23.2.1966 as under:

    „It is only due to missing of some pages of the
    proclamation- including the last page over which the
    report of the process server was there, a scope was
    available to the objectors to file this petition. Under
    the above circumstances, it is not necessary to issue
    another proclamation and entertain further objection
    since the case is being heard and going to be
    finalised on 14.03.1966.‟

    The O.E.A. Collector was satisfied of the notice
    having been published. Assuming that the notice
    was not published in the manner contemplated
    by law, it will at best be a case of irregularity

    WP(C) No.23165 of 2025 Page 53 of 85
    in the proceedings but certainly not a fact
    striking at the very jurisdiction of the
    authority passing the order. The Appellate
    Authority, i.e., the ADM has in his order noted two
    other contentions raised by the appellants, viz., (i)
    the application for settlement by the respondent No.
    1 was not filed within the prescribed time, and (2)
    the application should have been treated as an
    application for lease and should not have been
    treated as a claim case. None of the two pleas was
    raised by the appellants in their pleadings. None of
    the two was urged before O.E.A. Collector. Therefore,
    there was no occasion to consider those pleas. Still
    we may make it clear that none of the two pleas
    could have been a ground for recalling the order
    which was otherwise within the jurisdiction
    conferred on the O.E.A. Collector…‟

    19. In the present case, arguendo if the assessee was
    unaware, in the first instance regarding the issuance
    of assessment orders against it, at least when the
    revenue filed a writ petition (W.P. No. 25943/2011)
    complaining about Canara Bank’s proposal to
    auction the assessee‟s properties, it had impleaded
    the assessee too. In the pleadings, there was a
    specific mention about the assessment orders, them
    having become final, and why those demands had
    to be given primacy as revenue dues, over and
    above the bank‟s dues. The assessee was served in
    those writ proceedings; however, it did not dispute
    the revenue‟s contention. This, in the opinion of the
    court is a telling aspect, as it highlights the
    assessee‟s conduct in deliberately choosing to keep
    quiet, even when it could have raised a grievance.”

    WP(C) No.23165 of 2025 Page 54 of 85

    6.28. Sri Sidhartha Ray, learned Senior Advocate in order to
    buttress his submission that non-service of notice would
    vitiate the assessment proceeding as the exercise of
    power would be without jurisdiction relied on Muralidhar
    Gopikishan (P) Ltd. Vrs. State of Odisha, (1999) 116 STC
    308 (Ori) = 1990 SCC OnLine Ori 399. Said decision was
    rendered in the setting of provisions contained in Rule
    12(2) of the Central Sales Tax (Odisha) Rules, 1957 read
    with Rule 84 of the Odisha Sales Tax Rules, 1947. Since
    factual scenario in the instant case and the provisions of
    statute are distinguishable, ratio of said judgment has
    no application; this is particularly so, in view
    subsequent decisions of Hon’ble Supreme Court of India
    referred to above.

    6.29. In the present case, as it reveals from the written
    instructions provided to the Junior Standing Counsel by
    the Department that Notice under Section 148 of the IT
    Act was issued on 29.03.2017 and despatched on
    29.03.2012 vide Serial No.11536 maintained in the
    Despatch Register. Such fact remained uncontroverted
    by the learned Senior Advocate who was served with a
    copy such written instruction during the course of
    hearing. It is further noticed from the said written
    instructions that Notice dated 14.06.2017 under Section
    142(1)
    was despatched vide Serial No.2065 of Despatch
    Register and further Notice dated 23.10.2017 under

    WP(C) No.23165 of 2025 Page 55 of 85
    Section 142(1) was also despatched by Speed Post vide
    Serial No.8319 of Despatch Register. The impugned
    Assessment Order (Annexure-5) and the Demand Notice
    (Annexure-5A) were sent by Speed Post vide Serial
    No.9337 of Despatch Register. No rebuttal is placed by
    the petitioner to show that such notices and assessment
    order were not sent by Speed Post. A presumption under
    Section 27 of the General Clauses Act, 18971 is available
    in favour of the opposite parties with regard to
    sufficiency of the service of notice inasmuch as it has
    been proved that the opposite party had sent the notice
    by Registered Post in the address of the petitioner and
    the same did not return. See, Suman Chatterjee Vrs. Lina
    Roy Tappadar, 2016 (I) OLR 254.

    6.30. Burden is cast on the assessee to demonstrate that
    Notice dated 23.10.2017 under Section 142(1)
    despatched by Speed Post vide Serial No.8319 of
    Despatch Register was not served. As said notice is
    presumed to have been served, the proceeding for
    reassessment under Section 148 can also be said to be
    within his knowledge. At this juncture reference to Order

    1 Section 27 of the General Clauses Act, 1897 stands as follows:

    “27. Meaning of service by post.–

    Where any Central Act or Regulation made after the commencement of this
    Act authorizes or requires any document to be served by post, whether the
    expression “serve” or either of the expressions “give” or “send” or any
    other expression is used, then, unless a different intention appears, the
    service shall be deemed to be effected by properly addressing, pre-paying
    and posting by registered post, a letter containing the document, and,
    unless the contrary is proved, to have been effected at the time at which
    the letter would be delivered in the ordinary course of post.”

    WP(C) No.23165 of 2025 Page 56 of 85

    V, Rule 9 of the Code of Civil Procedure, 1908 may not
    be inept:

    “9. Delivery of summons by Court.–

    (1) Where the defendant resides within the jurisdiction
    of the Court in which the suit is instituted, or has an
    agent resident within that jurisdiction who is
    empowered to accept the service of the summons,
    the summons shall, unless the Court otherwise
    directs, be delivered or sent either to the proper
    officer to be served by him or one of his subordinates
    or to such courier services as are approved by the
    Court.

    (2) The proper officer may be an officer of a Court other
    than that in which the suit is instituted, and, where
    he is such an officer, the summons may be sent to
    him in such manner as the Court may direct.

    (3) The services of summons may be made by
    delivering or transmitting a copy thereof by
    registered post acknowledgment due, addressed to
    the defendant or his agent empowered to accept the
    service or by speed post or by such courier services
    as are approved by the High Court or by the Court
    referred to in sub-rule (1) or by any other means of
    transmission of documents (including fax message
    or electronic mail service) provided by the rules
    made by the High Court:

    Provided that the service of summons under this
    sub-rule shall be made at the expenses of the
    plaintiff.

    WP(C) No.23165 of 2025 Page 57 of 85

    (4) Notwithstanding anything contained in sub-rule (1),
    where a defendant resides outside the jurisdiction of
    the Court in which the suit is instituted, and the
    Court directs that the service of summons on that
    defendant may be made by such mode of service of
    summons as is referred to in sub-rule (3) (except by
    registered post acknowledgment due), the provisions
    of Rule 21 shall not apply.

    (5) When an acknowledgment or any other receipt
    purporting to be signed by the defendant or his
    agent is received by the Court or postal article
    containing the summons is received back by the
    Court with an endorsement purporting to have been
    made by a postal employee or by any person
    authorised by the courier service to the effect that
    the defendant or his agent had refused to take
    delivery of the postal article containing the summons
    or had refused to accept the summons by any other
    means specified in sub-rule (3) when tendered or
    transmitted to him, the Court issuing the summons
    shall declare that the summons had been duly
    served on the defendant:

    Provided that where the summons was properly
    addressed, pre-paid and duly sent by registered
    post acknowledgment due, the declaration
    referred to in this sub-rule shall be made
    notwithstanding the fact that the
    acknowledgment having been lost or mislaid,
    or for any other reason, has not been received
    by the Court within thirty days from the date
    of issue of summons.

    WP(C) No.23165 of 2025 Page 58 of 85

    (6) The High Court or the District Judge, as the case
    may be, shall prepare a panel of courier agencies for
    the purposes of sub-rule (1).”

    6.31. On 29.03.2017 the Assessing Authority has recorded
    satisfaction as to ―reason to believe‖ to initiate
    proceeding for assessment under Section 147 by issue of
    notice under Section 148.

    6.32. Zimni orders maintained in the proceedings would show
    that steps are being taken at the end of the Assessing
    Officer for ensuring presence of the assessee. It is not
    denied by the learned Senior Advocate that the
    Assessing Officer had issued Notice under Section 148 of
    the IT Act within period stipulated in the statute and
    passed the Assessment Order within the period of
    limitation. Only contention of the petitioner as reflected
    in the writ petition was neither notice under Section 148
    nor the Assessment Order under Section 147 was ever
    served.

    6.33. In order to perceive the veracity of such contention,
    minute reading of pleading of writ petition would reveal
    that it had the knowledge of Assessment Order prior to
    initiation of proceeding for attachment. In paragraph 3.4
    of the writ petition it has been candidly stated thus:

    “That the Assessing Officer subsequently initiated the
    penalty proceeding by issuing a show cause on the
    petitioner and the petitioner appeared in the penalty

    WP(C) No.23165 of 2025 Page 59 of 85
    proceeding and the Assessing Officer passed an
    order levying penalty under Section 271-C of the IT
    Act on 13.04.2018. However the petitioner was never
    served any notice in the reassessment proceeding
    initiated under Section 147 of the IT Act for the
    assessment year 2012-13.”

    6.34. In 2018 itself as it appears from the above narration of
    fact, the petitioner had the knowledge about Assessment
    Order being passed. It can safely be said that it is not a
    case of time-barred assessment; nevertheless, it is a case
    of non-service of statutory notice on the petitioner. The
    documents furnished by the learned Junior Standing
    Counsel reveals that the statutory notice was issued as
    per the entry reflected in the Despatch Register. To
    support such observation reference to Section 149 of the
    IT Act would be relevant. A glance at sub-section (1) of
    Section 149 would indicate that the limitation would
    commence and/or be computed by taking into account
    ―issue‖ (but not, ―service‖) of notice under Section 148.
    The period under assessment is assessment year 2012-

    13. End of the relevant assessment year is 31.03.2013.
    The income chargeable to tax which has escaped
    assessment in the present case is more than one lakh
    rupees for that year. The notice under Section 148 of the
    IT Act was issued on 29.03.2017. Thus, the initiation of
    proceeding for assessment under Section 147 is within
    six years as stipulated under clause (b) of sub-section (1)
    of Section 149.

    WP(C) No.23165 of 2025 Page 60 of 85

    6.35. In view of the proposition of law as exposited by different
    Courts including the Hon’ble Supreme Court of India as
    referred to supra it cannot be gainsaid that being not
    able to place evidence as to the service of notice under
    Section 148 of the IT Act, the impugned assessment
    proceeding is not vitiated. It is significant to note that
    the words ―shall be issued‖ have been employed in
    Section 149(1) of the IT Act. In this context for the
    purpose of proceeding with assessment as it is
    requirement under Section 148 of the IT Act that the
    assessee ―shall be served‖ with a notice before making
    assessment, it is prudent to set aside the Assessment
    Order along with the Demand Notice vide Annexure-5
    and Annexure-5A in order to give chance to the
    petitioner to have his say with respect to reason for the
    assessment.

    7. It may be of relevance to have clear idea about the
    ―jurisdiction‖ so that a decision can be taken on the
    question whether by issue of notice under Section 148 of
    the IT Act on 29.03.2017 the Assessing Officer did not
    lose jurisdiction to assess, notwithstanding the claim of
    the petitioner that the assessee was not served with
    such notice in view of explicit provisions contained in
    Section 149 of the IT Act specifically providing for ―issue‖
    of notice under Section 148.

    WP(C) No.23165 of 2025 Page 61 of 85

    7.1. This Court derives the connotation of ―jurisdiction‖ as
    lucidly explained in the case of Foreshore Co-operative
    Housing Society Limited Vrs. Praveen D. Desai, (2015) 5
    SCR 1075 in the following terms:

    “41. The term „jurisdiction‟ is a term of art; it is an
    expression used in a variety of senses and draws
    colour from its context. Therefore, to confine the term
    „jurisdiction‟ to its conventional and narrow meaning
    would be contrary to the well settled interpretation
    of the term. The expression „jurisdiction‟, as stated in
    Halsbury‟s Laws of England, Volume 10, paragraph
    314, is as follows:

    „314. Meaning of ‘jurisdiction’: By ‘jurisdiction’ is
    meant the authority which a court has to
    decide matters that are litigated before it or to
    take cognisance of matters presented in a
    formal way for its decision. The limits of this
    authority are imposed by the statute, charter or
    commission under which the court is
    constituted, and may be extended or restricted
    by similar means. If no restriction or limit is
    imposed the jurisdiction is said to be unlimited.
    A limitation may be either as to the kind and
    nature of the claims and matters of which the
    particular court has cognisance, or as to the
    area over which the jurisdiction extends, or it
    may partake of both these characteristics.‟

    42. In American Jurisprudence, Volume 32A, paragraph
    581, it is said that,

    „Jurisdiction is the authority to decide a given case
    one way or the other. Without jurisdiction, a court
    WP(C) No.23165 of 2025 Page 62 of 85
    cannot proceed at all in any case; jurisdiction is the
    power to declare law, and when it ceases to exist,
    the only function remaining to a court is that of
    announcing the fact and dismissing the cause.”

    Further, in paragraph 588, it is said that lack of
    jurisdiction cannot be waived, consented to, or
    overcome by agreement of the parties.

    43. It is well settled that essentially the jurisdiction is an
    authority to decide a given case one way or the
    other. Further, even though no party has raised
    objection with regard to jurisdiction of the court, the
    court has power to determine its own jurisdiction. In
    other words, in a case where the Court has no
    jurisdiction; it cannot confer upon it by consent or
    waiver of the parties.

    44. Section 3 of the Limitation Act, 1963 clearly provides
    that every suit instituted, appeal preferred and
    application made after the prescribed period of
    limitation, subject to the provisions contained in
    Sections 4 to 24, shall be dismissed although the
    limitation has not been set up as a defence.

    45. A Constitution Bench of five Judges of this Court in
    the case of Pandurang Dhondi Chougule Vrs. Maruti
    Hari Jadhav, 1966 SC 153, while dealing with the
    question of jurisdiction, observed that a plea of
    limitation or plea of res judicata is a plea of law
    which concerns the jurisdiction of the court which
    tries the proceeding. The Bench held:

    „10. The provisions of Section 115 of the Code have
    been examined by judicial decisions on several
    occasions. While exercising its jurisdiction
    under Section 115, it is not competent to the

    WP(C) No.23165 of 2025 Page 63 of 85
    High Court to correct errors of fact however
    gross they may, or even errors of law, unless
    the said errors have relation to the jurisdiction
    of the court to try the dispute itself. As clauses

    (a), (b) and (e) of Section 115 indicate, it is only
    in cases where the subordinate court has
    exercised a jurisdiction not vested in it by law,
    or has failed to exercise a jurisdiction so
    vested, or has acted in the exercise of its
    jurisdiction illegally or with material
    irregularity that the revisional jurisdiction of
    the High Court can be properly invoked. It is
    conceivable that points of law may arise in
    proceedings instituted before subordinate
    courts which are related to questions of
    jurisdiction. It is well settled that a plea of
    limitation or a plea of res judicata is a plea of
    law which concerns the jurisdiction of the court
    which tries the proceedings. A finding on these
    pleas in favour of the party raising them would
    oust the jurisdiction of the court, and so, an
    erroneous decision on these pleas can be said
    to be concerned with questions of jurisdiction
    which fall within the purview of Section 115 of
    the Code. But an erroneous decision on a
    question of law reached by the subordinate
    court which has no relation to questions of
    jurisdiction of that court, cannot be corrected by
    the High Court under Section 115.‟

    46. In the case of Manick Chandra Nandy Vrs. Debdas
    Nandy, (1986) 1 SCC 512, this Court, while
    considering the nature and scope of High Court‟s
    revisional jurisdiction in a case where a plea was
    raised that the application under Order IX Rule 13

    WP(C) No.23165 of 2025 Page 64 of 85
    was barred by limitation, held that a plea of
    limitation concerns the jurisdiction of the court which
    tries a proceeding for a finding on this plea in favour
    of the party raising it would oust the jurisdiction of
    the court. In the case of National Thermal Power
    Corpn. Ltd. Vrs. Siemens Atkeingesellschaft, (2007)
    4 SCC 451, this Court considering the similar
    question under the Arbitration and Conciliation Act
    held as under:

    „17. In the larger sense, any refusal to go into the
    merits of a claim may be in the realm of
    jurisdiction. Even the dismissal of the claim as
    barred by limitation may in a sense touch on
    the jurisdiction of the court or tribunal. When a
    claim is dismissed on the ground of it being
    barred by limitation, it will be, in a sense, a
    case of the court or tribunal refusing to exercise
    jurisdiction to go into the merits of the claim. In
    Pandurang Dhoni Chougule Vrs. Maruti Hari
    Jadhav this Court observed that: (AIR p. 155,
    para 10)

    „It is well settled that a plea of limitation or a
    plea of res judicata is a plea of law which
    concerns the jurisdiction of the court which
    tries the proceedings. A finding on these pleas
    in favour of the party raising them would oust
    the jurisdiction of the court, and so, an
    erroneous decision on these pleas can be said
    to be concerned with questions of jurisdiction
    which fall within the purview of Section 115 of
    the Code.‟

    47. In the case of Official Trustee Vrs. Sachindra Nath
    Chatterjee, AIR 1969 SC 823, a three Judges Bench
    WP(C) No.23165 of 2025 Page 65 of 85
    of this Court while deciding the question of
    jurisdiction of the Court under the Trust Act
    observed:

    „15. From the above discussion it is clear that
    before a Court can be held to have jurisdiction
    to decide a particular matter it must not only
    have jurisdiction to try the suit brought but
    must also have the authority to pass the orders
    sought for. It is not sufficient that it has some
    jurisdiction in relation to the subject-matter of
    the suit. Its jurisdiction must include the power
    to hear and decide the questions at issue, the
    authority to hear and decide the particular
    controversy that has arisen between the
    parties.‟

    48. In the case of ITW Signode India Ltd. Vrs. CCE,
    (2004) 3 SCC 48, a similar question came before a
    three Judges Bench of this Court under the Central
    Excise Act, 1944
    , when this Court opined as under:

    „69. The question of limitation involves a question of
    jurisdiction. The finding of fact on the question
    of jurisdiction would be a jurisdictional fact.
    Such a jurisdictional question is to be
    determined having regard to both fact and law
    involved therein. The Tribunal, in our opinion,
    committed a manifest error in not determining
    the said question, particularly, when in the
    absence of any finding of fact that such short-
    levy of excise duty related to any positive act
    on the part of the appellant by way of fraud,
    collusion, wilful misstatement or suppression of
    facts, the extended period of limitation could
    not have been invoked and in that view of the
    WP(C) No.23165 of 2025 Page 66 of 85
    matter no show-cause notice in terms of Rule
    10 could have been issued.‟

    49. In the case of Kamlesh Babu Vrs. Lajpat Rai
    Sharma, (2008) 12 SCC 577, the matter came to this
    Court when the trial court dismissed the suit on
    issues other than the issue of limitation. The Bench
    held:

    „23. The reasoning behind the said proposition is
    that certain questions relating to the
    jurisdiction of a court, including limitation, goes
    to the very root of the court‟s jurisdiction to
    entertain and decide a matter, as otherwise,
    the decision rendered without jurisdiction will
    be a nullity. However, we are not required to
    elaborate on the said proposition, inasmuch as
    in the instant case such a plea had been raised
    and decided by the trial court but was not
    reversed by the first appellate court or the High
    Court while reversing the decision of the trial
    court on the issues framed in the suit. We,
    therefore, have no hesitation in setting aside
    the judgment and decree of the High Court and
    to remand the suit to the first appellate court to
    decide the limited question as to whether the
    suit was barred by limitation as found by the
    trial court. Needless to say, if the suit is found
    to be so barred, the appeal is to be dismissed.
    If the suit is not found to be time-barred, the
    decision of the first appellate court on the other
    issues shall not be disturbed.‟

    50. Mr. Shekhar Naphade, learned senior counsel
    appearing for the respondent relied upon a recent
    decision of a Division Bench of this Court in Civil
    WP(C) No.23165 of 2025 Page 67 of 85
    Appeal No. 1085 of 2015 (Kamalakar Eknath
    Salunkhe Vrs. Baburav Vishnu Javalkar & Ors.)
    where this Court while considering Section 9A of the
    Maharashtra Amendments of CPC observed that the
    expression „jurisdiction‟ in Section 9A is used in a
    narrow sense i.e. territorial and pecuniary
    jurisdiction and not question of limitation. The Court
    observed:

    „17. The expression „jurisdiction‟ in Section 9A is
    used in a narrow sense, that is, the Court’s
    authority to entertain the suit at the threshold.
    The limits of this authority are imposed by a
    statute, charter or commission. If no restriction
    is imposed, the jurisdiction is said to be
    unlimited. The question of jurisdiction, sensu
    stricto, has to be considered with reference to
    the value, place and nature of the subject
    matter. The classification into territorial
    jurisdiction, pecuniary jurisdiction and
    jurisdiction over the subject-matter is of a
    fundamental character. Undoubtedly, the
    jurisdiction of a Court may get restricted by a
    variety of circumstances expressly mentioned
    in a statute, charter or commission. This
    inherent jurisdiction of a Court depends upon
    the pecuniary and territorial limits laid down
    by law and also on the subject-matter of the
    suit. While the suit might be barred due to
    noncompliance of certain provisions of law, it
    does not follow that the non-compliance with
    the said provisions is a defect which takes
    away the inherent jurisdiction of the Court to
    try a suit or pass a decree. The law of
    limitation operates on the bar on a party to

    WP(C) No.23165 of 2025 Page 68 of 85
    agitate a case before a Court in a suit, or other
    proceedings on which the Court has inherent
    jurisdiction to entertain but by operation of the
    law of limitation it would not warrant
    adjudication.

    19. Thus, with the intention to put the aforesaid
    practice to rest, the State Legislature
    introduced Section 9A by the amendment Act of
    1969 requiring the Court to decide the issue of
    jurisdiction at the time of granting or vacating
    the interim relief. In other words, the legislature
    inserted Section 9A to ensure that a suit which
    is not maintainable for want of jurisdiction of
    the concerned Court, ought not be tried on
    merits without first determining the question of
    maintainability of the suit as to jurisdiction of
    the Court, approached by the plaintiff, as a
    preliminary issue.

    20. The provision contemplates that when an issue
    of jurisdiction is raised, the said issue should
    be decided at first as expeditiously as possible,
    and not be adjourned to a later date. The
    primary reason is that if the Court comes to
    finding that it does not have jurisdiction vested
    in it in law, then no further enquiry is needed
    and saves a lot of valuable judicial time.

    21. A perusal of the Statement of Object and
    Reasons of the Amendment Act would clarify
    that Section 9A talks of maintainability only on
    the question of inherent jurisdiction and does
    not contemplate issues of limitation. Section 9A
    has been inserted in the Code to prevent the
    abuse of the Court process where a plaintiff
    WP(C) No.23165 of 2025 Page 69 of 85
    drags a defendant to the trial of the suit on
    merits when the jurisdiction of the Court itself
    is doubtful.

    22. In the instant case, the preliminary issue
    framed by the Trial Court is with regard to the
    question of limitation. Such issue would not be
    an issue on the jurisdiction of the Court and,
    therefore, in our considered opinion, the Trial
    Court was not justified in framing the issue of
    limitation as a preliminary issue by invoking its
    power under Section 9A of the Code. The High
    Court has erred in not considering the statutory
    ambit of Section 9A while approving the
    preliminary issue framed by the Trial Court
    and thus, rejecting the writ petition filed by the
    appellant.‟ ***”

    7.2. The Hon’ble Supreme Court of India has succinctly made
    it clear regarding objection as to jurisdiction in the case
    of Harshad Chiman Lal Modi Vrs. DLF Universal Ltd. and
    another, (2005) 7 SCC 791 with the following
    observations:

    “30. We are unable to uphold the contention. The
    jurisdiction of a court may be classified into several
    categories. The important categories are–

    (i) Territorial or local jurisdiction;

    (ii) Pecuniary jurisdiction; and

    (iii) Jurisdiction over the subject-matter.

    So far as territorial and pecuniary jurisdictions are
    concerned, objection to such jurisdiction has to be
    WP(C) No.23165 of 2025 Page 70 of 85
    taken at the earliest possible opportunity and in any
    case at or before settlement of issues. The law is
    well settled on the point that if such objection is not
    taken at the earliest, it cannot be allowed to be
    taken at a subsequent stage. Jurisdiction as to
    subject-matter, however, is totally distinct and
    stands on a different footing. Where a court has no
    jurisdiction over the subject-matter of the suit by
    reason of any limitation imposed by statute, charter
    or commission, it cannot take up the cause or matter.
    An order passed by a court having no jurisdiction is
    nullity.”

    7.3. With the above perspective, when the present matter is
    examined, it emanates that the Assessing Officer in
    order to assess escaped income under Section 147 for
    the assessment year 2012-13, initiated proceeding on
    29.03.2017 by exercising power conferred under Section
    148
    read with Section 149. The alleged non-service of
    notice would not deter the Assessing Officer from
    exercising power under Section 148. The learned Junior
    Standing Counsel on written instruction could
    demonstrate that the Notice dated 29.03.2017 was
    issued after recording reason to believe that there was
    escapement of income and such notice was despatched.
    However, he could not throw light on the mode of
    despatch. Yet, it could be shown that a Notice dated
    23.10.2017 under Section 142(1) was issued for
    production of books of account, etc. by Speed Post with
    delivery report. Therefore, it is obvious that the

    WP(C) No.23165 of 2025 Page 71 of 85
    petitioner-assessee was aware of assessment
    proceedings, namely proceeding under Section 148, was
    pending on the date of service of such Notice under
    Section 142(1). The petitioner, however, chose not to
    participate by producing such evidence as required by
    the Assessing Officer. Furthermore, the fact of
    participation in the year 2018 in course of the penalty
    proceeding under Section 271C of the IT Act has been
    admitted by the petitioner. Since the mode of service of
    statutory notice could not be established by the opposite
    parties, the Assessment Order dated 14.11.2017 is liable
    to be set aside for violation of principles of natural
    justice.

    Conclusion:

    8. At paragraph 3.12 of the writ petition the petitioner has
    asserted as follows:

    “The petitioner-assessee asserts that no Notice under
    Section 148 was served on him as well as the order of
    assessment was never served on the Assessee. Therefore
    the initiation of the assessment proceeding and the order
    of assessment is in gross violation of rules of natural
    justice as well as the mandates of statute and hence the
    order of assessment is liable to be quashed. Since the
    assessee came to know about the demand only after the
    initiation of the recovery proceeding, the delay caused in
    approaching this Hon‟ble Court is liable to be condoned.”

    WP(C) No.23165 of 2025 Page 72 of 85

    8.1. However, such a contention is falsified by assertion
    made in paragraph 3.4 of the writ petition wherein it has
    been admitted that after Assessment Order dated
    14.11.2017 being passed under Section 147 of the IT
    Act, upon initiation of proceeding for imposition of
    penalty under Section 271C by issue of a show cause
    notice, the petitioner appeared in the penalty proceeding
    and the Assessing Officer passed an order imposing
    penalty under Section 271C of the IT Act on 13.04.2018.

    8.2. It is, thus, emanated that there was violation of
    principles of natural justice due to non-service of
    statutory Notice under Section 148 of IT Act. No pleading
    is available to contend that no notice was ―issued‖ under
    Section 148. It is seen that such statutory notice has
    been issued within the period of limitation stipulated
    under Section 149 of the IT Act. Had it been a case of
    ―no notice‖ the matter would have been different in view
    of Orissa Stores Vrs. State of Odisha, 1990 SCC OnLine
    Ori 407, wherein in answer to question of law “whether,
    on the facts and in the circumstances of the case, the
    learned Tribunal was justified in remanding the matter for
    fresh assessment instead of annulling the entire
    assessment?”, this Court held,

    “5. No assessment can be completed without
    notice. Order without notice is liable to be
    vacated. Order being vacated proceeding

    WP(C) No.23165 of 2025 Page 73 of 85
    remains pending. It is true that limitation fixed
    would not be attracted to fresh order of assessment
    made or passed under section 23 as is provided in
    the third proviso to section 12(7). But such fresh
    assessment means where notice had been validly
    served. On the assessment order being set aside it
    goes to the stage where the defect or deficiency is
    found out. Where the defect or deficiency as found
    affects the jurisdiction as in the case of absence of
    notice, protection under third proviso is not
    available. Merely because the Tribunal sets aside
    the order of assessment under Section 23 for
    absence of notice, the third proviso cannot give
    protection to Revenue. Accordingly, as on April 16,
    1974, completion of assessment has become barred
    by limitation and there was no scope for any
    assessment.”

    8.3. In the present case, as the initiation of proceeding under
    Section 148 by issue of Notice dated 29.03.2017 and
    passing the Assessment Order dated 14.11.2017 under
    Section 147 read with Section 144 of the Income Tax
    Act, 1961 with respect to assessment year 2012-13 is
    not hit by limitation under Section 149, on appreciating
    that statutory notice being not served on the petitioner
    as required under Section 148 of the IT Act before
    assessment under Section 147, it would be apposite to
    set aside the Assessment Order and remit the matter to
    the Assessing Officer to serve notice under Section 148.

    8.4. In Radha Krishan Industries Vrs. State of Himachal
    Pradesh, (2021) 3 SCR 406 the parameters for
    WP(C) No.23165 of 2025 Page 74 of 85
    approaching a writ Court under Article 226 has
    succinctly been laid down as follows:

    “27. The principles of law which emerge are that:

    (i) The power under Article 226 of the Constitution
    to issue writs can be exercised not only for the
    enforcement of fundamental rights, but for any
    other purpose as well;

    (ii) The High Court has the discretion not to
    entertain a writ petition. One of the restrictions
    placed on the power of the High Court is where
    an effective alternate remedy is available to the
    aggrieved person;

    (iii) Exceptions to the rule of alternate remedy arise
    where,–

    (a) the writ petition has been filed for the
    enforcement of a fundamental right
    protected by Part III of the Constitution;

    (b) there has been a violation of the
    principles of natural justice;

    (c) the order or proceedings are wholly
    without jurisdiction; or

    (d) the vires of a legislation is challenged;

    (iv) An alternate remedy by itself does not divest
    the High Court of its powers under Article 226
    of the Constitution in an appropriate case
    though ordinarily, a writ petition should not be
    entertained when an efficacious alternate
    remedy is provided by law;

    WP(C) No.23165 of 2025 Page 75 of 85

    (v) When a right is created by a statute, which
    itself prescribes the remedy or procedure for
    enforcing the right or liability, resort must be
    had to that particular statutory remedy before
    invoking the discretionary remedy under Article
    226
    of the Constitution. This rule of exhaustion
    of statutory remedies is a rule of policy,
    convenience and discretion; and

    (vi) In cases where there are disputed questions of
    fact, the High Court may decide to decline
    jurisdiction in a writ petition. However, if the
    High Court is objectively of the view that the
    nature of the controversy requires the exercise
    of its writ jurisdiction, such a view would not
    readily be interfered with.”

    8.5. With respect to interference of this Court in exercise of
    power under Article 226 of the Constitution of India, in
    Rajendra Singh Vrs. State of Madhya Pradesh, (1996) 5
    SCC 460 (465) in the context of violation of principles of
    natural justice it has been enunciated in as follows:

    “6. It has been held by a Constitution Bench of this
    Court in Har Shankar Vrs. Dy. Excise and Taxation
    Commr., (1975) 1 SCC 737 that:

    „[T]he writ jurisdiction of High Courts under Article
    226
    of the Constitution is not intended to facilitate
    avoidance of obligations voluntarily incurred.‟

    At the same time, it was observed that the licensees
    are not precluded from seeking to enforce the
    statutory provisions governing the contract. It must,
    however, be remembered that we are dealing with
    WP(C) No.23165 of 2025 Page 76 of 85
    parties to a contract, which is a business
    transaction, no doubt governed by statutory
    provisions. [Reference may also be made to the
    decision of this Court in Asstt. Excise Commr. Vrs.

    Issac Peter, (1994) 4 SCC 104.] While examining
    complaints of violation of statutory rules and
    conditions, it must be remembered that violation of
    each and every provision does not furnish a ground
    for the court to interfere. The provision may be a
    directory one or a mandatory one. In the case of
    directory provisions, substantial compliance would
    be enough. Unless it is established that
    violation of a directory provision has resulted
    in loss and/or prejudice to the party, no
    interference is warranted. Even in the case of
    violation of a mandatory provision,
    interference does not follow as a matter of
    course. A mandatory provision conceived in the
    interest of a party can be waived by that party,
    whereas a mandatory provision conceived in
    the interest of the public cannot be waived by
    him. In other words, wherever a complaint of
    violation of a mandatory provision is made, the
    court should enquire– in whose interest is the
    provision conceived. If it is not conceived in the
    interest of the public, question of waiver and/or
    acquiescence may arise– subject, of course, to the
    pleadings of the parties. This aspect has been dealt
    with elaborately by this Court in State Bank of
    Patiala Vrs. S.K. Sharma, (1996) 3 SCC 364 and in
    Krishan Lal Vrs. State of J&K, (1994) 4 SCC 422 on
    the basis of a large number of decisions on the
    subject. Though the said decisions were rendered
    with reference to the statutory rules and statutory
    provisions (besides the principles of natural justice)
    WP(C) No.23165 of 2025 Page 77 of 85
    governing the disciplinary enquiries involving
    government servants and employees of statutory
    corporations, the principles adumbrated therein are
    of general application. It is necessary to keep
    these considerations in mind while deciding
    whether any interference is called for by the
    court– whether under Article 226 or in a suit.
    The function of the court is not a mechanical
    one. It is always a considered course of action.”

    8.6. Culling out distinction between invocation of ―irregular‖
    and ―illegal‖ jurisdiction, in Central Potteries Ltd. Vrs.
    State of Maharashtra, (1963) 1 SCR 166 it is succinctly
    explained as follows:

    “It is contended that the jurisdiction of the Sales Tax
    Officer to take proceedings for assessment with respect to
    non-registered dealers depends, on the issue of a notice
    such as is prescribed by Section 10 and Rule 22 and that
    as no such notice had been issued in the case of the
    appellant, the assessment proceedings must be held to be
    incompetent, if the registration certificate is invalid. We
    see no force in this contention. The taxing authorities
    derive their jurisdiction to make assessments under
    Section 3 and 11 of the Act, and not under Section
    10
    , which is purely procedural. The appellant had
    itself, acting under Section 10(1) been submitting
    voluntarily returns on which the assessments had been
    made and it is now idle for it to contend that the
    proceedings taken on its own returns are without
    jurisdiction.

    In this connection it should be remembered that there is a
    fundamental distinction between want of

    WP(C) No.23165 of 2025 Page 78 of 85
    jurisdiction and irregular assumption of
    jurisdiction, and that whereas an order passed by an
    authority with respect to a matter over which it has no
    jurisdiction is a nullity and is open to collateral attack, an
    order passed by an authority which has jurisdiction
    over the matter, but has assumed it otherwise than
    in the mode prescribed by law, is not a nullity. Lt
    may be liable to be questioned in those very proceedings,
    but subject to that it is good, and not open to collateral
    attack. Therefore even if the proceedings for assessment
    were taken against a non-registered dealer without the
    issue of a notice under Section 10(1) that would be a mere
    irregularity in the assumption of jurisdiction and the order
    of assessment passed in those proceedings cannot be
    held to be without jurisdiction and no suit will lie for
    impeaching them on the ground that Section 10(1) had not
    been followed. This must a fortiori be so when the
    appellant has itself submitted to jurisdiction and made a
    return. We accordingly agree with the learned Judges that
    even if the registration of the appellant as a dealer under
    Section 8 is bad that has no effect on the validity of the
    proceedings taken against it under the Act and the
    assessment of tax made thereunder.”

    8.7. In the context of irregular or erroneous orders touching
    limitation in the case of Deepak Agro Foods Vrs. State of
    Rajasthan, (2008) 10 SCR 877 it has been stated thus:

    “12. *** On a bare reading of the provision, it becomes
    abundantly clear that if an assessment order is set
    aside by an Appellate Authority, fresh assessment
    has to be completed within a period of two years
    from the date of communication of the order in
    appeal to the Assessing Authority and not from the

    WP(C) No.23165 of 2025 Page 79 of 85
    date of order in appeal; as is·pleaded by the
    appellant.

    ***

    15. All irregular or erroneous or even illegal orders
    cannot be held to be null and void as there is a fine
    distinction between the orders which are null and
    void and orders which are irregular, wrong or illegal.
    Where an authority making order lacks
    inherent jurisdiction, such order would be
    without jurisdiction, null, non est and void ab
    initio as defect of jurisdiction of an authority
    goes to the root of the matter and strikes at its
    very authority to pass any order and such a
    defect cannot be cured even by consent of the
    parties. (See: Kiran Singh & Ors. Vrs. Chaman
    Paswan & Ors., (1955) 1 SCR 117). However,
    exercise of jurisdiction in a wrongful manner
    cannot result in a nullity– it is an illegality,
    capable of being cured in a duly constituted
    legal proceedings.

    16. Proceedings for assessment under a fiscal statute
    are not in the nature of judicial proceedings, like
    proceedings in a suit inasmuch as the assessing
    officer does not adjudicate on a lis between an
    assessee and the State and, therefore, the law on
    the issue laid down under the civil law may not
    strict sensu apply to assessment proceedings.
    Nevertheless, in order to appreciate the distinction
    between a „null and void‟ order and an „illegal or
    irregular‟ order, it would be profitable to notice a few
    decisions of this Court on the point.

    WP(C) No.23165 of 2025 Page 80 of 85

    17. In Rafique Bibi (Dead) By LRs. Vrs. Sayed Waliuddin
    (Dead) By LRs. & Ors., 2003 Supp.3 SCR 100,
    explaining the distinction between „null and void
    decree‟ and „illegal decree‟, this Court has said that
    a decree can be said to be without jurisdiction, and
    hence a nullity, if the Court passing the decree has
    usurped a jurisdiction which it did not have; a mere
    wrong exercise of jurisdiction does not result in a
    nullity. The lack of jurisdiction in the court passing
    the decree must be patent on its face in order to
    enable the executing court to take cognisance of such
    a nullity based on want of jurisdiction. The Court
    further held that a distinction exists between a
    decree passed by a court having no jurisdiction
    and consequently being a nullity and not
    executable and a decree of the court which is
    merely illegal or not passed in accordance with
    the procedure laid down by law. A decree
    suffering from illegality or irregularity of
    procedure, cannot be termed inexecutable.

    18. In view of the above, in the present case, apart from
    the fact that on a plain reading of Section 29(8)(b) of
    the Act, it is manifestly clear that fresh assessment
    for the assessment year 1995-96, framed pursuant
    to the order passed by the appellate authority on 8th
    June, 2000, was well within the prescribed time,
    even otherwise, in the light of the afore-stated
    settled law, the assessments orders in question
    could not be held to be null and void on
    account of the stated irregularities committed
    by the assessing officer during the course of
    assessment proceedings. In our opinion, therefore,
    despite scathing observations by the Division Bench
    on the conduct of the Assessing Officer, it was a

    WP(C) No.23165 of 2025 Page 81 of 85
    case of an irregularity in assessment proceedings by
    the Officer, who was not bereft of authority to
    assess the appellant. At best, it was an illegality,
    which defect was capable of and has been cured by
    the High Court by setting aside the orders and by
    granting consequential relief.”

    8.8. It is nobody’s case that the Assessing Officer, namely the
    Deputy Commissioner of Income Tax, Circle 1(2),
    Bhubaneswar had no jurisdiction over the subject-
    matter– income stated to have escaped assessment as
    found mentioned on the Order dated 29.03.2017– for
    assessment. Nonetheless, the Assessing Officer exercised
    power seemingly without verifying whether service of
    Notice dated 29.03.2017 was in fact effected on the
    petitioner. Hence, it may be said that having ―issued‖
    Notice within the period stipulated under Section 149, it
    cannot be comprehended that the Assessing Officer had
    exercised power ―illegally‖ and/or having lack of
    jurisdiction. As has already been stated, there is no
    denial of the fact that Notice dated 23.10.2017 was
    ―issued‖ under Section 142(1) of the IT Act and sent by
    Speed Post vide Postal Acknowledgement
    No.EO941011095IN with postal tracking report ―item
    delivered‖ on 26.10.2017. The service, hence, shall be
    deemed to have been effected in view of Order V, Rule 9
    of the Code of Civil Procedure
    , 1908 read with Section 27
    of the General Clauses Act, 1897. This apart, the
    petitioner has admitted to have participated in the
    WP(C) No.23165 of 2025 Page 82 of 85
    proceeding for penalty under Section 271C after passing
    of the Assessment Order vide Annexure-5. Thus, the
    Assessment undertaken by irregular assumption of
    jurisdiction, the same can be corrected at this stage as
    the initiation of assessment was within the period of
    limitation envisaged under Section 149 of the IT Act.

    8.9. In such view of the matter, on the facts and in the
    circumstances of the case, the exercise of power to
    assess the petitioner under Section 147 by issue of
    Notice dated 29.03.2017 under Section 148 being within
    the period stipulated under Section 149, this Court is
    not persuaded to hold that there is infirmity or latent
    lack of jurisdiction on the part of the Assessing Officer.
    The mode of despatch for the purpose of ascertaining
    service of the Notice dated 29.03.2017 issued under
    Section 148 on the petitioner could not be demonstrated;
    as a result of which the assessment proceeding cannot
    be stated to be null and void. It may be stated at the cost
    of repetition that Notice dated 23.10.2017 under Section
    142(1)
    despatched by Speed Post, which was stated to
    have been delivered at the addressee, would clinch the
    issue with regard to knowledge of proceeding. This case,
    thus, attracts vice of principles of natural justice
    warranting interference in the Assessment Order dated
    14.11.2017 (Annexure-5) by exercise of power under
    Article 226 of the Constitution of India.

    WP(C) No.23165 of 2025 Page 83 of 85

    8.10. Under the above premises, the Assessment Order dated
    14.11.2017 passed under Section 147 read with Section
    144
    of the IT Act (Annexure-5) and the consequential
    Demand Notice dated 14.11.2017 under Section 156 of
    the IT Act (Annexure-5A) are set aside.

    8.11. The matter is, therefore, remanded to the Assessing
    Officer for fresh assessment upon affording opportunity
    of hearing and production of documents/evidence by the
    petitioner. For availing such opportunity, the petitioner
    is directed to appear before the Assessing Officer within
    a period of three weeks from date and upon such
    appearance, the Assessing Officer shall serve Notice
    under Section 148 on him.

    8.12. Upon consideration of material placed by the petitioner
    and such other material available on record, the
    Assessing Officer shall pass Assessment Order in
    accordance with law within a period of three months
    from the date of appearance of the petitioner. Copy of
    such Assessment Order shall also be served on the
    petitioner forthwith.

    8.13. Needless to indicate that no unnecessary adjournments
    shall be allowed and/or granted in order to give scope
    for protraction of the proceeding. The Assessing Officer
    is at liberty to take independent decision without being
    influenced by any of the observations made hereinabove

    WP(C) No.23165 of 2025 Page 84 of 85
    touching the merit of the assessment. In other words,
    nothing contained in the foregoing paragraphs shall be
    deemed to be opinion of the Court on the merit.

    8.14. It goes without saying that in the event the petitioner
    defaults in carrying out the above direction(s), the
    Assessment Order dated 14.11.2017 (Annexure-5) and
    the Demand Notice dated 14.11.2017 (Annexure-5A)
    shall revive and thereby, there would be no impediment
    for the Authority concerned to proceed further with the
    matter in accordance with law.

    9. Ergo, the writ petition stands allowed to the extent
    indicated above and pending interlocutory application(s),
    if any, shall be disposed of, but in the circumstances
    there shall be no order as to costs.

    I agree.

    
    
    
                                              (HARISH TANDON)                        (MURAHARI SRI RAMAN)
                                               CHIEF JUSTICE                               JUDGE
    
    
    
    
    Signature Not
    Verified
    Digitally Signed
    Signed by: ASWINI KUMAR
    SETHY
    Designation: Personal
    Assistant (Secretary-in-charge)
    Reason: Authentication
    Location: ORISSA HIGH
                                      High Court of Orissa, Cuttack
    COURT, CUTTACK
    Date: 31-Mar-2026 20:03:02
    

    The 31st March, 2026//Aswini/Bichi/MRS/Laxmikant

    WP(C) No.23165 of 2025 Page 85 of 85



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