Service of notice generally – `Whether Aladin’s Lamp’
Advocate Sameer Bhatia

1) Introduction
Service of notice, summon, intimation, requisition or order (by whatever name called) marks the very foundation and pedestal for the inception of any proceedings of whatever nature and by whatever name called and designated as the pinnacle and ace caveat for steeping into the shoes of legality. Going in rhyme with the principles of natural justice that `No one should be condemned unheard’ which is the translated repository of `Audi Alteram Partem’ which stood derived from a latin expression `audiatur et altera pars’ meaning ‘Let the other side be heard and afforded an effective opportunity of countering in what appears to be an evidence against the subject under consideration and under reference of the authority’. This effective, reasonable, rational, equitable and fair opportunity of hearing accompanied by due adherence to the principalities of natural justice would be incomplete without servicing the content summary of what is against the person intend to be brought within the four corners of law. It would lie in the realm of the constitutional propriety to service the contents upon the subjects to be taken under the norm of taxability or to be taken for punitive charge. The Hon’ble Supreme Court of India has held in a case titled Mohinder Singh Gill vs. The Chief Election Commissioner, AIR 1978 SC 851, `Normally, natural justice involves the irritating inconvenience for men in authority, of having to hear both sides since notice and opportunity are its very marrow. And this principle is so integral to good government, the onus is on him who urges exclusion to make out why.’

2)Main Body

The procedure and the stratagem especially and essentially has to extrapolate the legitimate adherence to the principles of natural justice in a bid to outweigh all irregularities, damning capability of inherent bias, the condemnatory practice of not affording an equitable opportunity of being heard, adopting a pernicious, inimical and catastrophic approach which also stands encountered by the subject and as apparent from as a course of action adopting by the adjudicating authority thereby leading to a circumstances of grave, horrendous, despicable, revolting and repugnant nature. At this juncture it will be most suitable to refer the judgement pronounced by the Hon’ble Supreme Court of India in a case titled Canara Bank vs. Sri Debasis Das, 2003 AIR SCW 1561, `Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. Whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omission of a formulated law. Adherence to natural justice is of supreme importance when a quasi-judicial body determined disputes between the parties or any administration action involving civil consequences is in issue.

            The Privy Council too settled in a case titled In due compliance with the requirements postulated by the principles of natural justice built as inherent safeguards to protect the subject from the vice of arbitrary exercise of power and authority including the crucial, paramount and weighty issue of servicing notice, summon, intimation, requisition or order (by whatever name called) upon the assessee, the generalized way of servicing requirements have been duly substituted in the Income Tax Act of 1961 by having due reference to the embedded provisions of section 282 which stood substituted by the Finance Act No.2 of 2009 with effect from 01st October, 2009 the bare language of which reads :-

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

(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 purpose 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

(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.

Explanation – For the purposes of this section, the expressions “electronic mail” and “electronic mail message” shall have the meanings as assigned to them in Explanation to Section 66A of the Income Technology Act, 2000 (21 of 2000).

As apparent from the above bare and well carpeted language of the statutory provision, it becomes writ apparent that there can be multiple ways of effecting service of any communication popularly in the nature of Notice or Summon or Requisition or Order under the Income Tax Act, 1961 and the power of the authority to exercise alternative medium of service in the event of another alternative becoming distressed or frustrated certainly equips them with the protective shield of bringing to home the legality of service so as to leave a deep impression of the due compliance with the legal horns aiding the bull of proceedings. Section 282 in an unambiguous manner highlights the host of alternatives available with the revenue to clutch the subject into the amphitheater of proceedings thereby making the machinery provisions workable, legitimate and sound. It has been well answered by the Hon’ble Delhi High Court in the case titled Another question of immense and fundamental importance that arose for the consideration before the Hon’ble Madhya Pradesh High Court in a case titled Commissioner of Income Tax Vs. Sattandas Mohandas Sidhi [1998] 230 ITR 591 (MP) was whether the service under the profile of section 282 can be effected by mere issuance of telegram to the subject or not. The Hon’ble Court held in its wisdom, `Notice by way of telegram could not be said to be a substitute for notice by post. It is mandatory that the notice must be served only in the manner provided in section 282 and no other means of servicing will be taken to be a legal course’.

            Service via alternative channels/sources inhabiting service through Speed Post, Service upon the pleader, service through registered post also found a due mention in a variety of judgements pronounced by the courts of competent jurisdictions. Hon’ble Jharkhand High Court very recently banked upon the legality of service of notice serviced through Speed Post medium upon the assessee in a case titled, ` In Commissioner of Income Tax vs. Yamu Industries Limited [2008] 167 Taxmann 67 (Delhi), The Hon’ble Delhi High Court adjudicating the theory of notice sent by Registered Post has held, `. In another path-breaking judgement, the Hon’ble Allahabad High Court has held in a case titled Sultanpur Kshetriya Gramin Bank vs. Joint Commissioner of Income Tax [2011] 336 ITR 156 (Allahabad), `Service of order on advocate of assessee is proper and valid.

The Hon’ble Delhi High Court in a case titled Mayawati vs. Commissioner of Income Tax & Others, Writ Petition No.8768 of 2008 and CM No.16842 of 2008. [2009] 222 CTR (Del) 17, while construing the provisions contained in Section 27 of the General Clauses Act, 1897 has held, `Revenue having despatched notice to assessee, who was earlier a Member of Parliament at her official address at Delhi, which was redirected to her Lucknow address as officially informed by her to the Department, again redirected at her another address in Lucknow, it is evident that she declined to accept notice at all the three places – Due service is presumed under Section 27 of the General Clauses Act, 1897 and no interference is called for in writ jurisdiction under Article 226 of the Constitution of India. It will also be of great magnitude to have a referral to the bare language of the Section 27 of the General Clauses Act, of 1897,

“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 in 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.”

Construing the issue of service of notice qua the provisions of section 27 of the General Clauses Act, 1897 with special reference to service under the Negotiable Instruments Act, 1881, the Hon’ble Supreme Court of India in a landmark judgement titled C.C.Alavi Haji vs. Palapetty Muhammed [2007] 6 SCC 555 settled, `Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed.

Hon’ble Supreme Court of India has settled in a case mentioned as D Vinod Shivappa Vs. Nanda Beliappa, AIR 2006 SC 2179, ` If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. In another vital dictum of the Hon’ble Supreme Court of India titled as V. Raja Kumari Vs. P. Subbarama Naidu, AIR 2005 SC 109, ` it has been held that the principle incorporated in Section 27 of the General Clauses Act can profitably be imported in a case where the sendor has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it is not really served and that he was responsible for such non-service.

In so far as the service of notice by affixation is concerned, it will be most appropriate to have recourse to the provisions contained in Order V, Rule 17 of the Code of Civil Procedure, 1908:– Procedure when defendant refuses to accept service, or cannot be found.– Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and ‘whose presence the copy was affixed.

In view of the Centralized Processing of Returns scheme launched by the Central government accompanied by the due issuance of Notification under section 143(1B) of the Income Tax Act, 1961 dated 04th January, 2012, the process to generalize service of notices has been streamlined and it would be most vital to have a referral to the operative provisions concerning the same which reads:-

The Provisions of section 282 of the Act shall apply to all returns received under the Centralised Processing of Returns Scheme, 2011 subject to the following, namely : –

(i)  The service of a notice or order or any other communication by the Centre may be made by

(a)  sending it by post;

(b)  delivering or transmitting its copy thereof, to the person’s e-mail address by the Centre’s e-mail;

(c)  placing its copy in the my account menu of the person on the official website for e-filing of returns; or

(d)  any of the modes mentioned in section 282(1) of the Income-tax Act.

(ii) The date of posting of any such communication on the website, e-mail or other electronic medium shall be deemed to be the date of service.

          

            The above Centralised Processing of Returns Scheme, 2011 clearly propagates, precipitates and propels the service of notice or order or any other communication to be effected via transmitting the copy thereof to the person’s email address which in other words can be designated as service through `electronic mail’ and `electronic mail message’ the meaning of which have been borrowed by the meaning construed under the Information Technology Act, 2000 (as amended thereof). On a bare perusal of the language of Section 2(1)(t) and Explanation appended to Section 66A of the Information Technology Act, 2000, the term `Electronic Record’, `Electronic Mail’ and `Electronic Mail Message’ stood defined as under:-

            2 (I) In this Act, unless the context otherwise requires,-          

(t)`Electronic Record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generate micro fiche;          

Explanation to Section 66A of the Information Technology Act, 2000 (as amended)

            Explanation- For the purpose of this section, terms “Electronic Mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

It becomes important to state what prudent effects does the term explanation possess and how it alters the character of the charging section towards the subject in words of the Hon’ble Supreme Court verdict in the case of Sundaram Pillai vs. Pattabiraman, (1985) 1 SCC 591, p. 613, An explanation to a statutory provision:-

(a) to explain the meaning and intendment of the Act itself;

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,

c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful;

(d) an explanation cannot in any way interfere with or change the enactment or any part thereof but where gap is left which is relevant for the purpose of the explanation, in order to suppress the mischief and advance the object of the Act, it can help or assist the court in interpreting the true purport and intendment of the enactment; and

(e) it cannot, however, take away a statutory right with which any person , under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.

            The above said passage completely highlight that the purpose of an explanation is to further explain the razor sharp intendment of the statutory provision thereby becoming a part and parcel of the enactment.

3)Latent And Patent Defect In Service Of Notice Electronically

            As a consequent measure of coming into force of the Centralised Processing of Returns Scheme, 2011, the Income Tax department stood empowered through the cannons of delegated legislation to service notice or requisition or order or summon or any other communication under the Income Tax Act, 1961 through electronic channels commonly referred to as the electronic servicing of notice upon the assessee or the subject under its lens. The terms `Electronic mail’ and `Electronic mail message’ have been now subject to a titanic evaporation in lieu of the Judgement pronounced by the Hon’ble Supreme Court of India in a case titled Hence leading to a discernable and definite conclusion that the very operation of Section 66A got ceased from the doctrinal phraseology of Information Technology Act, 2000 (as amended thereof). It is a cardinal and sacramental rule of construction that it is the `Explanation’ which elucidates the meaning of the section embedded in the womb of a statute. When the entire section stood struck by the Hon’ble Supreme Court of India in a far reaching judgement as violative of the pious and reverent provisions relating to the fundamental rights contained in Part III of the Constitution, there cannot be by any figment of imagination held that the Explanation can survive and the same by itself would be reduced to nothing more than a nullity and void ab initio without having any legs to stands on its own. First Explanation appended to Section 282 construes the meaning of the expressions `Electronic Mail’ and `Electronic Mail Message’ as having due attribution to the meanings assigned to them under the explanation appended to section 66A of the Information Technology Act, 2000 (as amended) therefrom, as becomes writ clear and manifestly apparent that the service of the impugned notices or summons or requisitions or orders or any other form of communication under the Income Tax Act, 1961 electronically would be reckoned as a ultra vires the constitution and hence the very operative part of such notices, summons, requisitions or orders or any form of communication under the Income Tax Act, 1961 serviced electronically through the passage of `Electronic Mail’, `Electronic Mail Message’ will not survive the test prescribed for legally servicing the notice as required until and unless, the Income Tax Department resorts to an early amendment in the body of section 282 by resorting to a clarification what meaning would be attached and assigned to the expressions called `Electronic Mail’ and `Electronic Mail Message’ under the Income Tax Act, 1961 when serviced electronically through the gateway of email addresses of the assesses. The very fact that the term `Electronic Record’ as mentioned and referred to in clause (c) of Sub Section (1) of Section 282 will continue to have its say and will be in due conformity with the provisions concerning the service of notice electronically and legally will not survive as the expression `Electronic Record’ as apparent from its definition is more or less pari materia which is a cardinal principle of rule of construction and synonym with its sisters expressions namely `Electronic Message’ and `Electronic Mail Message’ as defined under the Information Technology Act (as amended) thereof.

In a landmark judgement titled Behram khurshid Pesikala vs. State of Bombay, AIR 1955 SC 123, the Hon’ble Supreme Court of India has appreciated by building due inference from Cooley’s, A Treatise on Constitutional Limitations, Vol.I, p.82, “Where a Statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto is true also as to any part of an Act which is found to be unconstitutional and which consequently has to be regarded as having never at any time been possessed of any legal force………..”Concerning the effect of the same judgement, the Hon’ble Supreme Court also appreciated Willis on Constitutional Law at Page No. 89 , `A judicial declaration of the unconstitutionality of a statute neither annuls nor repeals the statute but has the effect of ignoring or disregarding it so fact as the determination of the rights of private parties is concerned. The courts generally say that the effect of an unconstitutional statute is nothing. It is as though it had never been passed………”

4) Conclusions

            Legalized and the kosher service of notices, summons, requisitions, orders or any other communication by whatever name called must be duly supported by the authentic channels in order to pave way for a legalized proceedings to take effect under the purview of Income Tax Act, 1961. Any improper, illegal, indecorous, ill-bred servicing of notice goes to the inception of jurisdiction of the assessing authority and if challenged ruptures and fractures the very sound principalities of sitting upon the proceedings which does not have any concrete premise to bank upon. What is the requirement of the day is instead of negating and putting up the issue of legality of service in cold storage, due efforts must be made by the revenue authorities not to expand, extend and contest their rancorous lapse and to extend their full cooperation in not taking recourse to any alternatives available which might not be of any sound help and credit to them. In so far as the lacerating of section 66A of the Information Technology Act, 2000 by the Hon’ble Supreme Court of India is concerned as violative of fundamental rights contained in the constitution, the words whereof are imported in the Income Tax Act, 1961 under the explanation appended to section 282, what is requested from the revenue authorities is to issue clarifications over the void created in so far as the contested provisions are concerned and introduce an early amendment to aid the taxing statute until and unless that is done, service of notice cannot be taken to be as Aladin’s Lamp.

(Article by – Advocate Sameer Bhatia, R/o 158/2, Guru Teg Bahadur Nagar, Opposite Mata Gujri Park, Jalandhar – 144003, Punjab Contact No:- 9041304900 Email Address: adv.sameerbhatia@gmail.com)