Service of Notice by E-Mail or Whats apps

Recently the HC of judicature at Bombay has hold that the service of notice through whats App and through e mail is a valid service.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION (L) NO. 572 OF 2017

IN

SUIT (L) NO. 162 OF 2017

Kross Television India Pvt Ltd & Anr Vs. Vikhyat Chitra Production & Ors 

In this case:-

Plaintiff  send the copies of the following documents to the defendant

1. Copies of the plaint, Notice of Motion and the order of 17th March 2017 were served on Defendant No.1, Vikhyat, and

Defendant No. 5, Deepak Krishna, by WhatsApp. This was received. Vikhyat (Defendant) replied. He said ‘I dint understand anything. Will check with my legal team and I’ll text you back. I am out of station.’

2.  The Plaintiffs effected service by email at two addresses:

[email protected] and [email protected].

Then the Plaintiffs’ Advocates tried to contact Krishna, Defendant No. 5. It was he who supplied Vikhyat’s mobile phone number. There is an email exchange annexed to this Affidavit.

The Defendants were informed by email and message that the matter would be listed today in this Court. The message was delivered.

I do not see what more can be done for the purposes of this motion. It cannot be that our rules and procedure are either so ancient or so rigid (or both) that without some antiquated formal service mode through a bailiff or even by beat of drum or pattaki, a party cannot be said to have been ‘properly’ served. The purpose of service is put the other party to notice and to give him a copy of the papers. The mode is surely irrelevant. We have not formally approved of email and other modes as acceptable simply because there are inherent limitations to proving service. Where an alternative mode is used, however, and service is shown to be effected, and is acknowledged, then surely it cannot be suggested that the

Defendants had ‘no notice’. To say that is untrue; they may not have had service by registered post or through the bailiff, but they most certainly had notice. They had copies of the papers. They were told of the next date. A copy of the previous order was sent to them.

Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion.

The court admitted the writ of the plaintiff and granted the interim stay to the plaintiff.

NOTICE

SECTION 282-SERVICE OF NOTICE GENERALLY

Sec. 282 reads as under :

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);

(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 Information Technology Act, 2000 (21 of 2000).

ADDED RULE NO. 127 DATED 2-12-2015

“Service of notice, summons, requisition, order and other communication. 127.

(1) For the purposes of sub-section (1) of section 282,

The addresses (including the address for electronic mail or electronic mail message) to which a notice or summons or requisition or order or any other communication under the Act (hereafter in this rule referred to as “communication”) may be delivered or transmitted shall be as per sub-rule (2).

(2)  The addresses referred to in sub-rule (1) shall be-

(a) for communications delivered or transmitted in the manner provided in clause (a) or      clause(b) of sub-section(1) of section 282-

(i) the address available in the PAN database of the addressee; or

(ii) the address available in the income-tax return to which the communication relates; or (iii)the address available in the last income-tax return furnished by the addressee; or

(iv) in the case of addressee being a company, address of registered office as available on the website of Ministry of Corporate Affairs:

Provided that the communication shall not be delivered or transmitted to the address mentioned in item (i) to (iv) where the addressee furnishes in writing any other address for the purposes of communication to the income-tax authority or any person authorized by such authority issuing the communication;

(b) for communications delivered or transmitted electronically-

(i) email address available in the (income-tax return furnished by the addressee to which the communication relates; or

(ii) the email address available in the last income-tax return furnished by the addressee; or

(iii) in the case of addressee being a company, email address of the company as available on the     website of Ministry of Corporate Affairs; or

(iv) Any email address made available by the addressee to the income-tax authority or any person authorized by such income-tax authority.

(2) The Principal Director General of Income-tax(Systems) or the Director General of Income-tax(Systems) shall specify the procedure, formats and standards for ensuring secure transmission of electronic communication and shall also be responsible for formulating and implementing appropriate security, archival and retrieval policies in relation to such communication.”

(3)

“INCOME TAX RULES W.E.F. 23-3-2017

127A.Authentication of notices and other documents-

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

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

(i) Is printed on the e-mail body, if the notice or other document is in the email body itself; or

(ii) is printed on the attachment to the e-mail, if the notice or other document is in the attachment, and the e-mail is issued from the designated e-mail address of such income-tax authority;

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

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

(ii) is printed on the attachment in the electronic record, if the notice or other document is in the attachment, and such electronic record is displayed on the designated website.

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

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

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

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

[Notification No. 17/2017/F.No. 370142/4/2017-TPL]

[Dr T. S. Mapwal]

INFORMATION AND TECHNOLOGIES ACT 2000

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

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

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

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

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

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

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

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

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

(5) For the purposes of this section,–

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

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

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

That the Income tax rules 1962 has been amended w.e.f  2-12-2015 and has added a rule No. 127 which authorises the Income tax authorities to effect the service of notice through e mail, electronics message the rule also provided the place and address where the service is to be effected.

The Information Technology Act, 2000 recognizes sending of electronic records for various purposes, including legal notices, if certain conditions are satisfied. Both Supreme Court of India and the Delhi High Court have already prescribed guidelines in this regard.

A Three Judge Bench of Supreme Court of India in Central Electricity Regulatory Commission v. National Hydroelectric Power Corporation Ltd, Civil Appeal No. (D.21216/2010), (2010) 10 SCC 280 observed that in various Courts, the statistical data indicates that, on account of delay in process serving, arrears keep on mounting. In Delhi itself, the input indicates that fifty per cent of the arrears in Courts particularly in commercial cases is on account of delay in process serving.

For the above reasons, the following directions, as mentioned herein below, are given:

(i) In addition to normal mode of service, service of Notice(s) may be effected by E-Mail for which the advocate(s) on-record will, at the time of filing of petition/appeal, furnish to the filing counter a soft copy of the entire petition/appeal in PDF format;

(ii) The advocate(s) on-record shall also simultaneously submit E-Mail addresses of the respondent(s) Companies/Corporation(s) to the filing counter of the Registry. This will be in addition to the hard copy of the petition/appeal;

(iii) If the Court issues notice, then, in that event alone, the Registry will send such an additional notice at the E-Mail addresses of the respondent(s) Companies/Corporation(s) via E-Mail;

(iv) The Registry will also send Notice at the E-Mail address of the advocate(s) for respondent(s) Companies/Corporation(s), who have filed caveat. Advocate(s) on-record filing caveat shall provide his/her E-Mail address for effecting service; and

(v) Within two weeks from today, Cabinet Secretariat shall also provide centralized E-Mail addresses of various Ministries/Departments/ Regulatory Authorities along with the names of the Nodal Officers, if already appointed, for the purposes of service.

The above facility is being extended in addition to the modes of service mentioned in the existing Supreme Court Rules. This facility, for the time being, is extended to commercial litigation and to those cases where the advocate(s) on-record seeks urgent interim reliefs.

The Delhi High Court, in exercise of powers under Part X of the Code of Civil Procedure, 1908 (5 of 1908) and Order V, Rule 9 of the Code of Civil Procedure, 1908 and all other powers enabling it in this behalf, has also made Rules regarding service of legal notices through E-Mail. These rules allow service of legal notices and processes through E-Mails if the conditions prescribed therein are duly complied with.

Similarly, A Division Bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna has ensured early release of under trials and accused who are granted bail by directing all Delhi courts as well as its own officials to e-mail a copy of bail orders to Tihar jail authorities within 24 hours of being pronounced.

The Supreme Court of India and the Delhi High Court are also working in the direction of establishment of E-Courts in India as soon as possible. Presently, computerization work has been finished to a greater extent and we may witness the e-filing facility as well in the near future. Once linked to the National Judicial Data Grid (NJDG), a proper e-court infrastructure can be established in India.

So those who believe that legal notices or legal processes cannot be sent through e-mail must think again as the necessary legal and judicial framework in this regard already exists in India.

In the income tax return it is mandatory to provide mobile no. and e Mail ID of the asssesee.

There are some questions to be answered:-

I. That e mail is provided by my employee/ accountant /counsel,

II. That I have no e mail ID. In my name.

III. That the mail Id and mobile Number provided belong to my minor son/daughter.

IV. I do not know how to operate the computer or login the e mail IDs.

V. That I forget my mail ID or password, as it is more than one year old.

VI. That being a one year old I am unable to login. I changed my mobile number unable to retrieve the mail iD.

VII. That the mail was received in spam.

VIII. That I did not login the  e mail ID for six month

Whether in such cases the notice served upon the asssesee through the e mail ID provided in the return will be valid one or not.

The Answer  to these  questions  will be that the notice send to the e mail IDs provided in the income tax return shall be valid one  and be binding upon the asssesee because according to  chapter IV of the information and technologies Act 2000.

I am of the view that the  mail is received in the mail ID after the last day On which the notice was to be served, then notice served on e mail can be said to be a without jurisdiction.

Section 13 of chapter IV

Time and place of despatch and receipt of electronic record.–

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

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

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

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

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

Recently we have seen that the income tax authorities have started serving notices U/s 148 through mail to avoid any legal defeat by the department.

Now the question arises that still is there any lacuna by which the asssesee can fight his case in appeal on the basis of service of notice?

1. First of all the asssesee ought to examine the notice issued and should read it carefully.

2. Whether the notice is sent through mail or electronics message is issued or sent by the jurisdictional officer, in other words that the notice has been issued by the officer who has the jurisdiction over the asssesee.

3. That the proper name and address of the issuing officer has been mentioned.

4.  If the notice is issued by the officer other than having the jurisdiction, The asssesee should immediately write a letter U/s 124(3) to the officer who has issued a notice  saying that the notice issued is without jurisdiction and should clearly mentioned that the jurisdiction over the asssesee lies with so and so officer.( That letter will help in appeal)

RAM BHAJ & SONS (P) LTD. vs. INCOME TAX OFFICER ITAT, AMRITSAR ‘SMC-I’ BENCH (2006) 102 TTJ 0695 : (2006) 100 ITD 009 Assessee having not raised any objection to the jurisdiction of the AO within the time allowed under s. 124(3) and the CIT as well as the Chief CIT declined to transfer the assessee’s case to another AO at the instance of the assessee, no fault can be found with the AO in assuming jurisdiction and completing the assessment. In favour of: Revenue

LAJWANTI COTTON GINNING vs. INCOME TAX OFFICER ITAT, AMRITSAR TRIBUNAL (SMC) ITA No. 395(Asr)/2014 (2014) 41 CCH 0234 Asr Trib Held: The return in the present case was e-filed on 29.09.2008 which was taken under scrutiny through CASS and accordingly statutory notice under Section 143(2) of the Act was issued on 07.09.2009 fixing the case for 15.09.2009. The Accountant of the assessee-firm represented the matter who stated the case of the assessee was assessed with A.O., Bathinda and accordingly the assessee was required to file the copy of the return, etc. The objection of the learned CIT(A) is that this is an information which has been noted in the order-sheet dated 15.09.2009 and no legal objection was in the proper form. In this regard, I am of the view that such type of objection or information do not make any difference since the ITO has noted the facts of the case and accordingly the file was transferred but only on 18.01.2010, which in fact, could have been done immediately on 15.09.2009, keeping in view the provisions contained under Section 124(3)(a) of the Act, but the same was not done. In the circumstances and facts, I treat the said information dated 15.09.2009 as legal objection under Section 124(3)(a) of the Act. Therefore, keeping in view the cases relied upon by the learned counsel for the assessee and in the absence of any transfer order of the case from ITO, Bathinda, to ITO, Faridkot, the argument made by the learned DR do not help the revenue and the notice issued is bad in law and the assessment so made is directed to be quashed. ‘P.A. Ahammed vs. Chief CIT & Anr.’, 282 ITR 334 (Ker); ‘Lt. Col. Paramjit Singh vs. CIT’ , 220 ITR 446 (P&H), relied on. Conclusion: Where the accountant of assessee firm appeared before AO on issuance of notice u/s 142(1)/143(2) and informed AO that jurisdiction of assessee vest in another AO to which it was regularly assessed, said information constitutes a legal objection under Section 124(3) (a) to issue notice.