TMI Blog2010 (9) TMI 1096X X X X Extracts X X X X X X X X Extracts X X X X ..... tion period was not necessary and what was relevant was completion of assessment before time barring date. 2. One of the issues dealt with in these appeals was whether the reassessment was time barred, since the order purported to be completed on 31-3-2006 was served on the assessee only on 21-4- 2006. It was held by the Tribunal at paras 4.5 to 4.9 of the said order as under: 4.5. We have considered the rival contentions and perused the relevant records. We have also considered the various decisions cited and relied upon by both the parties. It is an undisputed fact that the re-assessment order was dispatched in the month of April, 2006 and the assessee received the same bears the date as 31..3.2006. Section 153 provides the time l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved : Provided that where the notice under section 148 was served on or after the 1st day of April, 1999 but before the 1st day of April, 2000, such assessment, reassessment or recomputation may be made at any time up to the 31st day of March, 2002.] (2A) Notwithstanding anything contained in sub-sections (1) (1A), (1B),] and (2), in relation to the assessment year commencing on the 1st day of April, 1971, and any subsequent assessment year, an order of fresh assessment in pursuance of an order under section 250 or section 254 or section 263 or section 264, setting aside or cancelling an assessment, may be made at any time before the expiry of one year from the end of the financial year in which the order under section 250 or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is violated, the same can not be rectified and a time barred assessment or reassessment renders the entire assessment/reassessment as nullity. Therefore, the decisions relied upon by the Ld. Departmental Representative are not applicable in case of time barred assessment/re-assessment. The time limitation is an essential condition and is not a rectifiable defect. Since the assessment/re-assessment order is passed under the provisions of Income Tax Act by the Assessing Officer have quasi judicial authority, the same would be considered as made and completed only when it is issued or notified so as to be beyond the control of the authority for any change or modification. So long as the order is in the possession and control of the authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parison of the above referred two provisions, it is found that in both the provisions, the assessment orders shall make under section 153B IT Act shall be made in s.35(2) of the Agrl. IT Act. Therefore, both these provisions are akin to each othr. The Hon ble Kerala High Court has considered the provisions contained in s.35(2) of the Agrl. IT Act and came to the conclusion that to make the order complete and effective it should be issued, so as to be beyond the control of the authorities concerned, for any change or modification. The assessment order is not only to be passed, but it is to be served to the assessee within the period of limitation provided thereunder. The Hon ble Kerala High Court rendered in the case of CIT vs.Kappumalai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Kerala High Court of similar provisions as was found in the provisions contained in s.153B stated supra, we are of the considered opinion that the assessment orders passed in the case of the assessee on 28th December, 2007 but dispatched on2nd January, 2008 are beyond the period of limitation provided under the concerned provisions of law, more so when such orders can not be taken as orders made in the manner as has been understood by a higher forum. 4.9. In the above said decision, the Jodhpur Bench of this Tribunal has considered and followed the decision of Hon ble Kerala High Court which is also relied upon by the Ld. AR of the assessee. Respectfully following the above said decision of the Co-ordinate Bench of this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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