TMI Blog2023 (3) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... no restriction or limitation period prescribed under Section 153 (3) for issue of order , uploading of order on web portal or communication of order In the present case the assessment order, dated 31.03.2022, was upload ed on web portal on 01.04.2022, which is just the next day after 31.03.2022, and even the DIN was generated on 01.04.2022. Accordingly, the delay, if any, in uploading or DIN was just of one day. The legislature itself has given stricter time line for Section 153 (1) and Section 153 (2) and has give n a liberal time line for Section 153 (3). Thus it may not be correct to apply the time line provided under Section 153 (3) strictly or as mandatory as compared to the time line provided under Section 153 (1) and Section 153 (2). Both Section 153 (1) and Section 153 (2) provide for the consequence that after the expiry of time line no assessment order shall be passed . However, Section 153 (3) does not provide for any such consequence. Accordingly, in the present case, the delay, if any, of just one day in uploading the assessment order or generating the DIN cannot make the assessment order unsustainable in law. Petitioner has also contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit, order, direction holding and declaring that the service of order to an Assessee, can be carried out only in terms of Section 282 of the Income Tax Act read with Rule 127 of Income Tax Rule and any order served otherwise, is not recognized in the eyes of law and vitiates the intended proceedings: (C) Consequent upon showing cause if any and on being satisfied that the entire proceeding having become time barred and the purported order dated 31.03.2022, which although has been passed on 03.04.2022, since antedated and since suffers from various anomalies, the entire proceedings be held to be time barred and the order impugned dated 31.03.2022 be quashed and set aside. (D) Consequently, the respondents be directed to forthwith refund the amount of Rs.36.59/ lakhs from the bank account of the petitioner, realized during the pendency of appeal at learned ITAT, Ranchi Bench, Ranchi. 3. The brief facts of the case as enumerated in the writ application is that the petitioner is engaged in the business of trading of coal and has been carrying out the said business for more than 15 years. For the period i.e. Assessment year 2014 15 corresponding to previous 2013 14, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed ITAT had allow ed the appeal preferred by the petitioner vide order dated 02.03.2020 passed u/s 254(1) of the I.T Act, 1961 and remanded the matter back to the Assessing Officer to examine the entire issue afresh. On 24.06.2020 the order passed by learned ITAT u/s 254(1) of the Act was received in the office of the learned Principal Commissioner of Income Tax. After passing of order of learned ITAT, the petitioner made all compliances as and when required to be undertaken. However, no final order had been passed and in fact the appeal effect had also not been given to the petitioner inasmuch as the petitioner had been continuously pursuing the same before the authorities concerned and had made representations. On 08.07.2021 , last communication was received from the office of Respondent No. 2, stating that after introduction of Faceless Assessment Scheme nothing remains in the hand of Respondent no. 2 in order to grant refund or appeal effect, but the entire proceedings shall be carried out in terms of the said scheme. Aggrieved thereof, the petitioner preferred a writ petition being W.P.(T) No. 3094/2021 which was withdrawn by the petitioner vide order dated 19.04.2022 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first day of October, 2019 with a computer generated document identification number allotted to it and duly quoted in the body of such communication. The CBDT has also carved out the exceptional circumstances, where it becomes difficult to quote DIN and the communication is issued manually but in such exceptional circumstances, the reasons are to be recorded in writing in the file and the prior written approval of the Chief Commissioner/Director General is mandatory. In fact, the communication, if issued manually without DIN, the date of written approval taken from the Chief Commissioner/ Director General has to be specifically mentioned in the file in the absence of such modalities having been completed, any communication, are rendered invalid and shall be deemed to have never been issued. In the case in hand, the order dated 31.03.2022, which has been impugned in the present writ petition did not bear DIN and also does not state as to under what circumstances, the order is being issued manually. A perusal of the order impugned at Annexure 15 would also show that the authority, who has passed the order has not even given the day on which the order impugned has been signed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Document Identification Number (DIN) for all communications sent by the State Tax Officers to taxpayers and other concerned persons would be in the larger public interest and enhance good governance. It will bring in transparency and accountability in the indirect tax administration, which are so vital to efficient governance. Even the Central Government has also taken a decision and as such implemented the DIN system of Central Board of Direct Taxes and on and from 01.10.2019, as every CBDT communication will have to have a Document Identification Number (DIN). But, as on today, only two States, namely, the States of Karnataka have implemented the system for electronic (digital) generation of a DIN in the direct tax administration, which is laudable and to be appreciated. 7. In view of the implementation of the GST and as per Article 279A of the Constitution of India. The GST Council is empowered to make recommendations to the States on any matter relating to GST. The GST Council can also issue advisories to the respective States for implementation of the DIN system, which shall be in the larger public interest and which may bring in transparency and accountability in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder impugned. A corrigendum was also issued on 11/04/2022 , just in order to cover up the anomalies and defect in the order. Manual passing of the order and the communication dated 01.04.2022 clearly goes to show that it was antedated. If the order has been passed on 31.03.2022 within 11:59:59 pm, the same ought to have been uploaded on the same day within the same time, on the e mail ID of the assesse. 6. Mr. Sahay and Mr. Lamba, learned counsel for the respondent submits that both Section 153(1) and 153 (2) use the word or expression shall'' for prescribing the time period for making the relevant assessment order, while at the same place i.e. under section 153(3) legislature has used the expression may for prescribing the time period for making remand assessment order. Further, it is also pertinent to consider that both under Section 153(1) and Section 153(2) the words or expression are no order of assessment ....... shall be whereas section 153(3), which starts with a non obstante clause and uses the expression .... and order of fresh assessment .... may be made It is clear from bare reading of the said three provisions of section 153, that section 153(1) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax on or around 24.06.2020. According to the petitioner, as per Section 153 (3) of the Income Tax Act, 1961, the limitation period for passing and communicating the said assessment has expired on 31.03.2022. The main thrust of the argument of the petitioner is that the said assessment order, dated 31.03.2022, passed in the case of the petitioner was not communicated to the assesse and also not uploaded on the web portal on or before 31.03.2022. Therefore, it has been argued by the petitioner that the said assessment order is barred by the limitation period prescribed under Section 153(3) of the Income Tax Act, 1961. It has also been contended that the DIN (Document Identification Number) for communication of the said assessment order was generated on 01.04.2022 and the said assessment order was uploaded on the web portal on 01.04.2022. Further, the said assessment order was communicated to the Petitioner on 03.04.2022. The Petitioner has relied on the CBDT circular, bearing no. 19/2019 and dated 14.08.2019, to argue that no communication in relation of the assessment order could have been made in the absence of DIN. As in the present case, the DIN was generated after 31.03.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the words twelve months had been substituted. (3) Notwithstanding anything contained in sub sections (1) and (2), an order of fresh assessment in pursuance of an order under section 254 or section 263 or section 264, setting aside or cancelling an assessment, may be made at any time before the expiry of nine months from the end of the financial year in which the order under section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Commissioner or Commissioner: Provided that where the order under section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Commissioner or Commissioner on or after the 1st day of April, 2019, the provisions of this sub section shall have effect, as if for the words nine months , the words twelve months had been substituted. 10 At this stage itself it is relevant to mention that making of order , issue of order , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en received by the assessee is not relevant for the purpose of calculating/considering the period of limitation provided under Section 263(2) of the Act. Therefore the High Court as such has misconstrued and has misinterpreted the provision of sub section (2) of Section 263 of the Act. If the interpretation made by the High Court and the learned ITAT is accepted in that case it will be violating the provision of Secti on 263(2) of the Act and to add something which is not there in the section. As observed hereinabove, the word used is made and not the receipt of the order . As per the cardinal principle of law the provision of the statute/Act is to be read as it is a nd nothing is to be added or taken away from the provision of the statute. Therefore, the High Court has erred in holding that the order under Section 263 of the Act passed by the learned Commissioner was barred by period of limitation, as provided under sub section (2) of Section 263 of the Act. 6. In view of the above and for the reasons stated above the question of law framed is answered in favour of the Revenue appellant and against the assessee respondent herein and it is held that the order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders in cases falling under Section 153 (3). Accordingly, the legislature itself has given stricter time line for Section 153 (1) and Section 153 (2) and has give n a liberal time line for Section 153 (3). Thus , it may not be correct to apply the time line provided under Section 153 (3) strictly or as mandatory as compared to the time line provided under Section 153 (1) and Section 153 (2). It is further to be taken note of that both Section 153 (1) and Section 153 (2) provide for the consequence that after the expiry of time line no assessment order shall be passed . However, Section 153 (3) does not provide for any such consequence. Accordingly, in the present case, the delay, if any, of just one day in uploading the assessment order or generating the DIN cannot make the assessment order unsustainable in law. 13 The Petitioner has also contended that the assessment order, dated 31.03.2022, was uploaded on the next day i.e. 01.04.2022 but the same was required in law to be uploaded on the same date and not later. However, the Petitioner has not shown any provision of law which provides that an assessment order has to be uploaded on the web portal on the same day when it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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