TMI Blog2013 (12) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... on 156 was served on the assessee only on 29.12.2008 - The assessments for the years under appeal to be barred by limitation in terms of section 153 – Decided against Revenue. - ITA No.953/Hyd/2010 - - - Dated:- 31-1-2013 - Shri Chandra Poojari And Shri Saktijit Dey,JJ. For the Appellant : Shri V.Raghavendra Rao For the Respondent : Shri M. H. Naik, CIT-DR ORDER Per Chandra Poojari, Accountant Member:- There are four appeals in all in this bunch. Two are by the assessee and two are by the Revenue, and they are directed against separate orders of the CIT(A) V, Hyderabad for the assessment years 2003-04, 2004-05, 2006-07 and 2007-08. Since common issues are involved, these appeals were heard together, and the same are being disposed of with this common order for the sake of convenience. Assessee's Appeals:- ITA No.953/Hyd/2010 : Assessment Year 2006-07 ITA No.1332/Hyd/2010 : Assessment year 2007-08 2. These appeals are directed against the orders of the CIT(A) V, Hyderabad dated 1.4.2010 for assessment year 2006-07 and dated 5.8.2010 for assessment year 2007-08. 3. Effective grounds of the assessee in appeal ITA No.953/Hyd/2010 for assessment year 2006-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost issue to be considered in these appeals is whether any income accrued or arose to be assessed in the hands of the assessee. As brought to our notice by the learned counsel for the assessee and not disputed by the learned Departmental Representative, this issue is covered by the decisions of the Tribunal in similar cases, say in the cases of IVRCL-KBB-MEIL(JV), IVRCL- KBL-(JV) and M/s. IVR CL-JL(JV), in ITA Nos.1197 to 1199/Hyd/2011 for assessment year 2008-09, wherein this Tribunal, vide order dated 12.7.2012, has decided the same in favour of the assessee by observing in para 53 thereof as follows- "53. In our opinion, no income accrued in the hands of the present assessee as JV as the entire project value of the work in the form of gross receipts being an income producing asset was divested and was transferred by the assessee to its constituents. The understanding and or the agreement amongst the constituents of the Joint Venture is only diversion of income by overriding title which principle shall not enable the Assessing Officer to estimate any theoretical income for the purpose of levying tax on it. In view of the above discussion, we are of the opinion that the CIT(A) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed for statistical purposes. 6. In the result, both the appeals of the assessee for the assessment years 2006-07 and 2007-08 are allowed for statistical purposes. Revenue's Appeals:- ITA No.940/Hyd/2010 : Assessment Year 2004-05 ITA No.1432/Hyd/2010 : Assessment year 2003-04 7. These appeals are directed against the orders of the CIT(A) V, Hyderabad dated 27.8.2010 for assessment year 2003-04 and dated 9.4.2010 for assessment year 2004-05. 8. Effective grievance of the Revenue in these appeals is against the action of the CIT(A) in declaring the assessments made for the assessment years 2003-04 and 2004-05 as ab initio null and void, and accordingly allowing the appeals of the assessee. Grounds of the Revenue, common in both these appeals, as taken from ITA No.940/Hyd/2010 read as follows- "1. The Hon'ble CIT(A) erred in facts and in law in holding that the assessment order for the asst. year 2004005 was ab initio null and void. 2. The CIT(A) has erred in facts and in law in holding that the tax was not determined in this case. The CIT(A) has ignored the material fact that the assessment order itself contains tax calculation and the net result of tax calculation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been completed by 31.3.2007. Since in the case on hand, there is no evidence to indicate that the assessment order was ever despatched to the assessee soon after the assessment was done, or at least prior to 31.3.2007, and the notice of demand under S.156 of the Act was issued to the assessee only on 23.12.2008 and that too was signed by DCIT Circle 16(3) and not by the original Assessing Officer, held the assessment made to be ab initio null and void. In support of his conclusion, the CIT(A) relied on the decisions of the Gujarat High Court in CIT V/s. Purshottamdas T.Patel (209 ITR 52) and of the Calcutta High Court in CIT V/s. Krishwanti Punjabi(139 ITR 703). Aggrieved by the action of the CIT(A) in this behalf, Revenue preferred these second appeals before us. 11. For the assessment year 2003-04 also facts of the case are similar to the ones of assessment year 2004-05 discussed in paras 6 and 7 hereinabove, in as much as the assessment order for this year passed under S.143(3) was signed by ITO Ward 7(1) Hyderabad on 20.6.2005, but the demand notice under S.156 dated 23.12.2008 was issued by the DCIT Circle 16(3) and served on the assessee on 29.12.2008. The CIT(A) following ..... X X X X Extracts X X X X X X X X Extracts X X X X
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