TMI Blog2014 (9) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... records be produced for verification. There is no requirement that service must be effected before the expiry date but there must be evidences to show that assessment order was indeed passed before the limitation - no such evidence has been adduced by revenue that the order was indeed passed on or before 31.12.2008 - evidences are against the revenue that the assessment order and demand notice were dispatched only on 12.02.2009 and the same was served on assessee on 16.02.2009 i.e. beyond 47 days of limitation - There can be postal delay of a week’s time or a fortnight’s time at the maximum and it cannot be 47 days’ delay - in order to make the assessment order complete and effective, it should be issued so as to be beyond the control of the authority concerned for any possible change or modification and this should be done within the limitation period though actual service of the assessment order may be beyond that period - When an assessment order has been purported to have been passed within the prescribed period of limitation but the same is served on the assessee after unreasonable delay without being an explanation coming forward for such delay, in the absence of any expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no evidence that the assessment was completed before the end of limitation period. During the course of appellate proceedings before CIT(A), assessee claimed that the assessment order along with demand notice was dispatched by the AO on 12.02.2009 but assessment order is dated 31.12.2008. According to assessee, assessment order and demand notice were served on assessee on 16.02.2009. The CIT(A) treated the assessment as made within limitation period by giving following finding in para 6: 6. I have considered the submissions of the appellant and perused the assessment order. I have also gone through the assessment records. On perusal of assessment records and the order sheets attached to the assessment record, it is seen that the assessment was completed on 31.12.2008 and it was signed on the same date alongwith the demand notice and notice u/s. 274 read with section 271 of the I. T. Act. The assessment order and the notice of demand were handed over to the Departmental Notice Server for service of the same on the appellant. However, it is reported by the notice server that the assessment order and the demand notice were refused to accept by the appellant. Later on, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) 50 ITR 764 (Mysore). In view of above, it is held that the assessment was completed within the limitation period as provided under the Act and not barred by limitation. The ground no.2 is dismissed. Aggrieved, assessee is in appeal before the Tribunal. 4. Before us, Ld. counsel for the assessee Shri S. M. Surana argued that the assessment is barred by limitation as assessment order and demand notice dated 31.12.2008 were served after 47 days i.e. expiry of the limitation period as prescribed under proviso to section 153(1) of the Act i.e. served on 16.02.2009. When a query was put to Ld. counsel for the assessee that what is the proof of service of the assessment order and demand notice as on 16.02.2009, he stated that the assessment order was dispatched through registered post and it seems from the envelop dispatching Assessment order, that it was dispatched by AO on 12th February, 2009, which ultimately received by the assessee on 16.02.2009. According to Ld. counsel, assessment order and demand notice served after 47 days of limitation period is clearly barred by limitation and for this, he relied on certain case laws. According to Ld. Counsel, last date for complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable but it is not necessary that terms of the order of assessment should also be communicated to the assessee within that period. According to Ld. Sr. DR, what is required for completion of assessment is the determination of the tax liability and issue of demand notice but certainly not the service of the same on the assessee. In view of these arguments Ld. Sr. DR stated that the assessment order is within the limitation period and is a valid assessment order. For this, he also cited certain case laws. 6. We have heard rival submissions and gone through the facts and circumstances of the case. We find from the assessment order that the date noted for framing of assessment order is 31.12.2008 but this is disputed by the assessee. Even before us it was argued by Ld. Sr. DR Shri Amitabha Roy that the assessment order and demand notice were sent by Registered Post on 12th February, 2009, which was ultimately received by assessee on 16.02.2009 because first the assessment order and demand notice was handed over to Departmental Notice Server and assessee refused to accept the assessment order. In such circumstances, Revenue s contention is that the assessment order and demand notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uBhai M. Patel(HUF) V Hiren Bhatt(2011)334ITR25(Guj)wherein the concept of date issue of notice, which means when it will leave the control of the authority concerned. Hon ble Gujarat High Court discussed the expression issue as defined in Black s Law Dictionary to mean To send forth; to promulgate; as, an officer issues orders, process issues from a court. To put into circulation; as, the treasury issues notes. To send out, to send out officially; to deliver, for use, or authoritatively; to go forth as authoritative or binding. When issued with reference to writs, process, and the like, the term is ordinarily construed as importing delivery to the proper person, or to the proper officer for service etc. Further, the word issue has been defined in P. Ramanath Aiyer s Law Lexicon as follows: Issue. As a noun, the act of sending or causing to go forth; a moving out of any enclosed place; egress; the act of passing out; exist; egress or passage out (Worcester Dict.); the ultimate result or end As a verb, To issue means to send out, to send out officially; to send forth; to put forth; to deliver, for use, or authoritatively: to put into circulation; to emit; to go out ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative stated before the Tribunal that the matter may be decided in the light of the facts on record of the case. While dismissing the appeal of the revenue, the Tribunal has given a categoric finding that no evidence has been adduced by the Department to show that the impugned order dated 26.3.2004 passed by the assessing officer was indeed passed before the statutory time limit. 9. Further, reliance was placed on the decision in the case of CAGIT Vs. Kappumalai Estate (1998) 234 ITR 187 (Ker) and also Government Wood Works Vs. State of Kerala (1988) 69 STC 62 (Ker) and on the basis of these two decisions Ld. Counsel contended that in order to make the assessment order complete and effective it should be issued so as to be beyond the control of the authority concerned for any possible change or modification. This should be done within the prescribed period though the actual service of the order may be beyond that period. The contention of Ld. Counsel was that service of assessment order after the expiry of the period of limitation raises a presumption against passing of the order within limitation. Ld. Counsel for the assessee also relied on the decision of Hon ble High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erified. However, the Department could not produce any evidence which prove that the assessment order was ready as on 31.12.2008. Thus, we have no option but to accept the contention of assessee that the assessment order was not passed on 31.12.2008. No doubt the provisions of section 153 requires that assessment order shall not be passed after the expiry of two years from the end of the assessment year in which the income was first assessable. This is applicable to this case. There is no requirement that service must be effected before the expiry date but there must be evidences to show that assessment order was indeed passed before the limitation. In the present case before us no such evidence has been adduced by revenue that the order was indeed passed on or before 31.12.2008. Even though the assessee has taken up this issue in appeal and revenue has repeatedly been asked to produce evidences to that effect. There is no evidence produced before this Bench to show that the assessment order and demand notice was dispatched by registered post as on the date of assessment order of 31.12.2008. Rather, evidences are against the revenue that the assessment order and demand notice were ..... 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