TMI Blog2018 (5) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... ri D.Parida/C.Parida, AR For The Revenue : Shri Saad Kidwai, CIT DR ORDER Per N.S.Saini, AM These are appeals filed by the assessee against the separate orders of the CIT(A)-2 Bhubaneswar all dated 25.1.2018 for the assessment years 2009-2010 to 2015-2016, respectively. 2. The assessee has raised the following grounds of appeal in the respective assessment years: 2009-2010 1. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law. 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fered it for taxation and accepted by the same Ld. A.O. 8. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for. 2010-2011 1. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law. 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame Ld. A.O. 8. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for. 2011-2012 1.That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law. 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment order passed by the Ld. Assessing Officer is barre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accepted by the same Ld. A.O. 8. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for. 2012-2013 1.That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law. 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment order passed by the Ld. Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red it for taxation and accepted by the same Ld. A.O. 8. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for. 2013-2014 1. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law. 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for taxation and accepted by the same Ld. A.O. 8. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for. 2014-2015 1.That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law. 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case in sustaining the disallowance of remuneration and interest to the partners of ₹ 94,01,881/- u/s.184(5) without giving the benefit of the said section thus leading to a simple case of double taxation as the partners of the appellant firm have offered it for taxation and accepted by the same AO. 9. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for. 2015-2016 1. That on the facts and in the circumstances of the case the Ld. CIT(A)-II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 144 in spite of the facts that the provisions of the said section along with the entire requirements of the notices u/s 142(1) and 143(2) have duly been complied during the assessment proceedings contrary to the evidences in support of the same . 2. On the facts and in the circumstance of the case and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 30.12.2016 and in absence of any material to show that the Assessing Officer re-visited these orders after 30.12.2016 upheld the orders and drawn support from the decision of Hon ble Calcutta High Court in the case of CIT vs. Binani Industries ltd., (2015) 59 taxmann.com 389 (Cal). 7. Before us, the assessee produced copy of envelope by which the orders of assessment were sent to the assessee by the Assessing Officer and copy of track record of Speed Post to show that the impugned orders of assessment were, in fact, dispatched by the Assessing Officer on 7.1.2017, though the orders were dated 30.12.2016. The assessee contended that as the orders were dispatched after 30.12.2016, therefore, the orders of assessment were barred by limitation. He placed reliance on the decision of Hon ble Karnataka High Court in the case of CIT vs. B J N Hotels Ld., (2017) 79 taxmann.com 336(Kar). 8. On the other hand, ld D.R. placed reliance on the orders of the CIT(A). 9. Ld D.R. could not explain when the orders were prepared on 30.12.2016 why it could not be dispatched on or before 31.12.2016. 10. We find that Section 153B(1)(a) reads as under: 153B (1) Notwithstanding anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispatch date made available to the Court from the records, to prove that the order is issued within the prescribed period, order passed by AO is barred by limitation. The said judgment squarely applies to the facts of the present case. 13. To the same effect are the decisions of Hon ble Kerala High Court, which are in the case of (i) K. Joseph Jacob vs Agricultural Income Tax Officer another (1991) 190 ITR 464 (Ker) and (ii) Commissioner of Agricultural Income Tax Officer vs. Kappumalai Estate, 234 ITR 187 (Ker). 14. The Jodhpur Bench of this Tribunal also held similarly in the case of Shanti Lal Godawat and Others vs. ACIT, reported in 126 TTJ (Jd) 135. 15. In view of above plethora of judicial precedents, in our considered opinion, the decision of Hon ble Calcutta High Court relied upon by the CIT(A) in the case of Binani Industries Ltd., (supra) will not deter us as it is a settled position of law that when two divergent views are expressed by two different Hon ble High Courts, none of which are Hon ble Jurisdictional High Court, then the view favourable to the assessee should be followed. For this, we derive support from the decision of Hon ble Supreme Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
