TMI Blog2018 (11) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... timate presumption is arising that the orders may not be the orders passed on the purported date but on the subsequent date. This presumption arises on the admitted facts without going into any factual controversy. Under the facts and circumstances of the case as there is inordinate delay in the service of the orders which goes completely unexplained coupled with the fact that the officer passing the orders made no efforts to serve them and the orders could be served only after he was transferred necessitates exercise of discretionary jurisdiction. The assessment orders impugned in each of the writ petitions are of subsequent date rather than of date on which they are purported to have been passed and as such are barred by limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellate court for passing fresh order or the orders were set aside as they were ex parte with direction to pass fresh orders. It is in-consequence of those orders that the impugned assessment orders referred to above have been passed by the assessing authority. The petitioner has challenged the assessment orders inter alia on the ground that there is a huge delay in the service of the copies of the orders upon the petitioner which give rise to a legitimate presumption that the orders were not actually passed on the dates mentioned in the orders rather on a much later date beyond the time prescribed. In view of the provisions of Section 29 (5) and (6) of the Act a specific time limit has been prescribed for the Assessing A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord regarding service of the copies of the orders upon the petitioner. In the cases at hand there is no dispute to the facts that the orders of assessment were passed on 31.03.2016 in three cases and on 31.01.2017 in the fourth case. The copies of the above orders in all the cases were served upon the petitioner on 21.07.2018 i.e. with the delay of 28 and 18 months respectively. In the counter affidavits filed by the revenue it has been admitted that 31.03.2016 was the last date of limitation for passing the assessment order after remand. In paragraph 15 of the counter affidavit filed in all the petitions it has been admitted that there has been a delay in service of the assessment orders. The Assessing Officer, who had passed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely. In spite of repeated query in this regard put to the Special Counsel he is unable to give any explanation and accepts that there is a delay in taking steps for service of the assessment orders which is unexplained on the basis of record. He however, made an attempt to justify the delay on the ground of misplacement of the files but that does not appear to be correct for the reason that on the telephonic message of the Joint Commissioner, Mirzapur received on 10.07.2018, the orders were handed over to the Process Server immediately on the very next date i.e. 11.07.2018 for service meaning thereby that the files were not missing at all. Inaction on part of the authorities for a long time as in the instant case, necessarily give ris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court decision in M. Ramakrishtaiah Co. (Supra) and it was held that where there is a time gap of more than 8 months between the purported date on which the order was passed and the date on which it was served on the assessee and the reason for such inordinate delay remain unexplained it legitimises the presumption that order was not passed on the date on which it is purported to have been passed. In the said case also the order was passed on 04.11.2006 but was sent to the partners of the assessee firm by registered post on 20.07.2007 and there was no explanation as to what steps were taken during this period to communicate the original order. Thus, the court held that it must be presumed that the order was not passed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of the case as there is inordinate delay in the service of the orders which goes completely unexplained coupled with the fact that the officer passing the orders made no efforts to serve them and the orders could be served only after he was transferred necessitates exercise of discretionary jurisdiction. The law as referred to above clearly clinches the issue regarding legitimate presumption on account of long delay on the part of the revenue in serving the copies of the assessment orders upon the petitioner which ex facie indicate that the orders were actually passed after expiry of limitation and for this reason making it impossible to serve the copies thereof earlier upon the petitioner. In such circumstances, when the mani ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
