TMI Blog2019 (1) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment are therefore liable to be annulled and are hereby annulled. - decided in favour of assessee - ITA Nos. 629 to 631/Bang/2014 And ITA Nos. 643 to 645/Bang/2014 - - - Dated:- 4-1-2019 - SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER For The Assessee : Shri Annamalai, Advocate For The Revenue : Shri Vikas K. Suryavamshi, Addl.CIT(DR)(ITAT) Bengaluru ORDER Per Bench These are appeals by the Revenue and Assessee against three orders all dated 30.1.2014 of CIT(Appeals)-I, Bangalore, relating to assessment years 2001-02 to 2003-04. 2. First we shall take up for consideration the common issue raised in Gr.No.2 in the three appeals filed by the Assessee for AYs 2001-02 to 2003-04 respectively. In Gr.No.2, the Assessee has raised a plea that the orders of assessment passed by the AO dated 30.12.2011 in all the three AYs 2001-02 to 2003-04 were barred by limitation as laid down in Sec.153(2A) read with second proviso thereto of the Income Tax Act, 1961 (Act). 3. The material facts as far as the aforesaid ground of appeal raised by the Assessee are that the Assessee which is a partnership firm, is engaged in Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the order of assessment dated 30.12.2011 passed by the AO for all the three assessment years is barred by time as per the provisions of section 153(2A) of the Act. The contention of the assessee was that through the orders of assessment was dated 30.12.2011, those orders were despatched only on 09.01.2012 through the Bangalore GPO through Speed Post to the assessee and the same was served on the assessee only on 10.01.2012. The above fact is not in dispute and is evident from the postal cover in which the order of assessments were despatched to the assessee and the reply of the post office on the date of despatch of those letters to the assessee. The postal department has confirmed that the orders of assessment were despatched for service on the assessee only on 09.01.2012. A copy of the post-office letter in this regard is placed at page 133 of PB of assessee filed for AY 2001-02. 7. The provisions of section 153(2A) applicable for the relevant assessment years insofar as it is relevant for the present appeal reads as follows:- ( 2A) Notwithstanding anything contained in sub-sections (1), (1A), (1B) and (2), in relation to the assessment year commencing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of June, 2007, the provisions of this sub-section shall, notwithstanding anything contained in the second proviso, have effect as if for the words one year , the words twenty-one months had been substituted: Provided also 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, 2010, and during the course of the proceeding for the fresh assessment of total income, a reference under sub-section (1) of section 92CA is made, the provisions of this sub-section shall, notwithstanding anything contained in the second proviso, have effect as if for the words one year , the words two years had been substituted. 8. It is not in dispute before us that the 2nd proviso of section 153(2A) of the Act is applicable in the present case and therefore the order of assessment pursuant to the directions of Tribunal is required to be passed within nine months from the date on which the order of Tribunal is received by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or passing the order of assessment was 31.03.2006, the order of assessment was dated 28.02.2006. The order of assessment was, however, served on the assessee only on 18.04.2006. The question before the Court was, whether the order of assessment was barred by limitation and the date mentioned in the order of assessment should be ignored and only the date on which it was despatched to the assessee should be taken as the date of the order. The Hon ble High Court placed reliance on the decision of the Hon ble Kerala High Court in the case of Govt. Warehouse v. State of Kerala, [1988] STC Vol. 69 Pg. 62 , wherein the Hon ble Kerala High Court in para 14 observed as follows:- 14. The order of any authority cannot be said to be passed unless it is in some way pronounced or published or the party affected has the means of knowing it. It is not enough if the order is made, signed, and kept in the file, because such order may be liable to change at the hands of the authority who may modify it or even destroy it, before it is made known, based on subsequent information, thinking or change of opinion. To make the order complete and effective, it should be issued, so as to be beyond the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the revenue. Accordingly, the appeal is allowed. The impugned orders are set-aside. 14. In our view, the facts of the aforesaid case are squarely applicable to the facts of the present case. Following the aforesaid judgment of Hon ble High Court of Karnataka, the orders of assessment have to be held as barred by time and all the orders of assessment are therefore liable to be annulled and are hereby annulled. 15. The ld. DR, however, placed reliance on the decision of the Hon ble Calcutta High Court in the case of CIT v. Subrata Roy [2014] 45 taxmann.com 513 (Calcutta) wherein the Hon ble Court took the view that assessment order passed within limitation period cannot be doubted merely because the demand notice was served after 47 days of the limitation period. We are of the view that the aforesaid decision is contrary to the law laid down by the Hon ble High Court of Karnataka which is the jurisdictional High Court as far as this Tribunal and the present appeal is concerned. We are therefore bound to follow the decision of the jurisdictional High Court. 16. In view of the decision on the preliminary point, the other issues raised by the assessee in its appeal ..... 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