TMI Blog2018 (9) TMI 1798X X X X Extracts X X X X X X X X Extracts X X X X ..... l grounds of appeal of the assessee - IT(S)A No.44 to 46/CTK/2016, IT(S)A No.03/CTK/2017, IT(S)A No.08 to 10/CTK/2017, IT(S)A No.13 & 14/CTK/2017 - - - Dated:- 27-9-2018 - SHRI N.S. SAINI, AM SHRI PAVAN KUMAR GADALE, JM For the Appellant : Shri B.D.Ojha, AR For the Respondent : Shri Piyush Kolhe, CITDR ORDER Per Shri Pavan Kumar Gadale, JM: These are the appeals filed by the different assessees against the separate orders of CIT(A)-3, Bhubaneswar for the assessment years 2004-2005, 2005-2006 2006-2007. 2. Since the issues in all the appeals are common, they are clubbed and heard together and disposed off by this common order. For the sake of convenience, we shall take up appeal of the assessee i.e. Sri Trinadh Chowdary in IT(SS)A No.44/CTK/2016 for assessment year 2004-2005 and the facts narrated therein. 3. The grounds of appeal raised in the assessee s appeal i.e. IT(SS)A No.44/CTK/2016 in case of Sri Trinadh Chowdary for the assessment year 2004-2005 are as under :- 1. Because that the Ld. Commissioner of Income Tax (Appeals-3) erred in law as well as in fact by confirming the addition of ₹ 1,16,667/- on account of investments in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 ITR 383 (SC), and admit the additional ground and proceeded for hearing the case. 6. Brief facts of the case are that a search and seizure operations was conducted in the residential premises of the assessee at Srikakulam on 30.09.2005. Whereas the original assessment u/s.153A(b)/143(3) of the Act was completed on 31.12.2007 determining total income of ₹ 5,94,502/-. On appeal, the CIT(A)-2 confirmed the action of the AO. Aggrieved with the order, the assessee assailed the appeal with ITAT and the Tribunal vide order dated 10.10.2013 set aside the assessment to the file of AO to reframe the assessment de novo as per law. Accordingly, the AO based on the direction of the Tribunal completed the assessment determining total income of ₹ 9,49,855/- with additions and passed order u/s.153A/254 of the Act, dated 30.03.2015. 7. Against the reassessment order passed by the AO, the assessee preferred appeal before the CIT(A). In the appellate proceedings, the assessee reiterated the submission made before the AO whereas ld. CIT(A) has confirmed the action of AO and dismissed the appeal. 8. Aggrieved with the order of CIT(A), the assessee filed appeal before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities the said order was served, therefore, service of the reassessment order is valid and within the limitation period and prayed for dismissal of the appeal of assessee. 11. We have heard rival submissions and perused the materials available on record. Ld. AR s contention that the order passed by the AO u/s.153A(b)/254 of the Act is barred by limitation and it was served on the assessee/ld. AR on 06.04.2015. The ld. AR supported his arguments with the paper book and also referred to the earlier directions of the Tribunal in IT(SS)A No.13 to 17/CTK/2017, order dated 10.10.2013, wherein the Tribunal has restored the matter to the file of AO and observed at para 6 to 8, which read as under :- 6. we have gone through Ground Nos.1 to 3 taken by the assessee, wherein, in Ground No.1, assessee has taken the contention that Id OT(A) has not accepted the fact that the assessment order has been served on the assessee after 46 days from the period of limitation. Therefore, the assessment order is nullity in eyes of law. The second ground is that AO has violated the principles of natural justice by calling return of income u/s.!53A of the I.T.Act, 1961 and third ground is that A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same was served on 06.04.2015. Further ld. AR demonstrated the service of order with paper book along with copy of the notice of demand u/s.156 of the Act dated 30.03.2015 with endorsement of receipt of the order on 06.04.2015 for the said assessment year, which the Revenue has not disputed. Ld. AR vehemently emphasized that the reassessment order was passed beyond limitation period and is barred by limitation and supported his submissions with the decisions of coordinate bench of the Tribunal. 12. We have perused the decisions of the Tribunal and the supporting material placed on record. We found that there is no dispute raised by the Revenue in respect of serving of order on 06.04.2015 but the fact remains that the Revenue could not demonstrate with evidence that the order was prepared and has left office of AO on date of passing of the order, whereas the ld. DR submitted that the above order was prepared and was sent to the Additional/Joint Commissioner of Income Tax for approval before serving on the assessee and the order was passed on 30.03.2015. We found that this issue of service of the order was dealt by this coordinate bench of the Tribunal in the case of Geetarani Pan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 anything contain in section 153, the AO shall make an order of assessment or reassessment (a) In respect of each assessment year falling within six assessment years [and for the relevant assessment year or years] referred to in clause (b) of sub-section (1) of section 153A, within a period of twenty-one months from the end of the financial year in which the last of the authorisations for search under section 132 or for requisition under section 132A was executed. 11. A perusal of the above provisions show that the language used by the legislature in the above provision is in negativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 the case of CIT vs. Vegetable Products Ltd., 88 ITR 192 (SC). 16. Coming to the facts of the instant case, it is not in dispute that the last authorisation u/s.132 of the Act was executed on 28.5.2014. Twenty- one months from the end of the financial year 2014-2015 expires on 31.12.2016. Therefore, the orders of assessment in pursuance to the said search for the assessment years 2009-2010 to 2015-2016 were to be made on or before 31.12.2016. 17. It is not in dispute that the orders of assessment under consideration were dispatched only on 7.1.2017. Hence, in our considered opinion, the said orders of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Authority will ensure that the assessee is not prejudiced by the undue or irrelevant addition or assessment. Secondly, the approval by Senior Authority will also ensure that proper enquiry or investigation are carried out by the Assessing Authority. Thus, the above provision provides for mental application of a Senior Officer of the Department, which in turn, provides safeguard to both i.e. Revenue as well as the assessee. Therefore, this important provision laid down by the legislature cannot be treated as a mere empty formality. The same view was expressed by the Pune Benches of the Tribunal in the case of Akil Gulamali Somji vs ITO, in IT Appeal Nos.455 to 458 (Pune) of 2010 order dated 30.3.2012, wherein, it was held that when the approval was granted without proper application of mind, the order of assessment will be bad in law. The Hon ble Bombay High Court in the case of CIT-II Vs Shri Akil Gulamali Somji, in Income Tax Appeal (L) No.1416 of 2012 order dated 15.1.2013 concurred with the view of the Tribunal that not following of the provisions of section 153D of the Act will render the related order of assessment void. 25. In the instant case, we find that the Supervi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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