TMI Blog2019 (2) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... und no. 1 raised by the assessee - I.T.A .Nos. 3556 And 3557/Del/2015 - - - Dated:- 8-2-2019 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACOUNTANT MEMBER For The Appellant : Shri Kapil Goel, Adv. For The Respondent : Smt. Sulekha Verma, CIT(DR) ORDER PER H.S. SIDHU, JM These appeals filed by the Assessee are directed against the respective Orders of the Ld. CIT(A), Ghaziabad relevant to assessment years 2010-11 2011-12. Since the issues involved in these appeals are common and identical, hence, they were heard together and are being consolidated by this common order for the sake of convenience, by dealing with the facts and circumstances of the case of ITA No. 3556/Del/2015 (AY 2010-11), which will apply mutatis mutandis in other appeal. In both the appeals, the assessee has raised as many as 08 grounds of appeal respectively, but he only argued no. 1 raised in both the appeals, which is legal in nature. The following is a common legal ground no. 1 raised in both the appeals:- 1. That the impugned order as passed by the Ld. AO u/s. 153A/143(3) of the I.T. Act on 28.3.2013 ought to have been cancelled / annulled by the Ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore lower authorities containing revenue dispatch record etc.; authentic order sheet entries from case records; notice u/s. 142(1) dated 18.9.2012 and 14.12.2012; Reply dated 29.1.2013; Order sheet entries; written submission before CIT(A) (16.10.2014); remand report dated 13.2.2015; rejoinder dated 25.2.2015; second rejoinder dated 10.3.2015; third rejoinder dated 12.3.2015; statements of assessee recorded at the time of search action u/s. 132; Hon ble Allahabad High Court in the case of Smt. Kusum Aggarwal (Writ Tax No. 822 to 2016); Hon ble Chattishgarh High Court recent decision in Ardent Steel Limited (Writ Petition 168/2016) on issue meaning; Allahbad High Court decision in case of Raj Kumar Jaiswal ITA No. 25/2010 (28.2.2017). In another paper Book which is having the copies of Ld. CIT(A) s order in both the years; Remand Report of AO dated 13.2.2015 (Paper Book in ITA 3557/Del/2015) same in other year; Evidence for postal booking and dispatch register etc. (Paper Book in ITA No. 3557/Del/2015); Affidavit of assessee order booked for posting on 1.4.2013 at 19:20 hours in evening and also enclosed the copy of ITAT, Cuttack Bench decision dated 05.7.2018 in the case of Geeta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the persons from the business post office centre comes and collect the envelopes of speed post from the different offices and then hand it over to the head office of the post office for sorting and further send it for delivery . Apparently, India post centre gives the date when the items are booked in the head office for delivery and it is not the date on which the items are collected from the offices by the persons of the post office. Hence, apparently the speed post no. which is signed by the AO on 28.03.2013 shows that the dispatch was made on 31.03.2013. In this light, also even on facts, there is no delay. d. The time limit for completion of assessment and reassessment has been given u/s 153(1) and this time limit cannot be compared with the limitation which is given u/s 149 of the Act, which is for the issue of notice u/s 148 of the Act. For better appreciation, both these section 153(1) and Section 148 are reproduced as under: Section 153(1) Time limit for completion of assessments and reassessments. 153.(1) No order of assessment shall be made under section 143 or section 144 at any time after the expiry of- ( a) two years from the end of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139. Hence, from the above, it is apparent that Section 149 speaks that no notice u/s 148 shall be issued whereas Section 153 does not give the word issued. It says that no order of assessment shall be made that means it clearly gives the time limitation for completion of assessment and reassessment and not for the issue of assessment order. The different words used by the legislature in different sections clearly proves that by 31.03.2016 only the assessment/reassessment has to be made and not issued or send . Hence, the comparison by the appellant of Section 149 and Section 153 is wrongly made. e. From the above, it is apparent that the intention of legislature is to complete the assessment and if the assessment order reaches the appellant within the reasonable time, it cannot be said that it is barred by limitation. Apparently, the assessment order was passed on 28.03.2013, collected f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is within limitation and the order was dispatched on 31.03.2013. As the assessment was made within limitation as per provisions of section 153(1) of I.T. Act, the assessee s contention may kindly be rejected. 5.3.3 In rejoinder report the appellant has reiterated the facts as mentioned his earlier submission. 5.3.4 I have considered the rival contentions and the facts of the case. I find that the requirement of the law is that assessment order should be made under section 143(3) within given period. The law does not require service of such order within the given period. In the present case, the said period ended on 31.03.2013. The order is dated 28.03.2013 and as per the appellant it was dispatched through speed post on 01.04.2013 and assessee received it on 02.04.2013. The appellant on these facts submits that the order is time barred. In support of the same, the appellant has submitted a copy of speed post track report which was sent to the Assessing Officer for his comments. The assertion that speed post was booked on 02.04.2013 is not commented upon by Assessing Officer in his report and it can be presumed that he does not rebut this claim of assessee appellant. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order passed by the AO was within the limitation and not barred by limitation. The plea taken by the learned counsel for the assessee is without any merit, and, hence, the same is rejected. In present case, the evidence proves that the once the assessment order has been given for speed post to a third person (which the appellant claims to be a notice server) be it a postman or notice server of the department, it is out of hands of the assessing officer. The fact that the order has been approved by Addl CIT, has been shown to have been dispatched in the Dispatch and handed over to third person for speed post prior to time barring date prove that the order was made, op or before 31.03.2013. In facts and circumstances of the case, I hold that the impugned assessment order has been made within stipulated time. Therefore, this ground of Appeal is rejected. 5.1 After perusing the aforesaid finding of the Ld. CIT(A), we find that AO in his remand report has submitted that as per record, the assessment was completed on 28.3.2013 which is within limitation and the order was dispatched on 31.3.2013. Hence, the assessment was within limitation as per provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 AO has not given reasonable opportunity to the assessee to produce any evidence in support of return and has violated the principles of natural justice insofar as the issuance of notice u/s.l43(2) is concerned. We also find that Id CIT(A) has dismissed these grounds. We also find from the orders of the AO as well as Id CIT(A) that AO has not given reasonable opportunity of hearing before passing the orders to the assessee. Therefore, in our opinion, AO and Id CIT(A) has passed the orders without following principles of natural justice. In respect of notice under section 143(2), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Panda Ors. Vs. ACIT, IT(SS)A Nos.01 02/CTK/2017, dated 05.07.2018, wherein the Tribunal observed as under :- 19. We have heard the rival submissions, perused the orders of lower authorities and materials available on record. In the instant case, the assessee has raised two legal issues. Firstly, the order of assessment being issued after the statutorily permitted time is barred by limitation. Secondly, no requisite approval as envisaged under the provisions of Section 153D of the Act was obtained and, therefore, the impugned order of assessment is bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. 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 negative and the words used are order of assessment and not only assessment . The word order denotes a command which is to be followed by somebody else. Unless the command is communicated to the person by whom it has to be followed, it does not become an order . 12. In our considered view, simply determining the total income of an assessee and determining its tax liability on a piece of paper and signing the same may constitute an assessment but only on its communication to the assessee it becomes or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 assessment were time barred and consequently, we set aside the same and allow this ground of appeal of the assessee for all the seven years under appeal. 22. In view of above, as in the instant case, the communication process of the assessment was not initiated admittedly within the prescribed period of limitation, hence it did not become an order of assessment within the period of limitation. We, therefore, have no hesitation in holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. 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 Supervisory Authority has himself admitted that because of reasons stated by him, could not apply his mind and has accorded the approval mechanically to meet the requirements of law as the requirement was merely a formality. The said Supervisory Authority had a duty towards both the assessee as well as the Revenue which was failed to be performed in the instant case. 26. Further, we find that the approving authority h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
