TMI Blog2023 (8) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... ot quoted before it was physically signed by the AO. The generation of DIN subsequently and generation of intimation to be sent to assessee are of no consequence for the purpose of assessment and raising the demand. Decided in favour of assessee. Extension of Period of limitation - The orders as uploaded on the ITBA were incomplete and that would only come to aid of assessee for extending the period of the limitation for filing the appeal but order does not become void on that ground and there is no case of time barred assessment. So issue number two is decided against the assessee. To make the order complete and effective, it should be issued, so as to be beyond the control of the authority concerned, for any possible change or modification therein. That is best achieved with the introduction of DIN but once the order is complete in all respects and within the prescribed period, the actual service of the order may be beyond that period and that will only give rise to question of start of limitation period for challenging it but that does not invalidate the order itself. Thus the orders as uploaded on the ITBA were incomplete and that would only come to aid of assessee f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) has erred in law and on facts in upholding the charging interest u/s 234A of the Act, which is bad in law, the same may kindly be deleted. 10. Without prejudice to all above points, the Ld. CIT (A) has erred in allowing the initiation of penalty proceedings u/s 271 (l)(c) of IT Act, 1961, which is bad in law, the same may kindly be deleted. 11. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal before or at the time of hearing and all the above grounds are without prejudice to each other. 4. The relevant facts as picked up from the matter on record and submissions are that the appellants are family members whose LTCG arising on sale of certain shares which were purchased simultaneously by each assessee in the same company and have been added back to the income of the each assessees vide separate assessment orders passed under Section 153A read with Section 143 (3) of the Income Tax Act. 1961 ( the Act ) and which stands confirmed by Ld CIT(A). 4.1 The details of the Assessees/appellants as provided in the submission are hereunder: Name of the Assessee/Appellant Details of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated separately. 6.1 Ld AR has also given a table showing the details of the two separate assessment orders in the case of the Assessees: Name of the Assessee Details of Assessment Order received by Post Details of Assessment Order uploaded on the ITBA Portal Comments Abhimanyu Chaturvedi Dated 09.08.2021 (247 pages). Received on 16.10.2021 Dated 09.08.2021 (4 pages). DIN generated on 17/09/2021 is having Document No. (DIN) ITB A/AST/M/153 A/2021-22/1035679086(1). DIN Letter at p. 8 of the PB and the ITBA Assessment Order at p. 4 of the PB filed in Abhimanyu s Case The DIN has been generated as an afterthought of more than a month since the order was dated. The DIN is also not mentioned in either of the two Mallika Chaturvedi Dated 09.08.2021 (257 pages) received on 16.10.2022 Dated 09.08.2021 (4 pages). DIN generated on 18/09/2021 is having Document No. (DIN) ITB A/AST/S/2021-22/1035704817(l)(l). DIN Letter at p. 8 of the PB and the ITBA Assessment Order at p. 4 of the PB in Mallika ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This generated DIN is also communicated to assessee . In this case, after generation of DIN, the assessee was sent intimation letter through ITBA for order u/s 153A of the I.T.Act, 1961 on 17.09.2021. It is further submitted that the CIT(A) has already adjudicated the issue of DIN in para No. 13 of its order dated 10.08.2022 wherein it has been held that It has no bearing on the validity of the Assessment Order , which was duly uploaded on the ITBA on 17.09.2021 and intimation sent on 17.09.2021 after generating DIN ITBA/A3T/S/91/2021- 22/1035690268(l) well within the time barring limitation date of 30.09.2021. 4. It is worth to mention here that the limitation date for passing of assessment order for AY-2013-14 was 30.09.2021 and assessment order was uploaded on ITBA before 30.09.2021. In view of the above facts, it is clear that the assessment order was passed well within time and communicated to the assessee as well before time barring date i.e. 30.09.2021. Supporting documents i.e. intimation letter for order u/s 153A of the Income Tax Act, 1961 and case noting history on ITBA are enclosed for your kind perusal. In view of these facts, it is evident that the DIN for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted any evidence to show that the emails were sent from ITBA Portal and the affidavits of assessee in that regard are in a paper book. Reliance was placed the judgment of Hon ble Supreme Court of India in State of Andhra Pradesh Vs. M. Ramakishitah co. (1994) 93 STC 406 (SC,) CIT vs. Rai Bahadur Kishore Chand And Sons in ITA no. 522 of 2007 dated 13.03.2008, CAGIT Vs. Kappumalai Estate (1998) 234 ITR 187 (Ker.), Government Wood Works Vs. State of Kerala (1988) 69 STC 62 (Ker) and CIT Anr. Vs. BJN Hotels Ltd. [2016] 382 ITR 110 (Karn), Kanubhai M. Patel (HUF) V Hiren Bhatt (2011) 334 ITR 25 (Guj.) to submit that if the assessment order are not served before time barring date of assessment then they are considered to be non-est. Reliance in this regard was also placed on the Tribunal order in ITA No. 3556 3557/Del/2015 order dated 08.02.2019 in the case of Pankaj Sharma vs. DCIT and ITA No. 415 421/CTK/2019 in Sujata Panda, The X-ray clinic vs. ACIT . 8.3 It was also mentioned that notice of Tax Demand dated 09.08.2021 was also barred and not enforceable as it was received by the assessee only after 30.09.2021 and the judgment of Hon ble Delhi High Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was uploaded before the date of barring of assessment and thereafter Ld. DR has heavily relied the judgement of Jharkhand High Court in WP(P) no. 1901 of 2022 dated 21.02.2023 title Prakash Lal Khandelwal vs. CIT Ranchi to contend that Hon ble High Court has held that generation of DIN and its communication subsequently, does not make the assessment order barred by limitation. 11. The Bench has given thoughtful consideration to the matter on record and submissions. The issues to be decided first are ; First , if there was any illegality in the impugned assessment orders for the reason that the Assessment order did not have DIN quoted on its body. Secondly , if there was any illegality in the impugned assessment orders for the reason the same was incomplete when uploaded on ITBA and be considered passed after limitation. 12. In regard to first issue it will be appropriated to reproduce here the complete text of the Circular no. 19/2019 while making the crucial part of it in BOLD : New Delhi, dated the 14th August, 20 19 Subject: Generation/Allotment/Quoting of Document Identification Number in Notice/Order/Summons/letter/correspondence issued by the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director General of income tax. In cases where manual communication is required to be issued due to delay in PAN migration the proposal seeking approval for issuance of manual communication shall include the reason for delay in PAN migration. The communication issued under aforesaid circumstances shall state the fact that the communication is issued manually without a DIN and the date of obtaining of the written approval of the Chief Commissioner / Director General of Income- Tax for issue of manual communication in the following format- This communication issues manually without a DIN on account of reason/reasons given in para 3 (i)/3(ii)/3 (iii)/3 (iv)/3 (v) of the CBDT Circular No ... dated .... (strike off those which are not applicable) and with the approval of the Chief Commissioner / Director General of Income Tax vide number .... dated .. .. 4. Any communication which is not in conformity with Para-2 and Para-3 above, shall be treated as invalid and shall be deemed to have never been issued . 5. The communication issued manually in the three situations specified in para 3- (i), (ii) or (iii) above shall have to be regularised within 15 working days of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities (ITA) in e-Filing portal . Such intimation along with Letter/Notice/Orders also made available in View/Download Letter/Notice/Orders screen if users wish to dispatch the same through post. Steps to be followed for DIN generation in ITBA application are as below:- i. Navigate to Generate Letter/Notice/Orders ii. Select Manual to System option screen. iii. User will enter the Date of Issue and Manual File No. iv. Click on Save and Generate DIN . NOTE: DIN will be generated in the system and will be displayed in column System Doc. No. User should physically sign the document after quoting DIN before uploading, as the assessee will be viewing the uploaded document on their e-Proceeding account on e-filing portal. v. User will attach the file and click on Save NOTE: User will be able to upload the document with the DIN no. generated in ITBA system until the row containing that DIN is deleted by the user from the system. vi. Click on Generate button to complete the process in ITBA system. The system generated Intimation letter will also be generated for reference and will be available in View/Download Letter/Notice/Orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITBA portal. Subsequent notice u/s 143(2) of the Act was also issued through ITBA Portal. Thus, the notices for the purpose of assessment were issued through ITBA Portal and if thereafter the assessment was carried out manually the assessment order should have mentioned the aforesaid fact to comply with the mandate of Circular with regard to communications issued manually. 16. Further, the Bench takes note of the instructions dated 25.10.19, which lay down that when a document is prepared outside ITBA system and uploaded manually, a DIN is required to be generated prior to uploading the document in ITBA. The instructions make it imperative that the DIN so generated has to be used for reference and quoting a document number in a physical copy. The instructions specifically provide that the user (assessing officer) should physically sign the document after quoting DIN, before uploading. Meaning thereby that generation of DIN is condition precedent for making an assessment manually or otherwise on the ITBA and then before it is uploaded on ITBA, first it should have DIN bearing on its face and then only it should be signed. Thus for the purpose of section 153A/143(3) of the Act, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only after obtaining necessary approval of the relevant authorities and communication so issued must indicate the exceptional circumstances provided in the Circular itself. It has been made very clear by the Board that any communication which is not in conformity with Para 2. and 3 of the Circular shall be treated as invalid and shall be deemed to have never been issued. 11. The impugned order is hit by this mandate of the Board and, therefore, we are inclined to adjudicate Ground No. 8 [supra] in favour of the assessee by holding that the order dated 15.10.2019 framed u/s 147/144C(13)/143(3) of the Act is invalid and deemed to have never been issued as it fails to mention DIN in its body by adhering to Circular No. 19/2009 dated 14.08.2019. 18.3 This order of co-ordinate Bench has been upheld by the Hon ble Delhi High Court in CIT vs. Brandix Mauritius Holdings Ltd. (supra) with following relevant findings in para 16 and 17 as follows 16. The final assessment order was passed hy the Assessing Officer(AO) on 15.10.2019, under Section 147Z144(C)(13)/143(3) of the Act. Concededly, the final assessment order does not hear a DIN. There is nothing on record to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed through ITBA rather Ld. Counsel was able to demonstrate that as of now also there are 4 or 7 pages orders on the ITBA. There appears to be an error which may be attributed to system glitch wherein the ITBA Portal does not have the complete order and only 4 or 9 pages respectively were uploaded. However, the Bench is of considered view that service of incomplete order on ITBA may be worst a case of non-service of the order and as for the purpose of filing the appeal only it may be relevant. The assessment order does not become void for that reason. It is like a case where copy supplied was not legible or incomplete and only when legible or complete copy is supplied to the assessee the limitation period would start to run. 19.1 Certainly, 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 compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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