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TMI Blog2024 (2) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... (2), in relation to the assessment year commencing on the 1st day of April, 1971, and any subsequent assessment year, an order of fresh assessment in pursuance of an order under section 250 or section 254 or section 263 or section 264, setting aside or cancelling an assessment, may be made at any time before the expiry of one year from the end of the financial year in which the order under section 250 is received by the Principal Chief Commissioner or section 254 is 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 Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner: Provided that where the order under section 250 or section 254 is received by the Principal 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 Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, on or after the 1st day of April, 1999 but before the 1st day of April, 2000, such an order of fresh assessment may be made at any time to the 31st day up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid submission, and which found favor with the ITAT, was based on the contention of the respondent that the order of the ITAT dated 20 February 2015 had been given effect to by the AO itself on 12 March 2015. In view of the aforesaid, it was contended that the period for drawl of a draft and a final assessment order would have to be computed from that date. It is this submission which has come to be accepted by the ITAT and has led to the filing of these appeals. The appeals propose the following question of law for our consideration: - "(i) Whether on the facts and circumstances of the case the Income Tax Appellate Tribunal has erred in holding that the draft assessment order and final assessment order passed by the Assessing Officer, are barred by limitation under section 153(2A) of the Income Tax Act, 1961?" 3. For the purposes of evaluating the correctness of the submissions which were addressed on behalf of the appellants, we propose to take note of the following salient facts as they appear in ITA 64/2024. On 03 April 2007, the assessee filed its Return of Income which thereafter appears to have been selected for scrutiny assessment and a notice under Section 143( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judicial decisions of the Hon'ble Jurisdictional High Court of Delhi (supra) and the Hon'ble High Court of Kerala (supra). Allowing the additional grounds raised by the assessee, we hold that draft assessment orders and final assessment orders are barred by limitation. 40. Since we have quashed the assessment order as null and void being barred by limitation, we do not find it necessary to dwell into the merits of the case." 7. It was the correctness of the aforesaid view which was questioned by Mr. Bhatia before us. Mr. Bhatia submitted that the ITAT has clearly erred in seeking to interpret the word "received" as occurring in Section 153(2A) as being equivalent to knowledge being derived of the order passed by the ITAT. It was his submission that the decision in Odeon Builders as well as GE Energy Parts were clearly distinguishable since in those cases certified copies had in fact been obtained and it was the aforesaid facet which led to the Court answering the questions that stood posited against the Revenue. According to learned counsel, the word "received" cannot possibly be construed as intending limitation to be computed from the date when the Commissioner may have der ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessed at Rs. 125,52,57,206/- taxable at 15% being royalty and FTS. The assessee further preferred an appeal before Hon'ble ITAT, Delhi Bench, New Delhi. Hon'ble ITAT has restored back the matter to the Assessing Officer vide the consolidated order dated 20.02.2015. While restoring back, hon'ble ITAT has allowed a partial relief of Rs. 2,72,68,740/- on this issue Royalty from Brew Operator Agreement, which has been held to be not taxable in India. In view of the Hon'ble ITAT combined order dated 20.02.2015 in ITA No. 3701 & 3702/Del/2009, 5343/Del/2010 and 4608/Del/Del/11 which is a combined order for A.Y. 2005-06 to 2008-09. The income of the assessee is recalculated u/s 254 as under:- Income assessed u/s 143(3)/250 Rs. 125,52,57,206/- Less : Relief granted by the Hon'ble ITAT (Royalty from Brew Operator Agreement) Rs 2,72,68,740/- The other additions made in the assessment order under head Royalty on Handsets of Rs.78,53,40,000/- and Royalty on Infrastructure Equipments of Rs 39,04,76,313/- are also being reduced for giving statistical effect to the order of hon'ble ITAT. Net Taxable Income Rs. 5,32,88,790/- Appeal effect given as abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such a view would amount to rewriting 153(2A) and construing that provision contemplating receipt of the order by the "concerned" Commissioner or Principal Commissioner of Income Tax. 14. It thereafter proceeded to render the following significant observations: - "38. In other words, there can be no doubt that in all cases where the decision of the Income-tax Appellate Tribunal has gone against the Revenue, it is the Revenue as a whole which is the "aggrieved party". An individual Commissioner of Income-tax or Principal Commissioner of Income-tax can prefer the appeal on behalf of the Revenue as an aggrieved party. If the legislative intent was to confer the power to file an appeal only by the "concerned" Commissioner of Income-tax or Principal Commissioner of Income-tax or Chief Commissioner of Income-tax, then words to that effect ought to have been used. The use of the prefix "the" preceding the words Commissioner of Income-tax or Principal Commissioner of Income- tax in section 260A(2)(a) serves only the grammatical correctness of a preposition and nothing more. It is not to be read as meaning "that particular Commissioner of Income-tax" or the "concerned Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not when the concerned Commissioner or Principal Commissioner may have been served or had derived knowledge. It proceeded further to observe that once a responsible officer of the Department becomes aware of the order, the period of limitation would commence form that point in time. 16. In GE Energy Parts, the Court was concerned with the bar of limitation for imposing penalties as raised by virtue of Section 275 of the Act. It is relevant to note that Section 275 prescribed the outer limit which would operate for imposition of penalties from the end of the stipulated period when an order of the Commissioner of Appeals or the ITAT is "received". On facts, the Court in GE Energy Parts found that undisputedly although the Commissioner had received a copy of the order of the ITAT only on 01 November 2017 and had contended on that basis that the period of limitation should be computed from that date, the assessee had already been placed upon notice under Section 271(1)(c) on 16 February 2017. It also took into consideration that the Section 275(1)(a) order which was framed by the respondents was drawn on 22 May 2017 and thus the said date being liable to be accepted as constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal was dispatched by the registry of the Income-tax Appellate Tribunal on April 11, 2017 and received by the office of the Commissioner of Income-tax (Judicial) on April 17, 2017". The proof of service has also been enclosed to that letter. These facts have not been denied by the respondents. This court is, therefore, unable to accept the plea of the Income-tax Officer, Judicial-II that copy of the order of the Income-tax Appellate Tribunal was received only on October 31, 2017 and could, therefore, be sent to the Commissioner of Income-tax (International Taxation) only on November 1, 2017. 33. If an officer of the Department is allowed to choose a date on which a copy of the order which has to be given effect to or acted upon is sent to the officer concerned, it will defeat the very purpose for which the Legislature has stipulated definite time limits in various provisions of the Act for the authorities to perform their statutory tasks in a time bound manner. In other words, the mandatory period of limitation under section 275(1)(a) of the Act cannot be sought to be defeated by delaying the dispatch of the relevant order of the Income-tax Appellate Tribunal to the concerned "j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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