TMI Blog2024 (4) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... CA For the Revenue : Ms. Indu Bala Saini, Sr. DR ORDER PER YOGESH KUMAR, U.S. JM: This appeal is filed by the Assessee against the order of Learned Commissioner of Income Tax (Appeals) Delhi [ Ld. CIT(A) , for short], dated 30/01/2019 for the Assessment Year 2013-14. 2. Grounds of the Assessee are as under:- 1. That the learned Commissioner of Income Tax (Appeals) has grossly erred both on facts and in law in dismissing the ground of the appellant that assessment made u/s 143 (3) is barred by limitation as they were required to be completed by 31-12-2016 as per section 153 of the Income-tax Act while the same was made in January, 2017. 2. That the learned Commissioner of Income Tax (Appeals) has grossly erred in law as well as on facts in confirming the addition of Rs 1,46,60,086/- on account of rejection of claim of Performance Incentive paid during the year because: a) he has failed to appreciate that the appellant in its computation of income has added back the provision of performance incentive of Rs 1,11,48,788/- and claimed Rs 1,46,60,086 paid during the year but the AO has added back the entire amount of payment without giving the benefit of amount which was already added ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative relied on the orders of the Lower Authorities and sought for dismissal of the Appeal filed by the assessee. 6. We have heard both the parties and perused the material available on record. It is not in dispute that the limitation for passing the assessment order in the present case was on or before 31/12/2016 i.e. within 21 months from the end of assessment year in which the income was first assessable. Apparently, the assessment order has been dispatched by the A.O. only on 02/01/2017, which has been served on the assessee only on 03/01/2017, the assessee has produced the online postal track consignment which reproduced as under: It is found from the above that the assessment order has been dispatched by the A.O. after the lapse of period of limitation prescribed under law. 7. The identical issue came for consideration before the Coordinate Bench of the Tribunal in the case of Pankaj Sharma Vs. DCIT Central Circle in ITA No. 3556 and 3557/Del/2017 and vide order dated 08/02/2019, by relying on the judicial precedents held that, when the Assessment Order has been passed within the period of limitation, but the Assessment Order has been dispatched the subsequent date, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, 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), we find that notice was issued on the same date at 11 AM and it was not possible for the assessee to file submission and could not produce details as called for and in view of this, assessee was not able to cooperate with the assessment proceedings. 7. The Hon'ble Orissa High Court in the case of Radhika Charan Banerjee v Sambalpur Municipality, AIR 1979 Orissa 69, has held that right of appeal wherever conferred includes a right of being afforded opportunity of being heard irrespective of language conferring such right that is a part and parcel of principles of natural justice. Where an authority is required to act in a quasi-judicial capacity, it is imperative to give appellant an adequate opportunity of being heard before deciding the appeal. The aim of the rule of natural justice is to prevent miscarriage of justice and denial of principles of audi alteram partem results into such miscarriage of justice. Therefore, the Learned CIT(A) should have afforded reasonable opportunity of being heard to the assessee. Therefore, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the provisions of Section 153D of the Act was obtained and, therefore, the impugned order of assessment is barred in law. 20. We find force in both the above legal issues raised by the assessee for the reason discussed hereunder. 21. In the instant case, it is not in dispute that though the impugned order of assessment is dated 31.3.2015 was issued and served manually only on 8.4.2015 on the Authorised Representative of the assessee. This Bench of the Tribunal in the case of M/s. Nidan vs ACIT, (2018) 53 CCH 0046 (Cuttack Tribunal) has held as under: 4. In all the above seven appeals, the assessee raised a legal ground which is that the orders of assessment passed by the Assessing Officer are barred by limitation. 5. The facts relating to this issue are that a search and seizure operation was conducted in the case of the assessee on 28.5.2014. In pursuance to the said search, order u/s. 153A r.w.s 144 of the Act was passed for the assessment years 2009-2010 to 2014-15 and assessment for the assessment year 2015-16 was made u/s. 144 of the Act. The said orders of assessment were served upon the assessee on 9.1.2017 though all the orders were dated 30.12.2016. 6. Before the CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee it becomes order of assessment . Thus, in our considered opinion, to become a legal valid order of assessment, its communication must be within a period of limitation prescribed by the law though the communication may end after the prescribed period of limitation. Our above view derives support from the decision of Hon'ble Karnakata High Court in the case of B J N Hotels Ltd (supra), wherein, it has been held as under: That the revenue is neither able to point out from the records that the assessment orders were dispatched on 27.4.2007 nor produced the dispatch register to establish that the orders were complete and effective i.e. it was issued, so as to be beyond the control of the authority concerned within the period of limitation i.e. 29.4.2007. Admittedly, the assessment orders were served on the assessee on 30.4.2007. hence, the assessment orders passed were barred by limitation. In the above decision, Hon'ble High Court follows its one earlier decision and has stated as under: An identical issue was before this Court in ITA No.832/2008 (D.D. 14.10.2014 in the case of Maharaja Shopping Complex vs DCIT. This court following the judgment of Kerala High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is barred by limitation. 23. In the instant case, the alleged approval letter dated 27.3.2015 of the Addl. CIT, Range-1, Bhubaneswar reads as under: Despite a reminder given on 19th March, 2015 to submit the time barring draft assessment orders for approval u/s. 153D on or beforej23i03.2015, the draft orders in M/s. Neelachal Carbo Metalicks Pvt. Ltd. Group of cases has been received in this office only on ill 26th March, 2015 in the afternoon. The draft orders having being submitted only 5 days before final orders are getting barred by limitation,, I have no other option but to accord the approval to the same as the approval is statutorily required u/s. 153D, even though there is no time left for undersigned to ensure that all the points raised in the appraisal report, the appellate proceedings, audit inspection etc. are duly taken into account, and the enquiries and investigations that are required to be made are actually made before finalization of the assessment orders. It would have been much better and in the interest of Revenue, if you had submitted the draft orders atleast one month earlier so as to allow the undersigned sometime to go through and analyse the same vis-a-vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh in hand. The Assessing Authority thereafter has never communicated his findings of the further enquiry to the Supervisory Authority and not taken the approval of justification of his findings. Thus, in our considered opinion, alleged approval letter dated 27.3.2015 of the Addl. CIT, Range1, Bhubaneswar does not constitute the approval which is envisaged by the provisions of section 153D of the Act. Thus, following the decision of the Hon'ble Bombay High Court in the case of Akil Gulamali Somji (supra), we hold that the impugned order of assessment is void and bad in law. Therefore, the impugned order of assessment is hereby cancelled and Ground No.2 and Ground No.4 of appeal in case of both the assessees are allowed. 13. We considering the facts and circumstances of the case and the orders of lower authorities and the judicial precedence and applying the ratio of judgment of above decision in the present case, found that the reassessment order is dated 30.03.2015 and the same was served on 06.04.2015, which is not disputed by the Revenue and which is similar facts of the decision of coordinate bench of the Tribunal in case of Geetarani Panda (supra), where service of order i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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