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TMI Blog2025 (2) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... issue goes to the root of the matter and give rise to a pure question of law. The Ld. A.R therefore prayed that the additional ground may be admitted for adjudication. In defense of arguments the Ld. Counsel for the assessee relied on the decisions of Hon'ble Supreme Court in the case of Jute Corporation of India Ltd. Vs CIT in 187 ITR 688 and National Thermal Power Co. Ltd v. CIT [1998] 229 ITR 383 (SC). 03. The Ld. D.R on the other hand strongly objected to the admission of additional ground for the reason that the same was not adjudicated before the AO or Ld. CIT(A) and is being raised for the first time before this forum. The Ld. D.R therefore prayed that the legal issue may be dismissed or alternatively may be restored to the file of AO/Ld. CIT(A) which the Bench deems fit. 04. After hearing the rival contentions and perusing the material on record, we find that the issue raised by the assessee is purely legal issue the facts qua which are available in the records itself and no further verification of facts is required from any quarter whatsoever. We note that the assessee has raised a legal issue that the assessment framed by the ld. AO vide order dated 30.12.2015, is barr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and prejudicial to the interest to the Revenue. Finally, the order was revised by the ld. PCIT and in the set aside proceedings, the AO, after calling for details and information from the assessee which were not furnished by the assessee, added the amount of share capital and share premium of Rs. 10,88,50,000/- to the income of the assessee besides making other addition of Rs. 18,600/- on account of data processing charges and Rs. 50,814/- on account of subscription and donation debited in the Profit and Loss account. 06. The order was in appeal before the ld. CIT (A) and the CIT (A) dismissed the appeal on merit although the legal issue raised before us was taken up before the ld. CIT (A). 07. The ld. AR vehemently submitted before us that the order passed by the ld. AO u/s 263/143(3)/147 of the Act dated 30.12.2015, should have been passed and served upon the assessee on or before 31.12.2015, in terms of provision of Section 153 of the Act. However, they said was order served upon the assessee on 05.01.2016, meaning thereby that the assessment framed was hopelessly barred by limitation and is non-est and ex-facie nullity in the eyes of the law. The ld. AR submitted that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by the CIT DR in his communication dated 2.9.2024 is apparent and was served on from the on 5th Jan, 2016, which is clearly barred by limitation period. The ld. AR thereafter referred to the decision of Hon'ble High Court in case of PCIT vs. Nidan (supra) wherein in Para 7, the Hon'ble Court noted that the assessment order becomes an order only when it is in fact communicated to the assessee and therefore, barred by the limitation period. The ld. AR also referred to B J N Hotels Ltd. (supra), wherein the Hon'ble Karnataka High Court as held that the order is to be issued so as to beyond the control of the authority is concerned within the period of limitation. However, apparently, the orders were shown by the assessee after period of limitation and hence, the orders are barred by limitation. The ld. AR also referred to the decision of Kerala High Court in case of Government Wood Works Vs. State of Kerala (1988) 69 STC 62, which was also referred by the Karnataka High Court in B J N Hotels Ltd.(supra), wherein it has been held that in absence of dispatch date made available to the court from the records, to prove that the order is issued within the prescribed peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2016. 4. Relevant to the first question sought to be urged, the facts are that the assessment order dated 30th December 2016, was according to the Assessee, dispatched by the Assessing Officer (AO) by post only on 7th January, 2017 and was received by the Assessee on 9th January 2017. Contending that in terms of Section 153-B of the Act the assessment order has to in fact be communicated to the Assessee on or before 31st December, 2016 and therefore, was time barred, the Assessee assailed the said order before the Commissioner Income Tax (Appeals) [CIT (A)] apart from other grounds. However, the CIT (A) observed that the assessment order was dated 30th December, 2016 and there was no material to show that the AO had revisited the order thereafter. Accordingly, the CIT (A) upheld the order relying on the decision of the Calcutta High Court in Commissioner of Income Tax, Central-1 v. M/s. Binani Industries Ltd. (2015) 59 Taxmann.Com 389 (Cal). 5. As far as the present case is concerned, the Respondent Assessee could produce before the ITAT the envelope in which the assessment order was dispatched by the AO by speed post and also produce a copy of the tracking record of speed p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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." 8. In the same judgment in BJN Hotels Ltd. (supra), the Karnataka High Court noted: "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 courts following the judgment of Kerala High Court in the case of Government Wood Works vs State of Kerala (1988) 69 STC 62 has held that in the absence of dispatch date made available to the Court from the records, to prove that the order is issued within the prescribed period, order passed by AO is barred by limitation. The said judgment squarely applies to the facts of the present case." 9. On the other hand, the facts in the decision of the Calcutta High Court in M/s. Binani Industries Ltd. (supra) did not involve dispatch of the assessment order by post at all. The judgment reveals that the assessment order was passed on 31st March, 2005, the last date by which had to be made and the Authorised Representative (AR) of the Assessee visited the office of the Department and collected it on 13th April, 20 ..... 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