TaxTMI 
TaxTMI 
2014 (9) TMI 308
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.... and there was nothing to show that the assessment left the control of the AO before expiry of the limitation period. 3. For that the Ld. CIT(A) erred in relying on the so called report of the Notice Server when the assessee never refused to accept any notice of the department, even otherwise there was no evidence to show as to why the assessment was held up by the AO without dispatch for 47 days." 3. Briefly stated facts are that the relevant assessment year is 2006-07 and assessee filed his return of income on 31.07.2006. Thereafter, notices u/s. 143(2) and 142(1) of the Act were duly issued and served on the assessee and assessment was framed u/s. 143(3) of the Act vide order dated 31.12.2008. Certain additions were made and assessee challenged the additions in appeal before CIT(A). Before CIT(A), assessee took first issue as regards to assessment being barred by limitation as assessment order and demand notice were served 47 days after expiry of limitation period and there is no evidence that the assessment was completed before the end of limitation period. During the course of appellate proceedings before CIT(A), assessee claimed that the assessment order along with de....
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....that it should be communicated within the period prescribed." The jurisdictional High Court in the case of India Ferro Alloy Industry Pvt. Ltd. vs. CIT, 202 ITR 671(Cal) on the issue involved has held as under: "what is required for completion of the assessment is the determination of the tax liability and issue of demand notice but certainly not the service of the same on the assessee. Similar view was taken by the Apex Court in Commissioner of Income Tax, West Bengal III vs. Balkrishna Malhotra - (1971) 81 ITR 759 (SC), and also in - (1) Rm P. R. Viswanathan Chettiar vs. Commissioner of Income Tax, Madras, 25 ITR 79 (MAD), (2) Ramanand Agarwalla vs. Commissioner of Income Tax, North Eastern Region, Shiliong, 151 ITR 216 (Gauhati), (3) Badri Prasad Bajoria vs. CIT (1967) 64 ITR 362 (Cal), (4) Kodidasu Appalaswamy And Suryanarayana vs. Commissioner of Income Tax, AP (1962) 46 ITR 735 (AP), (5) Esthuri Aswathiah Vs. Commissioner of Income Tax, Mysore, (1963) 50 ITR 764 (Mysore). In view of above, it is held that the assessment was completed within the limitation period as provided under the Act and not barred by limitation. The ground no.2 is dismissed." Aggrieved, a....
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....to para 6 of CIT(A)'s order and stated that, first of all, assessment order and demand notice were handed over to Departmental Notice Server for service of the same on the assessee but as reported by the Notice Server, the assessee refused to accept the assessment order and demand notice and later on assessment order and demand notice were sent by Registered Post. Further, Ld. Sr. DR relied on the time limit for completion of assessment as prescribed u/s. 153(1) of the Act and stated that as per this provision, only assessment order is to be made and it is no where mentioned that it needs to be served. He argued that the period of limitation is for completion of assessment only and not for communication of assessment order to the assessee. According to Ld. Sr. DR, the limitation period prescribed in section 153 of the Act is the period within which AO has to complete one stage of the proceedings i.e., the assessment of the income and the determination of tax payable but it is not necessary that terms of the order of assessment should also be communicated to the assessee within that period. According to Ld. Sr. DR, what is required for completion of assessment is the determination o....
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.... passed within the prescribed period of limitation but the same is served on the assesse after a long delay, without there being an explanation coming forward for such delay, in the absence of any explanation, whatsoever, it can be presumed that the order was not made on the date on which it is purported to have been made. Here, in the present case before us, the revenue has not furnished any explanation and has not produced any documentary evidence despite repeated directions on 27.10.2011 and 09.07.2012 that let the assessment records and dispatch records be produced for verification. Rather revenue has not objected or has not contested the fact that the assessment order was dispatched on 12.02.2009 and same was received on 16.02.2009. In the above given facts, now we have to consider the case law cited by Ld. counsel for the assessee as well as by Ld. SR DR. 7. First case law referred by Sh. S.M. Surana of Hon'ble Gujarat High Court in the case of KanuBhai M. Patel(HUF) V Hiren Bhatt(2011)334ITR25(Guj)wherein the concept of date issue of notice, which means when it will leave the control of the authority concerned. Hon'ble Gujarat High Court discussed the expression 'issue' as ....
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.... "5. We find no force in the contention raised by the Learned counsel for the revenue. The basic question to be decided in this case is "Whether the impugned assessment order was passed within the statutory period of limitation upto 31.3.2004 or not?" The Tribunal after perusing the evidence on record and taking into account the non-production of assessment record before the Bench has given a finding of fact that the impugned assessment order for the assessment year 2001-02 was passed after the statutory time limit. The Tribunal has noted the fact that the revenue was given more than 5 opportunities to produce record of the Department to challenge the specific grounds of appeal taken by the assessee to the effect that assessment order dated 26.3.2004 was not served upon him within the statutory period of limitation and as such the same is liable to be quashed being passed after the statutory time limit and ultimately, the Departmental Representative stated before the Tribunal that the matter may be decided in the light of the facts on record of the case. While dismissing the appeal of the revenue, the Tribunal has given a categoric finding that no evidence has been adduced by the ....
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....an inserted entry and this register establishes that the assessment order was made on 27.12.2007. In the case of Elkom Enterprises Pvt. Ltd. (supra) Tribunal came to the conclusion that the assessment order was passed on 27.12.2007, much before the expiry of limitation period i.e. 31.12.2007, on the basis of documents and evidences. But in the present case before us, it is a fact that despite repeated opportunities to the revenue they could not prove by any documentary evidence that the assessment was framed on 31.12.2008 i.e. the date of assessment order. It is a fact that the assessment order and demand notice was handed over to Postal Authorities on 12.02.2009 and the same was received by assessee on 16.02.2009. 11. From the facts discussed above as well the case laws, it is obvious that this Bench allowed repeated opportunities to the revenue for producing evidences so that the fact regarding date of framing of assessment order could be verified. However, the Department could not produce any evidence which prove that the assessment order was ready as on 31.12.2008. Thus, we have no option but to accept the contention of assessee that the assessment order was not passed on 31.1....