AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 1798
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....missioner of Income Tax (Appeals-3) erred in law as well as in fact by confirming the addition of Rs. 1,16,667/- on account of investments in Margadarshi Chitfund which is based on surmises and contrary to the weight of evidence on record. 2. Because that the Ld. Commissioner of Income Tax (Appeals-3) erred in law as well as in fact by confirming the addition of Rs. 89,816/- on account of unexplained investment in house property ignoring the submissions made with regard cost of construction of the house property situated in a locality having population of less than 5.00 lakhs. 3. Because that the Ld. Commissioner of Income Tax (Appeals-3) erred in law as well as in fact by confirming the addition of Rs. 6,51,925/- on account of deposits in Bank account ignoring the cash flow filed explaining the source of the same. 4. Because that the Ld. Commissioner of Income Tax (Appeals-3) erred in law as well as in fact by confirming the addition of Rs. 24,000/- on account of investments in Sri Ram Chits (P) Ltd. which is based on surmises and contrary to the weight of evidence on record. 5. The appellant craves to add, amend and withdraw any grounds of appeal at the time of hearing. ....
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....ismissed the appeal. 8. Aggrieved with the order of CIT(A), the assessee filed appeal before the Tribunal. 9. Before us ld. AR submitted that the original assessment order dated 31.12.2007 has been served on the assessee on 16.02.2008 i.e. 46 days' from the date of period of limitation for which the assessment order is null & void in the eyes of law and also the reassessment order passed U/s 153A(b)/254 dated 30.03.2015 is barred by limitation as the same has been served on the Authorised Representative of the assessee on 06.04.2015 and service is not disputed by the Revenue. Further ld. AR supported his arguments relying on the coordinate bench decision of the Tribunal in the case of Geetarani Panda & Ors. Vs. ACIT, IT(SS)A Nos.01&02/CTK/2017, dated 05.07.2018, M/s Nidan Vs. ACIT, IT(SS)A Nos. 32 to 37/CTK/2018, order dated 16.05.2018 and the decision of Hon'ble Delhi High Court in the case of CIT Vs. Escorts Farms Pvt. Ltd. (1989) 180 ITR 280 (Del) and substantiated his stand that the department has erred in serving the reassessment order beyond the limitation period and prayed for allowing the additional ground of appeal. 10. Contra, ld. DR heavily objected to the submiss....
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.... justice by calling return of income u/s.!53A of the I.T.Act, 1961 and third ground is that AO has not given reasonable opportunity to the assessee to produce any evidence in support of return and has violated the principles of natural justice insofar as the issuance of notice u/s.l43(2) is concerned. We also find that Id CIT(A) has dismissed these grounds. We also find from the orders of the AO as well as Id CIT(A) that AO has not given reasonable opportunity of hearing before passing the orders to the assessee. Therefore, 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 su....
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....e order was dealt by this coordinate bench of the Tribunal in the case of Geetarani Panda & Ors. Vs. ACIT, IT(SS)A Nos.01&02/CTK/2017, dated 05.07.2018, wherein the Tribunal observed as under :- "19. We have heard the rival submissions, perused the orders of lower authorities and materials available on record. In the instant case, the assessee has raised two legal issues. Firstly, the order of assessment being issued after the statutorily permitted time is barred by limitation. Secondly, no requisite approval as envisaged under 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 a....
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....t the language used by the legislature in the above provision is in negative and the words used are "order of assessment" and not only "assessment". The word order denotes a command which is to be followed by somebody else. Unless the command is communicated to the person by whom it has to be followed, it does not become an "order". 12. In our considered view, simply determining the total income of an assessee and determining its tax liability on a piece of paper and signing the same may constitute an assessment but only on its communication to the 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 effect....
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....on 7.1.2017. Hence, in our considered opinion, the said orders of assessment were time barred and consequently, we set aside the same and allow this ground of appeal of the assessee for all the seven years under appeal." 22. In view of above, as in the instant case, the communication process of the assessment was not initiated admittedly within the prescribed period of limitation, hence it did not become an "order of assessment" within the period of limitation. We, therefore, have no hesitation in holding that the impugned order of assessment 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 statuto....
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....nt void. 25. In the instant case, we find that the Supervisory Authority has himself admitted that because of reasons stated by him, could not apply his mind and has accorded the approval mechanically to meet the requirements of law as the requirement was merely a formality. The said Supervisory Authority had a duty towards both the assessee as well as the Revenue which was failed to be performed in the instant case. 26. Further, we find that the approving authority has required the assessing authority to conduct further enquiry in respect of opening cash 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 ca....