TaxTMI 
TaxTMI 
2019 (2) TMI 789
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.... the appeals:- "1. That the impugned order as passed by the Ld. AO u/s. 153A/143(3) of the I.T. Act on 28.3.2013 ought to have been cancelled / annulled by the Ld. CIT(A) inter alia because: (a) The impugned assessment order as passed is barred by limitation as the impugned order passed u/s. 143(3) has been antedated as if it was passed on 28.3.2013 as against the actual fact that it was not passed on 28.3.2013. (b) Principles of natural justice had also been violated because no opportunity of being heard was given to the appellant before passing the impugned assessment order. 2. The brief facts with regard to the issue in hand are that assessee is in an individual and is regularly filing its return of income with Jurisdictional Assessing Officer at Ghaziabad. Assessee received a notice under section 153A of the Income Tax Act, 1961 (in short "Act") dated 18.09.2012. On 17.01.2013 assessee filed the return in compliance of notice under section 153A of the Act. Assessee filed the detailed reply on 29.01.2013. No assessment order is received by assessee before 31.3.2013. On 17.4.2013 assessee filed an application stating that no assessment order is serve....
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....of assessee order booked for posting on 1.4.2013 at 19:20 hours in evening and also enclosed the copy of ITAT, Cuttack Bench decision dated 05.7.2018 in the case of Geetarani Panda vs. ACIT in IT(SS) No. 01/CTK/2017 (AY 2007-08) and in the case of Manjusmita Dash vs. ACIT in IT(SS) A No. 02/CTK/2017 (AY 2007- 08) by which the issue in dispute is squarely covered. In view of above, he requested to quash the assessment order on the legal ground itself and cancel the orders of the authorities below. 4. On the contrary, Ld. CIT(DR) relied upon the orders of the authorities below and reiterated the contention made in her written submissions:- a. In ground no. 1 (a) of the Appeal of A.Y. 2010-11 & 2011-12 the appellant has claimed that the assessment order is barred by limitation and required to be set aside on this ground. The appellant has mentioned that the order of assessment, though dated 28.03.2013, but has been made only on 31.03.2013. b. This issue has also been agitated before CIT(A) in appeal no. 296/2013-14/GZB for A.Y. 2010-11 and in appeal no. 297/2013-14/GZB for A.Y. 2011-12 and Ld. CIT(A) had adjudicated this issue in para 5.3 of the order and rejected....
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....ments and reassessments. 153.(1) No order of assessment shall be made under section 143 or section 144 at any time after the expiry of- (a) two years from the end of the assessment year in which the income was first assessable; or (b) one year from the end of the financial year in which a return or a revised return relating to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, is filed under sub-section (4) or sub-section (5) of section 139, whichever is later. Provided that in case the assessment year in which the income was first assessable is the assessment year commencing on or after the 1st day of April, 2004 but before the 1st day of April, 2010, the provisions of clause (a) shall have effect as if for the words "two years", the words "twenty-one months" had been substituted. Provided further that in case the assessment year in which the income was first assessable is the assessment year commencing &[on or after the 1st day of April, 2005 but before the 1st day of April, 2009 and during the course of the proceeding for the assessment of total income, a reference under sub-section (1) of se....
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....e the assessment and if the assessment order reaches the appellant within the reasonable time, it cannot be said that it is barred by limitation. Apparently, the assessment order was passed on 28.03.2013, collected from Assessing Officer on 31.03.2013 by the speed post centre people. In this light, there is no merit and substance in ground no. 1 of the appeal and the claim made by the appellant deserves to be rejected. 5. We have heard both the parties and perused the records especially the impugned order passed by the Ld. CIT(A), Paper Books and the case laws referred by both the parties. We find that it is the main contention of the assessee that assessment order is served on assessee on 18.4.2013 and is barred by limitation and therefore, assessment order deserves to be declared null and void. Though the assessment order is dated 28.3.2013, but it is served on assessee on 18.4.2013 i.e. after the expiry of the period on which assessment order was liable to be time barred as per section 153 of the Income Tax Act, 1961 and it is barred by limitation. However, the Ld. CIT(DR) has the contention that the intention of the legislature is to complete the assessment and if the assess....
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.... to the Assessing Officer for his comments. The assertion that speed post was booked on 02.04.2013 is not commented upon by Assessing Officer in his report and it can be presumed that he does not rebut this claim of assessee appellant. The assessing officer has however submitted that order was passed on 31.03.2013 with approval of Addl. CIT, Central Range, Meerut dated 28.03.2013 and was dispatched on 31.03.2013 and given for speed post on 31.3.2013. The scanned copy of the documents produced in report by the Assessing Officer is reproduced below:-..... .....As regards the issue whether assessment was time barred not, as stated above the only requirement of law is to make assessment by given date. The assessee has placed reliance on case of Shanti Lai Godhawat. The case law cited by the assessee i.e. the case of Shantial Godawat decided by Hon'ble ITAT Jodhpur has been considered by the hon'ble ITAT Mumbai in case of Jai Jinendra Cold Storage Pvt Ltd. vs ACIT in ITA No. 2584 and 2585 and after discussing facts of that case, which are similar to that of present case, it has held that Merely because according to the assessee that was dispatched on 1.1.2010 does not mean that....
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.... find that AO in his remand report has submitted that as per record, the assessment was completed on 28.3.2013 which is within limitation and the order was dispatched on 31.3.2013. Hence, the assessment was within limitation as per provisions of section 153(1) of I.T. Act and same view was adopted by the Ld. CIT(A) and later reiterated by the Ld. CIT(DR) before us. But, after perusing the evidence for postal booking and dispatch register which are placed on record at page no. 11-16 of Paper Book in ITA No. 3557/Del/2015 (AY 2011-12), we find considerable cogency in the contention of the Ld. counsel for the assessee that the assessment order as passed by limitation as the same has been antedated as it was passed on 28.3.2013 as against the actual fact it was not passed on 28.03.2013. Though the assessment order is dated 28.3.2013, but it served on the assessee after the expiry of the period on which assessment order was liable to be time barred as per section 153 of the Income Tax Act, 1961 and it is barred by limitation. We further note that assessee has submitted a Affidavit dated 26.11.2018 which is placed in Paper Book which states that assessment order was not dispatched on 28.....
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....as 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 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 Le....
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....y, 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 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 asse....
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....o 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 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." ....
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....ven 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 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 inspe....
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....t 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 cancelled and Ground No.2 and Ground No.4 of appeal in case of both the assessees are allowed." 13. We considering the facts ....