TaxTMI 
TaxTMI 
2022 (7) TMI 123
X X X X Extracts X X X X
X X X X Extracts X X X X
....dispatch by speed post on 07.04.2017 hence the revision order dated 31.03.2017 can't be said to have been passed on 31.03.2017 and accordingly is barred by limitation. 2. Considering the fact that the issue for which revision proceeding has been initiated has already been decided by the ld. CIT(A) - II Jabalpur vide his order dated 29.08.2016, hence the ld Pr. CIT - II Jabalpur was not justified in initiation of revision proceeding as well as in passing the revision order dated 31.03.2017. 3. Considering the fact that the assessment order dated 30.03.2015 is not erroneous so far as prejudicial to the interest of revenue hence the ld Pr. CITII was not justified in initiating revision proceeding by issuing show cause notice on 27.03.2017. 4. Considering the fact that the assessment order dated 30.03.2015 was not in accordance with provision of law hence the ld Pr. CIT-II was not justified in initiating revision proceeding. 5. The initiation of revision proceeding is bad in law for other reasons also. 6. Considering the fact that the assessment order dated 30.03.2015 is not erroneous so far as prejudicial to the interest of revenue hence the revision order dated 31.03.20....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... it called the cardinal principle of interpretation of statutes, whereby, the provision of the statute/Act is to be read as it is, and nothing is to be added or taken away from the provision of the statute (page 295). Shri Ghai would respond on the next date by stating that in the facts of the case, the orders dated 26/03/2012 were dispatched on 28/03/2012, i.e., well within the limitation period of up to 31/03/2012. The decision by the Apex Court is to be understood in that context and in that factual background. 4. We have heard the parties, and perused the material on record. There is no doubt, and there could be no quarrel about the law in the matter. That is, that it is only on its release, i.e., when it goes out of the control of the person/authority making the order, that it can be in law regarded as made or passed or issued, and for which, apart from the decisions relied upon before us, we may cite another (Upadhyaya v. Shanabhai P. Patel [1987] 166 ITR 163 (SC)). The issue, however, is the date on which the impugned order/s in the instant case/s stands issued, a matter of fact. Toward this, while the assessee relies on the date of dispatch, the Revenue does on the date ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....med to be dispatched on 28/03/2012, was claimed to be received on 29/11/2012, i.e., over 08 months later. It was in this context that the Apex Court clarified therein that neither date of receipt nor dispatch was relevant. It is the ratio of the decision, the legal proposition advanced, upon which, applying the same, decision in the peculiar facts and circumstances of a case is made, that is binding, and which in the cited case itself relates to the settled principle of interpretation of statutes (refer, inter alia, CIT v. Calcutta Knitwears [2014] 362 ITR 673 (SC)). The reliance on Mohammed Meeran Shahul Hameed (supra), wherein the Apex Court invokes the same principle of law, was made only for the reason that the same is in respect of the same question of law that arises in the instant case, i.e., the date of issue or making of an order, in view and context of the time limitation attending the same, as well as that an issue or passing an order necessarily implies the same being removed from the control of the person passing the same. The said decision thus clarifies that the word "issue" cannot be understood or extended to the incident of either receipt (by the person to whom it ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he matter, we do not think that it could be said that the date of issue of the impugned order/s is not the date on which the same is apparently signed, i.e., 31/3/2017. The assessee"s challenge, therefore, fails. 5. Vide Gd. 2 the assessee contests invalidity of the impugned orders on the basis of doctrine of merger inasmuch as the assessment sought to be revised has been subject to appellate jurisdiction in all cases, and which stands passed on 29/8/2016, i.e., prior to the issue of notice u/s. 263(1). The argument, where applicable, is unexceptional. However, we do not see any merit therein. The issue before the first appellate authority, even as observed in the impugned order/s, is qua the computation of capital gains, as indeed the hand in which it is to be assessed. We have for the purpose perused the appellate orders, forming part of the paper-book in all cases, save Anuradha Upadhyay, so that the argument is not applicable in her case. The revision, in all cases, on the other hand, is on the basis that the Assessing Officer (AO) has failed to, in view of the frequent transactions of purchase and sale of land during the year, as well as in the immediately preceding and succe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....utorily deems an order made without inquiry which should have been made as liable for revision on that account. That is treats the order per se erroneous and prejudicial to the interests of the Revenue for that reason, as explained decades ago in Gee Vee Enterprises v. CIT (Addl.) [1975] 99 ITR 375 (Del). The plea is without merit. 7. The next issue, raised per Gd. 4, is that the impugned order/s is bad in law as the orders sought to be revised stands passed without the issue of notice u/s. 143(2); and for which Shri Ghai would take us through the same, stating that there is no mention therein of the issue of notice u/s. 143(2). The assessments being, thus, bad in law, could not be revised. We are, again, unable to persuade ourselves to agree with him. Yes, an assessment u/s. 143(3) would normally arise only on the service of notice u/s. 143(2) in the matter inasmuch as the same, as explained in Asst. CIT v. Hotel Blue Moon [2010] 321 ITR 362 (SC), assumes the nature of a jurisdictional notice. The decision of this aspect, i.e., if it, in the given facts and circumstances, represents a jurisdictional fact, would therefore need to be ascertained; there being "contrary" decisions as....