TaxTMI 
TaxTMI 
2023 (2) TMI 636
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.... 3. Grounds on assessment order being barred by Limitation. (i) The learned Commissioner of Income tax (Appeals) failed to appreciate that the assessment order passed by the learned assessing officer under section 153A r.w.s. 143(3) of the Act is barred by limitation on the facts and circumstances of the case. (ii) The learned Commissioner of Income tax (Appeals) erred in not calling for the dispatch register for verifying actual date as to when the assessment order left the control of the assessing officer and further failed to appreciate that the assessment order dated 27.03.2015 passed by the learned assessing officer u/s. 153A r.w.s. 143(3) of the Act had left the control of the learned assessing officer only after 31.03.2015 i.e., on 07.04.2015 and consequently the assessment order passed is barred by limitation and is liable to be annulled on the facts and circumstances of the case. (iii) The learned Commissioner of Income tax(Appeals) failed to provide the copy of the dispatch register though specifically requested by the Appellant for rebuttal by the Appellant and consequently, the Appellate order passed is in violation of principles of nat....
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....as been made in the assessment on the basis of material seized during the course of search in the case of the Appellant on the facts and circumstances of the case. (vi) The learned Commissioner of Income tax (Appeals) failed to appreciate that a valid search is a sine qua non for making a valid assessment under section 153A of the Act on the parity of ratio of the decision of the Hon'ble Apex Court in the case of Ajit Jain reported in 260 ITR 80 on the facts and circumstances of the case. (vii) Without prejudice, the learned Commissioner of Income tax (Appeals) failed to appreciate that the learned Commissioner of Income tax (Appeals) can look into the other aspects of validity of search other than referred to Explanation to section 132(1) of the Act on the facts and circumstances of the case. (viii) The learned Commissioner of Income tax (Appeals) erred in holding that the learned Commissioner of Income tax (Appeals) could not look into validity of search and consequently, gave a perverse finding on the facts and circumstances of the case. 5. Grounds of whether provision of section 153A or 153C of the Act is applicable. (i) The lear....
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....oner of Income tax (Appeals). '4. The learned Assessing Officer failed to appreciate that the search conducted in the case of the appellant is not a valid search and the conditions contemplated under section 132 of the Act have not been complied and more so when no addition was made in the case of the appellant based on the materials seized in the course of search of the appellant on the facts and circumstances of the case.' 9. The learned Commissioner of Income tax (Appeals) erred in not admitting the additional grounds of appeal filed by the Appellant before the learned Commissioner of Income tax (Appeals).'5. Without prejudice, the assessment cannot be made under section 153C of the Act in the case of appellant unless mandatory conditions are complied with including recording proper satisfaction by the Assessing Officer of the searched person and the learned Assessing Officer having jurisdiction on the appellant as required under the provisions of law on the facts and circumstances of the case'. 10. The learned Commissioner of Income tax (Appeals) failed to appreciate the statement of facts, written submissions, rejoinder and other material prod....
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....ispatch seal of postal authority being 07.04.2017, the assessment order is barred by limitation. In this context, the ld. AR relied on the judgment of the Hon'ble jurisdictional High Court in the case of M/s. Maharaja Shopping Complex vs. DCIT in ITA No. 832/2008 dated 14.10.2014 and the order of the Tribunal in the case of M/s. Globe Transport Corporation vs. ACIT in ITA No. 629-631/Bang/2014 (order dated 04.01.2019). 6. The ld. DR on the other hand submitted the order has been made within the date of limitation period and dispatched by the AO on 27.03.2015 i.e within the period of limitation. In this context, the ld. DR relied on judgment of the Hon'ble Apex Court in the case of CIT vs. Mohammed Meeran Shahul Hameed (judgment date 07.10.2021). 7. We have heard rival submissions and perused the material on record. Assessee's, primary contention is that the order of assessment passed by the AO u/s. 153A r.w.s. 143(3) of the I.T. Act dated 27.03.2015 is barred by limitation. The time limit for completing the assessment for the impugned AY 2011-12 is on or before 31.03.2015 as per the provisions of section 153 of the I.T. Act. The assessment order though dated 27.03....
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.... that the order passed is barred by limitation". 9. The Hon'ble Supreme Court in the case of B.J. Shelat vs. State of Gujarat reported in AIR 1978 SC 1109 had held for the proviso to become operative it is necessary Government should not only take a decision but communicate it to the Government Servant. It is not necessary that the communication should reach the Government Servant. It would be sufficient if such order is sent out and goes out of control of the appointing authority before the relevant date. Further, it was observed by the Hon'ble Court that once the same has been sent out to the concerned Government Servant, it must have been communicated no matter when he actually received it. 10. The Hon'ble Gujarat High Court in the case of CIT vs. Purshottamdas T Patel reported in 209 ITR 52 (Guj) had held the AO having failed to determine the tax payable on assessed income within the prescribed time u/s. 153 of the I.T. Act, (though the assessment order was passed within the time) the assessment has become time barred. 11. The Hon'ble Kerala High Court in the case of Commissioner of Agricultural Income tax vs. Kappumalai Estate reported in 234 ITR 187(K....
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....ier part of this order. 10. We have heard the rival submissions. As we have already observed, it is undisputed that the order of assessment was despatched by the AO only on 09.01.2012 and that the last date of limitation for passing the order of assessment, pursuant to the directions of the Tribunal in all the three assessment years was 31.12.2011. The question which arises for consideration is, whether the date of despatch has to be construed as the date of order of assessment and consequentially the orders of assessment have to be held as bad in law. 11. On the above question, the ld. counsel for the assessee has drawn our attention to the decision of the Hon'ble High Court of Karnataka in the case of Maharaja Shopping Complex v. DCIT, ITA No. 832/2008, judgment dated 14.10.2014. In the aforesaid case, the facts were identical as the facts in the present case. 12. In the aforesaid case, the time limit for passing the order of assessment was 31.03.2006, the order of assessment was dated 28.02.2006. The order of assessment was, however, served on the assessee only on 18.04.2006. The question before the Court was, whether the order of assessment was ba....
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....rt) extracted earlier." 13. The Hon'ble Kerala High Court thereafter held that the date of despatch of the order of assessment should be construed as the date of order of assessment and consequently quashed the orders of assessment as barred by limitation with the following observations:- "5. Learned counsel for the revenue is unable to point out from the records whether the assessment order was dispatched from the office before 31.03.2006. Therefore, it is clear when the same was received by the assessee on 18.04.2006, it might have been dispatched few days prior to that and subsequent to 31.03.2006. In that view of the matter, the law laid down as aforesaid squarely applies to the facts of this case and therefore, any just conclusion that could be reached is that the order passed is barred by law of limitation. In that view of the matter, the additional substantial question of law framed today is answered in favour of the assessee and against the revenue. Accordingly, the appeal is allowed. The impugned orders are set-aside." 14. In our view, the facts of the aforesaid case are squarely applicable to the facts of the present case. Following the afor....