TaxTMI 
TaxTMI 
2022 (11) TMI 1386
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....ission that the assessment order is purported to have been passed on 30.12.2016. It was the submission that the said assessment order was dispatched only on 7.1.2019. For this proposition, he drew our attention to pages 8 to 10 of PB, which was the consignment tracking record of the speed post in respect of the assessment order. It was the submission that the order sheet entries in respect of the assessment also do not contain any entry in respect of the sending of the assessment order for the approval of the JCIT or the receipt thereof or passing of the assessment order. Ld AR has placed copies of the order sheet entries for each of the assessment year. It was the further submission that the demand of collection registers no. has not been entered on the assessment order or demand notice u/s.156 of the Act provided to the assessee. It was the submission that the issue was squarely covered by the decision of the Co-ordinate Bench of this Tribunal in the case of M/s. Nidan in IT(ss) A Nos.32 to 37/CTK/2018 dated 16.5.2018, wherein, in para 17, the Coordinate Bench has held as follows: "17. It is not in dispute that the orders of assessment under consideration were dispatched only o....
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.... issued within the prescribed period, order passed by AO is barred by limitation. The said judgment squarely applies to the facts of the present case." 9. On the other hand, the facts in the decision of the Calcutta High Court in M/s. Binani Industries Ltd. (supra) did not involve despatch of the assessment order by post at all. The judgment reveals that the assessment order was passed on 31st March, 2005, the last date by which had to be made and the Authorised Representative (AR) of the Assessee visited the office of the Department and collected it on 13th April, 2005. When confronted the CIT produced records which 'did not contain the dispatch register'. The Calcutta High Court then concluded that from the oral evidence of the CIT that the Department had "not made any attempt to dispatch the order for service on the assessee." It further observed "there is no indication that the Assessing Officer revisited the order after 31.3.2005. The probability of the order being made and ready to be collected by the representative of the assessee as on 1.4.2005 cannot also be ruled out." 10. The above facts in M/s. Binani Industries Ltd. (supra) are therefore clearly distingui....
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....in the Demand & Collection Register. There is no evidence that it was antedated. There is no evidence to the effect that such order was not passed on 30.12.2016. There is no evidence that it has been tempered with by the A.O. ii.)It has been dispatched on 07.01.2017 and received by the assessee on 09.01.2017. Kindly refer to para-5.1 on page-6 of the appellate order dated 21.08.2019. There is a categorical finding by the CIT(A) that he has seen the assessment records and the AO had sought the approval of JCIT u/s. 15 3D vide letter dated 29.12.2016 which was approved by the Supervisory Officer vide letter dated 30.12.2016. These assessment order have been entered on page-73 of Demand & Collection Register (Part-XII/134/2016-17) on 30.12.2016. When the A.O. sends the draft order to the JC1T for approval u/s.l53D, the order is beyond his control since after approval, the same order has to be issued to the assessee. Hence the allegation of being ante-dated shall not apply to such assessment orders. The Demand & Collection Register and approval folder of JOT, Central Range, Bhubaneswar are produced in original for kind perusal of Hon'ble Members of IT AT. iii.)The undersigned....
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....sessment was not an administrative order but a quasi-judicial order. Section 17A(l)(a) of the Income Tax Act, 1957, requires that an order of assessment should be made within the prescribed period. It does not further require that it should be communicated within the prescribed period. An order must be deemed to have been made on the date on which it is purported to have been made. Therefore, an assessment order purporting to have been made on 31st March, 1979, but served on the assessee on 20th April, 1979, is deemed to have been passed in the eye of law on 31st March, 1979 and not barred by limitation under section 17A(l)(a). viii.)Similarly in the case of India Ferro Alloy Industry Pvt. Limited Vs. Commissioner of Income Tax (202 ITR 671), the Hon'ble Calcutta High Court held that in its opinion, what was required for completion of the assessment was the determination of the tax liability and issue of demand notice but certainly not the service of the same on the assessee. In view of above cited decisions and facts of the present case, it is clear that the AO had passed the assessment order within limitation period i.e. 31.03.2015. ix.)The Hon'ble Cuttack ITAT in t....
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....nd as no evidence has been produced to show or to prove the allegation that the order was back dated, the technical ground raised by the assessee stands rejected". In the case of Sophia Study Circle, the Hon'ble Cuttack ITAT differed from the earlier decision in the case of Durga Condev Pvt. Ltd. in ITA NO.162/CTK/2012 dated 18.05.2012. Hence there is a judicial precedent which needs to be followed. x.)It may please be appreciated that in case of an assessee, facts and circumstances being same, the Tribunal is required to follow order passed by it. The Hon'ble Cochin Tribunal in the case of ACIT vs. Chandragiri Construction Co. (21 taxmann.com 167) (TM) observed in para-8 of the decision of Hon'ble Vice President (Third Member) as under: "The Tribunal is to follow the decision of another Bench where facts are the same. This is a treaty law. The only other alternative is to refer the matter to the larger bench if the Members of this Bench are not willing to follow the earlier order. In this case, there is no dispute that the facts and circumstances are the same as appearing in the assessment year 2002-03 except change in figures and it is also true that the very....
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.... order cannot be said to be beyond the period of limitation prescribed under section 263 (2) of the Act. Receipt of the order passed under section 263 by the assessee has no relevance for the purpose of counting the period of limitation provided under section 263 of the Income Tax Act. In the present case, the order was made/passed by the learned Commissioner on 26-3-2012 and according to the department it was dispatched on 28-3-2012. The relevant last date for the purpose of passing the order under section 263 considering the fact that the assessment was for the financial year 2008-09 would be 31-3-2012 and the order might have been received as per the case of the assessee-respondent herein on 29-11-2012. However as observed hereinabove, the date on which the order under section 263 has been received by the assessee is not relevant for the purpose of calculating/considering the period of limitation provided under section 263 (2) of the Act. Therefore the High Court as such has misconstrued and has misinterpreted the provision of sub-section (2) of section 263 of the Act. If the interpretation made by the High Court and the learned ITAT is accepted in that case it will be violating....
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.... independent enquiry or the result of any such enquiry, then it would have been incumbent upon the appellate authority to inform the assessee about the result of such enquiry so as to afford an opportunity to the assessee to make his submission with regard thereto. But the appellate authority had no such obligation to disclose the assessment records to the assessee before taking them into account at the time of hearing of the appeal. An appellate court cannot be prevented from perusing the lower court recprds. It is a strange submission to make that the lower court records could not have been perused without giving an opportunity to the assessee. The submission that the learned Tribunal was justified in drawing an adverse inference is altogether without any merit. The learned Tribunal was hearing an appeal. The learned Tribunal was not taking evidence of the matter as a Court at the first instance would do. The question for consideration was whether the order dated 31st December, 2008 could be said to have been passed on 31st December, 2008 when the demand notice together with a copy of the order was served after 47 days. A period of 47 days time is not time long enough which can e....
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....h, 2007 and consequently the assessment order passed on 27th April, 2007 is barred by limitation on the facts and circumstance of the case ? 2.Whether the Tribunal is correct in law in holding that the Assessing Officer does not have the power to unilaterally withdraw the direction for audit under section 142(2A) of the Income Tax Act as the original direction was made with the approval of the commissioner of Income Tax on the facts and circumstance of the case ? 3.Whether the Tribunal was correct in law in holding that the assessment order passed on 27th April, 2007 is barred by limitation as successive direction under section 142(2A) is not permissible and the second direction given to obtain the audit report before 28th February, 2007 is to elongate the assessment proceedings and also contrary to section 142(2C) of the Act on the facts and circumstance of the case ? 4.Whether the assessment order is barred by limitation as it was made beyond the period of limitation on the fact and circumstances of the case ?" On appeal, the Hon'ble Karnataka High Court held that the period prescribed under law being sixty days, the assessment orders were required to be issued on....
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....n the case of Shantilal Godawat & Others vs. ACIT (2009) 30 DTR 413, wherein it was held that "the assessment order passed on 28.12.2007 but served on 02.01.2008, beyond the period of limitation of 31.12.2007 was barred by limitation and thus non-est in law". On appeal, the Hon'ble Mumbai IT AT held in paras-7 to 8 as under: "7. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that there is no dispute that the impugned assessment order was passed on 30.12.2009. It is also not in dispute that the same was received by the assessee within three days i.e. on 2.1.2010. Under the provisions of section 153 of the Act, it has been mentioned that the order of assessment has to be made within twenty one months from the end of the relevant assessment year i.e. in the case of the assessee on or before 31.12.2009. It is not necessary that the order of the assessment should be communicated to the assessee or that notice of demand in pursuance thereof should be served on him within the above period. The assessee placed no material on record to show that the order of assessment was not passed on 30.12.2009. Merely bec....
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.... post by the office staff on 04.04.2015. According to the arguments of the assessee the order should be served up to the end of the financial year i.e. 31.03.2015 but the order has been received by the assessee on 04.04.2015, which is illegal. In this regard, we refer to the provisions of Section 263(2) of the Act, which reads as under "263(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed." From the record, it is clear that the assessment order u/s.l43(3) of the Act was passed on 22.03.2013 and the Pr. CIT has passed his order on 30.03.2015, therefore, the order is within two years from the relevant date. From the reading of the provisions of Section 263(2) of the Act, it is clear that there is no mention about the "service" of the order, however, it is only mentioned that the order shall be "made". With regard to "service" it has clearly been defined in the section 143(2) of the Income Tax Act but in section 263 of the Act nowhere about service of order has been mentioned. Therefore, this argument of the assessee with regard to ground No.l, is dismissed". xvi.) In ....