TaxTMI 
TaxTMI 
2024 (2) TMI 1046
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....ntained in sub-sections (1), (1A), (1B) and (2), in relation to the assessment year commencing on the 1st day of April, 1971, and any subsequent assessment year, an order of fresh assessment in pursuance of an order under section 250 or section 254 or section 263 or section 264, setting aside or cancelling an assessment, may be made at any time before the expiry of one year from the end of the financial year in which the order under section 250 is received by the Principal Chief Commissioner or section 254 is or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be the order under section 263 or section 264 is passed by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner: Provided that where the order under section 250 or section 254 is received by the Principal Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, on or after the 1st day of April, 1999 but before the 1st day of April, 2000, such an order of fresh ass....
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....quent decision in GE Energy Parts Inc. vs. Deputy CIT 2019 SCC OnLine Del 12407. The aforesaid submission, and which found favor with the ITAT, was based on the contention of the respondent that the order of the ITAT dated 20 February 2015 had been given effect to by the AO itself on 12 March 2015. In view of the aforesaid, it was contended that the period for drawl of a draft and a final assessment order would have to be computed from that date. It is this submission which has come to be accepted by the ITAT and has led to the filing of these appeals. The appeals propose the following question of law for our consideration: - "(i) Whether on the facts and circumstances of the case the Income Tax Appellate Tribunal has erred in holding that the draft assessment order and final assessment order passed by the Assessing Officer, are barred by limitation under section 153(2A) of the Income Tax Act, 1961?" 3. For the purposes of evaluating the correctness of the submissions which were addressed on behalf of the appellants, we propose to take note of the following salient facts as they appear in ITA 64/2024. On 03 April 2007, the assessee filed its Return of Income which th....
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....27.12.2016 and final assessment orders dated 30.10.2017 are, therefore, barred by limitation in light of the judicial decisions of the Hon'ble Jurisdictional High Court of Delhi (supra) and the Hon'ble High Court of Kerala (supra). Allowing the additional grounds raised by the assessee, we hold that draft assessment orders and final assessment orders are barred by limitation. 40. Since we have quashed the assessment order as null and void being barred by limitation, we do not find it necessary to dwell into the merits of the case." 7. It was the correctness of the aforesaid view which was questioned by Mr. Bhatia before us. Mr. Bhatia submitted that the ITAT has clearly erred in seeking to interpret the word "received" as occurring in Section 153(2A) as being equivalent to knowledge being derived of the order passed by the ITAT. It was his submission that the decision in Odeon Builders as well as GE Energy Parts were clearly distinguishable since in those cases certified copies had in fact been obtained and it was the aforesaid facet which led to the Court answering the questions that stood posited against the Revenue. According to learned counsel, the word "received" c....
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....yalty chargeable to tax in India. The assessing Officer held that the royalty received by the company is taxable in India as the end users are situated in India. Accordingly, the income was assessed at Rs. 125,52,57,206/- taxable at 15% being royalty and FTS. The assessee further preferred an appeal before Hon'ble ITAT, Delhi Bench, New Delhi. Hon'ble ITAT has restored back the matter to the Assessing Officer vide the consolidated order dated 20.02.2015. While restoring back, hon'ble ITAT has allowed a partial relief of Rs. 2,72,68,740/- on this issue Royalty from Brew Operator Agreement, which has been held to be not taxable in India. In view of the Hon'ble ITAT combined order dated 20.02.2015 in ITA No. 3701 & 3702/Del/2009, 5343/Del/2010 and 4608/Del/Del/11 which is a combined order for A.Y. 2005-06 to 2008-09. The income of the assessee is recalculated u/s 254 as under:- Income assessed u/s 143(3)/250 Rs. 125,52,57,206/- Less : Relief granted by the Hon'ble ITAT (Royalty from Brew Operator Agreement) Rs 2,72,68,740/- The other additions made in the assessment order under head Royalty on Handsets of Rs.78,53,40,000....
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....ived" as occurring in Section 260A. The Full Bench thereafter proceeded to reject the contention of the Department that the receipt of the order of the ITAT must be considered as being service upon the jurisdictional Commissioner holding that the acceptance of such a view would amount to rewriting 153(2A) and construing that provision contemplating receipt of the order by the "concerned" Commissioner or Principal Commissioner of Income Tax. 14. It thereafter proceeded to render the following significant observations: - "38. In other words, there can be no doubt that in all cases where the decision of the Income-tax Appellate Tribunal has gone against the Revenue, it is the Revenue as a whole which is the "aggrieved party". An individual Commissioner of Income-tax or Principal Commissioner of Income-tax can prefer the appeal on behalf of the Revenue as an aggrieved party. If the legislative intent was to confer the power to file an appeal only by the "concerned" Commissioner of Income-tax or Principal Commissioner of Income-tax or Chief Commissioner of Income-tax, then words to that effect ought to have been used. The use of the prefix "the" preceding the words Commissio....
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....use the "concerned" officer has not yet received the order." 15. As is evident from the aforesaid extracts, the Full Bench had unequivocally found that while examining the issue of limitation, one would have to pose the question of when the Department became aware of the order and not when the concerned Commissioner or Principal Commissioner may have been served or had derived knowledge. It proceeded further to observe that once a responsible officer of the Department becomes aware of the order, the period of limitation would commence form that point in time. 16. In GE Energy Parts, the Court was concerned with the bar of limitation for imposing penalties as raised by virtue of Section 275 of the Act. It is relevant to note that Section 275 prescribed the outer limit which would operate for imposition of penalties from the end of the stipulated period when an order of the Commissioner of Appeals or the ITAT is "received". On facts, the Court in GE Energy Parts found that undisputedly although the Commissioner had received a copy of the order of the ITAT only on 01 November 2017 and had contended on that basis that the period of limitation should be computed from that date, th....
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.... meant that the Income-tax Appellate Tribunal order was already available on that date. Further in the replies received by the petitioner in response to the application filed by it under the Right To Information, the CPIO has clearly stated that "the said order of hon'ble Income-tax Appellate Tribunal was dispatched by the registry of the Income-tax Appellate Tribunal on April 11, 2017 and received by the office of the Commissioner of Income-tax (Judicial) on April 17, 2017". The proof of service has also been enclosed to that letter. These facts have not been denied by the respondents. This court is, therefore, unable to accept the plea of the Income-tax Officer, Judicial-II that copy of the order of the Income-tax Appellate Tribunal was received only on October 31, 2017 and could, therefore, be sent to the Commissioner of Income-tax (International Taxation) only on November 1, 2017. 33. If an officer of the Department is allowed to choose a date on which a copy of the order which has to be given effect to or acted upon is sent to the officer concerned, it will defeat the very purpose for which the Legislature has stipulated definite time limits in various provisions ....