TaxTMI 
TaxTMI 
2024 (4) TMI 714
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....rit, Order or Direction under Article 226/227 of the Constitution of India directing the Respondents to issue refund of Rs. 25,44,671/- along with interest thereby de-freeze the three bank accounts maintained with Indian Overseas Bank Limited bearing A/C No. (003502000022314), ICICI Bank Ltd. bearing A/C, No. (000705035988) & Punjab & Sind Bank bearing A/c No. (00131100015265) and two properties attached namely as Vishal Infrabuild Limited situated at CTS No. 5853, I Floor, Emer Corner, Maratha Colony, Congress Road, Belgaum, Karnataka-590006 & another property namely as DLF Limited, Flat No. 2701 , R Tower, Moti Nagar, New Delhi." 2. The facts of the present case exhibit that the petitioner had filed its Income Tax Return ["ITR"] for the Assessment Year ["AY"] 2008-09, declaring a total income of Rs.19,92,354/- which was processed by the respondents under Section 143(1) of the Income Tax Act, 1961 ["Act"]. The ITR of the petitioner was picked up for scrutiny and an assessment order under Section 143(3) of the Act was passed by the respondents on 31 December 2010, whereby, the total income of the petitioner was assessed to be Rs.100,42,66,390/- for the concerned AY. 3. Additiona....
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....rned AY through a proper channel. 9. Further, on 10 December 2021, the petitioner preferred an appeal against the order dated 3 November 2021, passed by respondent no. 3 under Section 7 of the RTI Act, 2005. The said appeal was decided by the first appellate authority under the RTI Act, 2005 on 13 January 2022 stating that the information provided to the petitioner is adequate. 10. Subsequently, upon receipt of the information dated 13 January 2022, an application was preferred by the petitioner on 1 February 2022 before the registry of the ITAT in order to seek information of service of order passed on 8 October 2018. On 10 March 2022, the petitioner was provided with the information by the registry of the ITAT that the order passed in the case of the petitioner was duly sent to the CIT (Judicial) on 24 October 2018 for further action. On 11 March 2022 and 30 March 2022, the petitioner made subsequent representations to the respondents to rectify the error with respect to the reflection of demand on the ITBA portal and issue refund, but to no avail. 11. The petitioner, therefore, filed the instant writ petition to ventilate its grievance against the inaction of the respondents.....
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....tter dated 16 July 2021 written to the Registrar of the ITAT, annexed as Annexure-R2, learned counsel submitted that upon receipt of the application from the petitioner for giving the appeal effect, the respondents had promptly written to various concerned authorities for providing the order in question. He, however, submitted that no reply was received from the concerned authorities. 17. He further contended that as per Section 153(3) of the Act, the limitation period of nine months or twelve months, as the case may be, would start at the point when the order from the ITAT is received by the Principal Commissioner or the Commissioner. He, therefore, contended that since in the instant case, the order was never received by the CIT (Judicial) or any other Principal Commissioner or Commissioner, the limitation period to pass assessment order in terms of the remand could not be said to have been expired. 18. Learned counsel has relied upon the decision of a Full Bench of this Court in the case of CIT v. Odeon Builders P. Ltd. (Delhi) [FB] [2017 SCC OnLine Del 7622] to submit that the limitation period would begin only when a certified copy of the order of the ITAT is received by any....
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.... of April, 2019, the provisions of this sub-section shall have effect, as if for the words "nine months", the words "twelve months" had been substituted.]" 22. The respondents have heavily stressed upon the usage of the word "received" in Section 153(3) of the Act in order to strike a distinction between the "receipt" of the order and "knowledge" of the order by the concerned authorities. According to the respondents, a plain and literal interpretation of the said provision would yield that the latter would not constitute a valid interpretation and the same has to be strictly confined to the "receiving" of the certified copy of the order by the concerned authorities. 23. Additionally, much reliance has been placed by the respondents on the dictum laid down by the Full Bench of this Court in the case of Odeon Buildwell (supra), which according to them, is a determinative authority on the aspect of limitation for passing a fresh assessment order and which shall be triggered only when the certified copy of the order is received by the Commissioner including the CIT (Judicial). Undoubtedly, though the decision in Odeon Buildwell (supra) revolves around the interpretation of Section ....
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..... Of course, the time taken to obtain a copy of the order by such Departmental representative or Commissioner of Income-tax (Judicial) would be excluded. However, the period of limitation will not cease to run only because the "concerned" officer has not yet received the order. *** 43. Viewed differently, the contextual interpretation of the expression "receive" would be when the parties notified of the pronouncement are represented at that time in the open court. When pronounced, both parties are said to receive it. The agency which they choose for transmission to the official or executive component to authorise an appeal is not the concern of the judicial system." [Emphasis supplied] 25. Evidently, from the extract of the relevant portion of the judgment in Odeon Buildwell (supra) in the preceding paragraph, it is seen that the contextual interpretation of the phrase "received" postulates the time when are the parties notified about the pronouncement and are represented at that instant in the open court. It was held that the solitary reason of non-receiving of the order by the concerned authority cannot consequently make the period of limitation cease to run. The Court....
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.... behind the enactment of Section 254(3) of the Act does not prescribe shifting of the onus of proving the receipt of the order under the said provision on the assessee. It was further noted that the expression "is received" used in Section 153(3) of the Act cannot mean to extend the limitation till perpetuity. The relevant paragraph of the said decision is reproduced as under:- "26. We are unable to agree with the respondent's counsel's contention that they have not received the order dated February 18, 2010. Section 254(3) itself provides for the Income-tax Appellate Tribunal to send a copy of the order to both the assessee and to the Commissioner; therefore, the onus would lie on the respondent to prove that they had not received the said order. If we had to accept the contention of the respondent it would have led to extending the time for compliance with the order dated February 18, 2010 for almost 12 years at least in this case. Further, it would lead to shifting the onus on the assessee to oversee that the Principal Commissioner or Commissioner, as the case may be, receives the copy of the order. We do not agree as it does not appear to be the intention of the Legis....
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....ition as Annexure P-13, was responded by the Assistant Registrar, ITAT, which noted that the copy of the said order dated 8 October 2018 was forwarded to the CIT (Judicial) on 24 October 2018. 33. It is also manifested from the penalty appeal order dated 2 March 2020 that the Senior Departmental Representative duly participated in the proceedings, wherein, the appeal was disposed of while placing reliance on the order of the ITAT dated 8 October 2018. Also, the representations made by the petitioner to various officers of the Department would show that the Department was apprised of the ITAT order in question. 34. The facts, thus, show that the ITAT sent the order to the Department on 24 October 2018, however, the Department denies having received the same. In any case, for deciding controversy in the instant case, it is sufficient to take note of the ITAT's stand of sending a copy the order to the Department. Moreover, the petitioner, as early as on 30 July 2020 itself, made the first communication to the Department to give appeal effect. The record would show that the subsequent representation sent by the petitioner on 9 July 2021 to the Department contains all the requisite in....