TaxTMI 
TaxTMI 
2025 (3) TMI 727
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....ential action, which has been taken under the said order/notices. 2. Learned senior counsel for the petitioner submits that the impugned assessment order is liable to be set aside on various grounds. He has invited attention to the provisions of Sections 143(3), 144A, 151 and 153D of the Act, to submit that the Assessing Officer in the case of the present petitioner has not acted in accordance with the provisions of the Act. It is his submission that the Assessing Officer who in his quasi judicial capacity has to make the assessment on his independent application of mind and there is no requirement in law of obtaining approval from his superior officers before finalizing an order of assessment. It is stated that while there exist provisions under the Act, wherein approval/recommendation of superior authority has been stated to be prescribed like the provisions under Section 144A, Section 151 and 153D; but there is no such similar provision under Section 143(3) of the Act. 3. It is his further submission that even such approval/ recommendation under the aforesaid provisions are justiciable and can be challenged before the Court on the ground of; approval/recommendation being n....
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....he last date to make the impugned assessment order in normal course would be on or before 31.03.2024 and no order of assessment could have been passed thereafter. In support thereof, he has invited attention to Annexure P/20 and P/21, which are the screen shot of e-filing portal as on 01.04.2024, reflecting the proceedings open while e- filing portal screen shot of 04.04.2024, reflects of the passing of the assessment order. No real time alert was received by the petitioner on or before 01.04.2024. Further, submitted that no order was sent via email to the petitioner. He refers to Rule 127 of the Income Tax Rules, CBDT notification 02/2016 and the intimation of the email address provided to the authorities in terms of Rule 127(2)(b)(4). Document Annexure R/1, has also been referred wherein the delivery status reflects 'sending failed', email ID 'not specified', particulars of documents 'not specified' and assessment by tax payer on 04.04.2024. 7. The document Annexure P/22, has been referred to reflect that the tax or return confirmation in email also shows there being no orders sent prior to 04.04.2024. It is also submitted that there has been no order sent by physical post and....
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....223 (Del), Ghanshyam K. Khabrani vs. ACIT [2012] 346 ITR 443 (Bom), CCE vs. Ratan Melting & Wire Industries [2008] 13 SCC 1 (SC) [CB], S.B. Adityan vs. Income Tax Officer [1964] 51 ITR 453 (Mad), LML Ltd. vs. ACIT [1994] 205 ITR 585 (Mad), CIT vs. Barkelite Hylam Ltd. [1999] 237 ITR 392 (AP), Gujarat Gas Co. Ltd. vs. Jt. CIT [2000] 245 ITR 84 (Guj), CCE vs. M.M. Rubber and Company AIR 1991 SC 2141, Government Wood Works vs. State of Kerala [1988] 69 STC 62 (Ker), CIT vs. Rai Bahadur Kishore Chand and Sons [2010] 1 taxmann.com 165 (P&H), Munjal BCU Centre of Innovation and Entrepreneurship vs. CIT 2024: PHHC: 030865-DB and Suman Jeet Agarwal vs. ITO [2022] 449 ITR 517 (Del). 11. Learned counsel appearing for the respondent supports the order passed by the Assessing Officer. He further submits that the power is available to the CBDT to issue instructions to subordinate authorities and the circular has been issued by the CBDT on 15.07.2022, which requires respondent No.1/Assessing Officer to obtain approval from respondent No.2 prior to passing of the assessment order. The said circular issued by the CBDT is valid and in accordance with the provisions of Section 119(2)(A) of the Ac....
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....cally filled on it. The fact is evident from the sheet itself, thus, the Assessing Officer has no role in it. The relevant sheet generated through ITBA contains DIN No.ITBA/COM/S/91/2023-24/1063787982(1) and ITBA/COM/S/91//2023-24/1063787900(1) and, therefore, it cannot be said that the orders were not passed on 31.03.2024. 14. It is his assertion that the limitation as on 31.03.2024 is for making of an order and not for the communication of the order, in terms of the limitation prescribed under Section 153 of the Act. Learned counsel submits that the issue is no more res-integra in view of the judgment passed by the Hon'ble Supreme Court in the case of 2022 (1) SCC 112, The Commissioner of Income Tax, Chenni vs. Mohammed Meeran Shahul Hameed, wherein, it has been held that the date of limitation has to be seen on the date when the order has been made not the date when it has been received or communicated. Learned counsel also relied on the judgment passed by the Jharkhand High Court at Ranchi in Prakash Lal Khandelwal vs. The Commissioner of Income Tax, Ranchi and others, WP(T) No.1901 of 2022, decided on 21.02.2023, wherein the said judgment was followed. 15. As regards not....
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....e Joint Commissioner (Appeals) or] the [Commissioner (appeal] in the exercise of his appellate functions. (2) Without prejudice to the generality of the foregoing power:- (a) the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue, issue, from time to time (whether by way of relaxation of any of the provisions of sections 3[115P, 115S, 115WD, 115WE, 115WF, 115WG, 115WH, 115WJ, 115WK,] 4[139,] 143, 144, 147, 148, 154, 1555[, 158BFA], 6[sub-section (1A) of section 201, sections 210,211, 234A, 234B, 234C 7[, 234E]], 8[270A,] 271 9[, 271C, 271CA] and 273 or otherwise), general or special orders in respect of 10[any class of incomes or fringe benefits] or class of cases, setting forth directions or instructions (not being prejudicial to assessees) as to the guidelines, principles or procedures to be followed by other income- tax authorities in the work relating to assessment or collection of revenue or the initiation of proceedings for the imposition of penalties and any such order may, if the Board is of opinion that it is necessary in the public interest ....
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....f assessment year in which the income was first assessable. Thus, the period would end on 31.03.2024. 20. As regards Section 119 of the Act as noticed above, we find that while Section 119(1) of the Act, restrains the Board from issuing any instructions to subordinate authorities, which may lay down instructions of such a nature requiring the Income Tax Authorities to make particular assessment in a particular manner or to interfere with the discretion of the Joint Commissioner and Commissioner (Appeals) while exercising their appellate function. However, the Board would be within its powers to instruct and lay down guidelines for efficient management of assessment work and collection of revenue or issue guidelines/principles/procedure which are to be followed by Income Tax Authorities for work relating to assessment. The Circular dated 15.07.2022, issued by the CBDT relied upon by the respondents directs the Assessing Officer to seek approval of the assessment made by him under Section 143 or 144 of the Act from the Joint Commissioner. The Circular dated 15.07.2022, cannot be objected to and comes within the ambit of powers available to the CBDT as above. 21. Although, the a....
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....low:- "Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with some one else, or may allow some one else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them ". "Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise ". 14. The present was thus a clear case of exercise of power on the basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction vested in him by the statute and did not grant approval to the recording of information unde....
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....pproval of the assessment order in terms of the CBDT Circular. Thus, we find the order to be vitiated in law. 24. In view of the above, the assessment order cannot be result of an independent application of mind and exercise of discretionary power by the Assessing Officer in terms of Section 143(3) of the Act and but is an order passed under the influence and directions of the superior officers. It is to be noticed that the consultation with a superior officer would be akin to directions of the superior. There is no room available for discretion where consultation is sought from a superior officer while if a superior officer consults his subordinates, the discretion continues to stay with him. He may choose not to follow the advice of his subordinate but the opposite would be untrue. We are, thus, of firm view that the order has been passed whereby the Assessing Officer has abdicated his authority and, therefore, the order has become vitiated in law. 25. The next aspect which requires to be examined is the contention relating to the non-compliance of principles of natural justice. 26. While the learned counsel for the revenue contends that they had sent several notices to ....
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....n provided to an aggrieved assessee and limitation provided under Section 33(A)(a) to suo-moto call for record by the authority for revising the order and observed as under:- "12. It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed there for. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made: that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locuspaetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time. 13. So far as the party who is affected by the order....
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....ic finding that no evidence has been adduced by the Department to show that the impugned order dated 26-3- 2004 passed by the assessing officer was indeed passed before the statutory time limit." 30. The revenue before us has contended that the order which is undated, was actually passed and made on 31.03.2024 and was also placed on portal on 31.03.2024. In support of their contention, they further submitted that the order of demand placed on portal along with order of assessment on 04.04.2024, mentions of the assessment order having been passed on 31.03.2024 and, therefore, it has taken pains to submit that actually the order of assessment was made on 31.03.2024 and a presumption should be drawn in their favour. We are unable to accept the contention raised by learned counsel for the revenue that the orders were made on 31.03.2024 and therefore, it is not relevant as to when they were communicated. Since there is no date on the order, a presumption of the order having been issued on 31.03.2024, cannot be made. It appears that the officers of the department having noticed their folly, in order to save themselves from the question of passing orders beyond limitation period (presu....