Deputy Commissioner of Income tax, Circle-11(4), Bangalore V. M/s Indo American Hybrid Seeds India P Ltd, Bangalore

ITA 1283/BANG/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9498 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 20-10-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business income; Opportunity of being heard; Principle of natural justice; Period of limitation; Competent authority; Condonation of delay
• Section: 143(3); 142(1); 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, BANGALORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO. 1283/ BANG/20 1 4 (ASSESSMENT YEAR: 20 09 - 10 ) DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE 11(4), BANGALORE. VS. APPELLANT M/S.INDO AMERICAN HYBRID SEEDS INDIA PVT.LTD. PB NO.7099, 7 TH KM, BANASHANKARI - KENGERI LINK ROAD,CHANNASANDRA VILLAGE, SUBRAMANYAPURA PO, BANGALORE - 560001. PA NO. AAACI 4027 J RESPONDENT AND CROSS OBJN.NO.142/BANG/2015 (IN ITA NO. 1283/ BANG/20 14) (ASSESSMENT YEAR: 2009 - 10 ) (BY THE ASSESSEE) REVENUE BY : SHRI SUNIL KUMAR AGARWAL,JCIT(DR) ASSESSEE BY : SHRI S.ANNAMALAI, ADVOCATE. DATE OF HEARING : 18/07/2016 DATE OF PRONOUNCEMENT : 11 /08/2016 O R D E R PER I NTURI RAMA RAO, AM : THE APPEAL IS FILED BY THE REVENUE AND THE CROSS - OBJECTIONS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE CIT(A) - I, BANGALORE, DATED 27/06/2014, FOR THE ASSESSMENT YEAR 2009 - 10. ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 2 OF 23 2. BRIEFLY, FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPA NY DULY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956. IT IS ENGAGED IN THE BUSINESS OF CULTIVATION AND SALE OF SEEDS. THE ASSESSEE - COMPANY FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ON 25/9/2009 DECLARING A LOSS OF RS.17,04,635/AFTER CLAIMING EXEMPTION OF RS.8,36,50,750/ - AS AGRICULTURAL INCOME UNDER THE PROVISIONS OF OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT]. ADMITTEDLY, THERE WERE NO SCRUTINY ASSESSMENT PROCEEDINGS AGAINST SAID RETURN OF INCOME. SUBSEQUENTLY, THE AO ISSUED NOTICE US 148 OF THE ACT ON 29/3/2012 REQUIRING THE ASSESSEE - COMPANY TO FILE RETURN OF INCOME. IN RESPONSE TO THIS NOTICE, ASSESSEE - COMPANY SUBMITTED THAT THE ORIGINAL RETURN OF INCOME FILED U/S 139(1) ON 25/ 09/2009 MAY BE TREATED AS RETURN IN RESPONSE TO NOTICE U/S 148 OF THE ACT. IN THE SAME LETTER, THE ASSESSEE - COMPANY ALSO REQUESTED THE AO TO FURNISH REASONS RECORDED FOR ISSUANCE OF NOTICE U/S 148 OF THE ACT. SUBSEQUENTLY, THE AO ISSUED NOTICE U/S 143(2) ON 29/3/2012 AND FINALLY THE ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147 ON 31/10/2012 TREATING AGRICULTURAL INCOME AS BUSINESS INCOME COMPUTED AT RS.6,15,66,724/ - AFTER SETTING OFF BROUGHT FORWARD LOSS AS CLAIMED BY THE ASSESSEE OF RS.6,15,66,724/ - , T AX WAS COMPUTED AT NIL. HOWEVER, TAX LIABILITY UNDER THE PROVISIONS OF SEC.115JB WAS COMPUTED TREATING THE INCOME CLAIMED AS AGRICULTURAL INCOME AS BUSINESS INCOME AND THE LIABILITY WAS COMPUTED. ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 3 OF 23 3. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE TH E CIT(A) - I, BANGALORE, WHO VIDE ORDER DATED 27/06/2014 QUASHED THE RE - ASSESSMENT PROCEEDINGS ON THE GROUND THAT THE AO HAD NOT ISSUED NOTICE U/S 143(2) PLACING RELIANCE ON THE FOLLOWING DECISIONS: THE RELEVANT PARAGRAPHS OF THE CIT(A) S ORDER ARE REPRODU CED BELOW: ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 4 OF 23 4. BEING AGGRIEVED, REVENUE IS BEFORE US IN THE PRESENT APPEAL. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS UNDER: ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 5 OF 23 6. BEFORE US, LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY CONTENDED THAT THE CIT(A) OUGHT NOT TO HAVE HELD THAT NO NOTICE U/S 143(2) WAS ISSUED INASMUCH AS THE AO HAS RECORDED A CATEGORICAL FINDING THAT NOTICE U/S 143(2) AND NOTICE U/S 142(1) WAS ISSUED ON 290/3/2012, AT PAGE 2 OF THE ASSESSMENT ORDER. THE LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT FROM A PERUSAL OF THE ASSESSMENT ORDER, IT IS CRYSTAL CLEAR THAT THE ASSESSEE - COMPANY HAD PARTICIPATED IN THE ASSESSMENT PROCEEDINGS ON VARIOUS DATES. THUS, HE SUBMITTED THAT THE CIT(A) HAD MISDIRECTED HIMSELF IN HOLDING THAT NO NOTICE U/S 143(2) WAS ISSUED. HE FURTHER SUBMITTED THAT THE ASSESSEE - COMPANY HAD NOT OBJECTED TO NON - SERVICE OF NOTICE BEFORE THE AO AND HAVING PARTICIPATED IN THE ASSESSMENT PROCEEDINGS, THE CASE IS GOVERNED BY THE PROVISIONS OF SECTION 292BB OF THE ACT. HE FURTHER SUBMITTED THAT MERE NON - SERVICE OF NOTICE DOES NOT RENDER THE ASSESSMENT ORDER NULL AND VOID. FOR THIS PROPOSITION, HE RELIED ON THE FOLLOWING DECISIONS: I. CIT VS. RAM NARAIAN BANSAL (13 TAXMAN.COM 216)(P&H); II. ASHOK CHADHA VS. ITO (2012)(20 TAXMANN.COM38)(DE L); III. K.J.THOMAS VS. CIT (2008) 30 ITR 301(KERL); AND IV. CIT VS. MADHYA BHARAT ENERGY CORPORATION LTD .(2012) 20 TAXMANN.COM 557(DEL). 7. ON THE OTHER HAND, LEARNED COUNSEL FOR THE ASSESSEE - COMPANY SUBMITTED THAT NO NOTICE WAS ISSUED U/S 143(2) OF THE ACT. THEREFORE, NON - SERVICE OF NOTICE US 143(2) RENDERS THE ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 6 OF 23 ASSESSMENT VOID AND IN THIS CONNECTION, HE PLACED RELIANCE ON THE FOLLOWING DECISIONS: LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PROVISIONS OF SECTION 292BB ARE APPLICABLE ONLY IN RESPECT OF SERVICE OF NOTICE AND DOES NOT COVER THE CASE OF ISSUE OF NOTICE. IN SUPPORT OF THIS PROPOSITION, HE RELIED ON THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. SILVER LINE ( 28 3 CTR 148) AND THE DECISION OF THE HON BLE ALLAHABAD HIGH COURT IN THE CASE OF NAWAL KISHORE & SONS JEWELLERS VS. CIT (2012) 79 DTR 241)(ALL.) 8. WE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ONLY ISSUE THAT ARISE S FOR CONSIDERATION IN THE PRESENT APPEAL IS WHETHER THE NOTICE U/S 143(2) WAS ISSUED BEFORE ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 7 OF 23 COMPLETION OF THE ASSESSMENT PURSUANT TO ISSUE OF NOTICE U/S 148 OF THE ACT. FROM A PERUSAL OF THE ASSESSMENT ORDER, IT IS CLEAR THAT THE AO HAD GIVEN A CATEGORIC AL FINDING THAT AFTER ISSUING NOTICE U/S 148 AND AFTER RECEIPT OF LETTER FROM THE ASSESSEE - COMPANY REQUESTING TO TREAT ORIGINAL RETURN OF INCOME AS RETURN IN RESPONSE TO NOTICE U/S 148, THE CASE WAS SELECTED FOR SCRUTINY AND REQU IRED NOTICE U/S 143(2) WAS ISSUED ON 29/03/2012. IT WAS FURTHER STATED THAT EVEN A QUESTIONNAIRE U/S 142(1) WAS ISSUED ON 21/8/2012. ADMITTEDLY, THE ASSESSEE - COMPANY HAD PARTICIPATED IN THE ASSESSMENT PROCEEDINGS AND ALSO COMPLIED WITH QUESTIONNAIRE ISSUED U /S 142(1) OF THE ACT. BUT IT APPEARS FROM THE ORDER OF THE CIT(A) THAT THE ASSESSEE - COMPANY TOOK A STAND THAT NO NOTICE U/S 143(2) WAS ISSUED AND THEREFORE IT WAS CONTENDED THAT THE ASSESSMENT ORDER PASSED WAS VOID AB INITIO PLACING RELIANCE ON THE FOLLOW ING DECISIONS: I. CIT VS. LUNAR DIAMONDS (2006) (281 ITR 1)(DEL); II. ACIT VS. HOTEL BLUE MOON (2010) 321 ITR 362)(SC); AND III. CIT VS. CPR CAPITAL SERVICES LTD. (2011) (330 ITR 43)(DEL) 9. THE CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE - COMPANY, CALLED FOR A REMAND REPORT FROM THE AO. HOWEVER IT IS STATED THAT THE AO HAD NOT FURNISHED REMAND REPORT AND CONSEQUENTLY DRAWN ADVERSE INFERENCE THAT NO NOTICE WAS ISSUED U/S 143(2) FOLLOWING THE LAW LAID DOWN IN THE DECISIONS CITED SUPRA. THE CIT(A) HELD THAT THE ASSESSMENT ORDER PASSED IS WITHOUT VALID JURISDICTION AND ANNULLED THE ASSESSMENT. IN OUR ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 8 OF 23 CONSIDERED OPINION, THE CIT(A) HAD LOST SIGHT OF THE FACT THAT THE ASSESSEE - COMPANY HAD PARTICIPATED IN THE ASSESSMENT PROCEEDINGS. THE FAC T THAT THE ASSESSEE - COMPANY HAD PARTICIPATED IN THE ASSESSMENT PROCEEDINGS, IFS O FACTO ESTABLISHES THAT THE AO HAD ISSUED 143(2) NOTICE. IN THE ABSENCE OF SUCH NOTICE, THE QUESTION OF PARTICIPATING IN THE ASSESSMENT PROCEEDINGS DOES NOT ARISE. MOREOVER, WHEN THE AO HAD GIVEN CATEGORICAL FINDING THAT NOTICE U/S 143(2) WAS ISSUED ON 29/3/2012, ONUS LIES ON THE ASSESSEE TO PROVE THAT NO NOTICE WAS ISSUED. EVEN RULE 10 OF THE ITAT RULES 1963 SPECIFICALLY LAYS DOWN THAT WHERE A FACT CONTRARY TO RECORD IS ALLE GED, IT SHALL BE STATED CLEARLY AND CONCISELY AND SUPPORTED BY DULY SWORN AFFIDAVIT. THERE IS NOTHING DISCERNABLE FROM THE ORDER OF THE CIT(A) TO SAY THAT THE ASSESSEE - COMPANY HAD FILED AN AFFIDAVIT ALLEGING THAT FINDING CONTRARY TO THE FACT AS REGARDS TH E ISSUE OF NOTICE US 143(2) WAS RECORDED BY THE AO IN THE ASSESSMENT ORDER. THE CIT(A) OUGHT NOT TO HAVE COME TO SUCH CONCLUSION THAT NO NOTICE U/S 143(2) WAS ISSUED BY THE AO EVEN THOUGH THERE WAS FAILURE BY THE ASSESSEE - COMPANY TO DISCHARGE THE BURDEN O F PROVING THE ALLEGATION THAT NO NOTICE U/S 143(2) WAS ISSUED. THUS, THERE IS PERVERSITY IN THE FINDING OF THE CIT(A) TO CONCLUDE THAT NO NOTICE U/S 143(2) WAS ISSUED. FURTHERMORE, THE LEARNED COUNSEL FOR THE ASSESSEE ALSO CANVASSED THE PROPOSITION THAT NO NOTICE U/S 143(2) WAS SERVED ON THE ASSESSEE - COMPANY. ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 9 OF 23 THEREFORE, PLACING RELIANCE ON THE FOLLOWING DECISIONS , THE CIT(A) HELD THAT THE ASSESSMENT ORDER IS NULL AND VOID. I. CIT VS. LUNAR DIAMONDS (2006) (281 ITR 1)(DEL); II. ACIT VS. HOTEL BLUE MOON (2010) 3 21 ITR 362)(SC); AND III. CIT VS. CPR CAPITAL SERVICES LTD. (2011) (330 ITR 43)(DEL) THE LEARNED COUNSEL FOR THE ASSESSEE HAD NEITHER DISPUTED THE FACT THAT THE ASSESSEE HAS PARTICIPATED IN THE ASSESSMENT PROCEEDINGS NOR THE ASSESSEE - COMPANY RAISED ANY OBJECTI ON BEFORE COMPLETION OF THE ASSESSMENT ABOUT NON - SERVICE OF NOTICE U/S 143(2). THEREFORE, THE PROVISIONS OF SECTION 292BB ARE SQUARELY APPLICABLE AND THE ASSESSEE - COMPANY IS PRECLUDED FROM TAKING THIS OBJECTION AT A LATER STAGE. THE DECISIONS RELIED UPON BY THE ASSESSEE - COMPANY ARE NOT APPLICABLE, AS T HOSE DECISIONS WERE RENDERED IN THE CASES WHERE THE PROVISIONS OF ESC.292BB WERE NOT APPLICABLE. THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE PROVISIONS OF SECTION 292BB ARE NOT APPLICABLE TO A CASE OF NON - ISSUE OF NOTICE, CANNOT BE ACC EPTED AS WE HELD SUPRA THAT IT CANNOT BE PRESUMED THAT NO NOTICE U/S 143(2) WAS SERVED. EVEN OTHERWISE ALSO, LAW APPLICABLE TO SERVICE OF NOTICE IS EQUALLY APPLICABLE TO ISSUE OF NOTICE AS THE EXPRESSION SERVE AND ISSUE ARE INTERCHANGEABLE AS HAS BEE N NOTICED IN SECTION 27 OF THE GENERAL CLAUSES ACT 1887 AND AS HELD BY THE HON BLE SUPREME COURT IN THE CASE OF BANARSI DEVI VS. ITO REPORTED IN AIR 1964 SC 1742. THE HON BLE PUNJAB & HAR YANA ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 10 OF 23 HIGH COURT, IN THE CASE OF V.R.A.COTTON M ILLS (P) LTD. VS. UN ION OF INDIA (2013) (359 ITR 495) AFTER REFERRING TO TH E JUDGMENTS OF THE HON BLE SUPREME COURT IN THE CASE OF CIT VS. AVI - OIL INDIA (P) LTD. (2010)323 ITR 242)(PUNJ.&HAR.) & ACIT VS. HOTEL BLUE MOON (2010) 188 TAXMAN 113)(SC) AS WELL AS EARLIER DECISIONS WHICH HAVE BEEN RENDERED ON THE ISSUE OF NOTICE U/S 143(2) HELD THAT EARLIER JUDGMENTS ARE RENDERED IN IGNORANCE OF STATUTORY AND OTHER BINDING PRECEDENTS AND THEREFORE, DO NOT LA Y DOWN ANY BINDING PRINCIPLE AND THE SAME ARE PER INCURIAM . THE RELEVANT P AR AGRAPHS OF THE JUDGMENT ARE EXTRACTED BELOW: 6. WE ARE OF THE OPINION THAT THE EXPRESSIONS SERVE AND ISSUE ARE INTERCHANGEABLE, AS HAS BEEN NOTICED IN SECTION 27 OF THE GENERAL CLAUSES ACT, 1887 AND ALSO IN A JUDGMENT OF HON BLE SUPREME COURT REPORTED AS BANARSI DEVI VS. THE INCOME TAX OFFICER, DISTRICT IV, CALCUTTA AND OTHERS AIR 1964 SC 1742. IN THE AFORESAID CASE, AN ARGUMENT WAS RAISED THAT SECTION 4 OF THE AMENDING ACT (ACT NO.1 OF 1959) ONLY SAVES A NOTICE ISSUED AFTER THE PRESCRIBED TI ME, BUT DOES NOT APPLY TO A SITUATION WHERE NOTICE IS ISSUED WITHIN BUT SERVED OUT OF TIME. THE COURT OBSERVED AS UNDER: '(10). ...SECTION 4 OF THE AMENDING ACT WAS ENACTED FOR SAVING THE VALIDITY OF NOTICES ISSUED UNDER SECTION 34(1) OF THE ACT. WHEN THAT SECTION USED A WORD INTERPRETED BY COURTS IN THE CONTEXT OF SUCH NOTICES, IT WOULD BE REASONABLE TO ASSUME THAT THE EXPRESSION WAS DESIGNEDLY USED IN THE SAME SENSE. THAT APART, THE EXPRESSIONS 'ISSUED' AND 'SERVED' ARE USED AS INTER - CHANGEABLE TERMS BOTH IN DICTIONARIES AND IN OTHER STATUTES. THE DICTIONARY MEANING OF THE WORD 'ISSUE' IS 'THE ACT OF SENDING OUT, PUT INTO CIRCULATION, DELIVER WITH AUTHORITY OR DELIVERY'. SECTION 27 OF THE GENERAL CLAUSES ACT (ACT X OF 1897) READS THUS: ' 27. MEANING OF SERV ICE BY POST WHERE ANY CENTRAL ACT OR REGULATION MADE AFTER THE COMMENCEMENT OF THIS ACT AUTHORIZES OR REQUIRES ANY DOCUMENT TO BE SERVED BY POST, WHETHER THE EXPRESSION 'SERVE' OR EITHER OF THE EXPRESSIONS 'GIVE' OR 'SEND' OR ANY OTHER EXPRESSION IS USED , THEN, UNLESS A DIFFERENT INTENTION APPEARS, THE ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 11 OF 23 SERVICE SHALL BE DEEMED TO BE EFFECTED BY PROPERLY ADDRESSING, PRE - PAYING AND POSTING BY REGISTERED POST, A LETTER CONTAINING THE DOCUMENT, AND, UNLESS THE CONTRARY IS PROVED, TO HAVE BEEN EFFECTED AT THE TIME AT WHICH THE LETTER WOULD BE DELIVERED IN THE ORDINARY COURSE OF POST.' IT WOULD BE SEEN FROM THIS PROVISION THAT PARLIAMENT USED THE WORDS 'SERVE', 'GIVE' AND 'SEND' AS INTER - CHANGEABLE WORDS. SO TOO, IN SECTIONS 553, 554 AND 555 OF THE CALCUTTA MUNICIPAL ACT, 1951, THE TWO EXPRESSIONS 'ISSUED TO' OR 'SERVED UPON' ARE USED AS EQUIVALENT EXPRESSIONS. IN THE LEGISLATIVE PRACTICE OF OUR COUNTRY THE SAID TWO EXPRESSIONS ARE SOMETIMES USED TO CONVEY THE SAME IDEA. IN OTHER WORDS, THE EXPRESSION 'ISSUED ' IS USED IN A LIMITED AS WELL AS IN A WIDER SENSE. (EMPHASIS SUPPLIED). WE MUST, THEREFORE, GIVE THE EXPRESSION 'ISSUED' IN SECTION 4 OF THE AMENDING ACT THAT MEANING WHICH CARRIES OUT THE INTENTION OF THE LEGISLATURE IN PREFERENCE TO THAT WHICH DEFEATS I T. BY DOING SO WE WILL NOT BE DEPARTING FROM THE ACCEPTED MEANING OF THE EXPRESSION, BUT ONLY GIVING IT ONE OF ITS MEANINGS ACCEPTED, WHICH FITS INTO THE CONTEXT OR SETTING IN WHICH IT APPEARS.' 7. THE HON BLE SUPREME COURT IN COLLECTOR OF CENTRAL EXCISE, MADRAS VS. M/S M.M.RUBBER AND CO., TAMIL NADU 1992 SUPP (1) SCC 471 EXAMINED THE PROVISIONS IN THE CONTEXT OF TIME FOR THE COMMENCEMENT OF LIMITATION SUCH AS 'FROM THE DATE OF DECISION OR ORDER'. IT HAS BEEN HELD THAT LIMITATION SHALL COMMENCE IN THE CASES WHERE A RIGHT OF THE PARTY IS TO AVAIL REMEDY OF APPEAL ETC. IS CONCERNED FROM THE DATE OF COMMUNICATION OF THE DECISION OR ORDER APPEALED AGAINST. BUT IF AN AUTHORITY IS TO EXERCISE A POWER OR TO DO AN ACT AFFECTING THE RIGHTS OF THE PARTIES, HE SHALL EX ERCISE THAT POWER WITHIN THE PERIOD OF LIMITATION. THE DECISION OF SUCH AUTHORITY COMES INTO FORCE AND IS OPERATIVE FROM THE DATE, IT IS SIGNED BY HIM. THE COURT HELD: '9. THE WORDS 'FROM THE DATE OF DECISION OR ORDER' USED WITH REFERENCE TO THE LIMITATION FOR FILING AN APPEAL OR REVISION UNDER CERTAIN STATUTORY PROVISIONS HAD COME UP FOR CONSIDERATION IN A NUMBER OF CASES, WE MAY STATE THAT THE RATIO OF THE DECISIONS UNIFORMLY IS THAT IN THE CASE OF A PERSON AGGRIEVED FILING THE APPEAL OR REVISION, IT SHAL L MEAN THE DATE OF COMMUNICATION OF THE DECISION OR ORDER APPEALED AGAINST. HOWEVER, WE MAY NOTE A FEW LEADING CASES ON THIS ASPECT. XXX XXX XXX 11. THE RATIO OF THESE JUDGMENTS WAS APPLIED IN INTERPRETING SEC. 33A(2) OF THE INDIAN INCOME TAX ACT, ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 12 OF 23 1922 IN MUTHIA CHETTIAR V. C.I.T., ILR 1951 MAD 815 WITH REFERENCE TO A RIGHT OF REVISION PROVIDED TO AN AGGRIEVED ASSESSEE. SECTION 33A(I) OF THE ACT ON THE OTHER HAND AUTHORISED THE COMMISSIONER TO SUO MOTU CALL FOR THE RECORDS OF ANY PROCEEDINGS UNDER THE ACT I N WHICH AN ORDER HAS BEEN PASSED BY ANY AUTHORITY SUBORDINATE TO HIM AND PASS SUCH ORDER THEREON AS HE THINKS FIT. THE PROVISO, HOWEVER, STATED THAT THE COMMISSIONER SHALL NOT REVISE ANY ORDER UNDER THAT SUB - SECTION 'IF THE ORDER (SOUGHT TO BE REVISED) HA S BEEN MADE MORE THAN ONE YEAR PREVIOUSLY'. CONSTRUING THIS PROVISION THE HIGH COURT IN MUTHIA CHETTIAR'S CASE HELD THAT THE POWER TO CALL FOR THE RECORDS AND PASS THE ORDER WILL CEASE WITH THE LAPSE OF ONE YEAR FROM THE DATE OF THE ORDER BY THE SUBORDINAT E AUTHORITY AND THE RATIO OF DATE OF THE KNOWLEDGE OF THE ORDER APPLICABLE TO AN AGGRIEVED PARTY IS NOT APPLICABLE FOR THE PURPOSE OF EXERCISING SUO MOTU POWER. SIMILARLY IN ANOTHER DECISION REPORTED IN VISWANATHAN CHETTIAR V. COMMR. OF INCOME TAX, MADRAS, 25 ITR 79 MAD , CONSTRUING THE TIME LIMIT FOR COMPLETION OF AN ASSESSMENT UNDER SECTION 34(2) OF THE INCOME TAX ACT, 1922, WHICH PROVIDED THAT IT SHALL BE MADE 'WITHIN FOUR YEARS FROM THE END OF THE YEAR IN WHICH THE INCOME, PROFIT AND GAINS WERE FIRST ASS ESSABLE', IT WAS HELD THAT THE TIME LIMIT OF FOUR YEARS FOR EXERCISE OF THE POWER SHOULD BE CALCULATED WITH REFERENCE TO THE DATE ON WHICH THE ASSESSMENT OR REASSESSMENT WAS MADE AND NOT THE DATE ON WHICH SUCH ASSESSMENT OR REASSESSMENT ORDER MADE UNDER SE CTION 34(2) WAS SERVED ON THE ASSESSEE. 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 THEREFORE. 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 LOCUS PANETENTIAE. NORMALLY THAT HAPPENS WHEN THE ORDER OR DECISION IS MADE PUBLIC OR NOTIFIED IN SOME FORM OR WHEN IT CA N 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. (EMPHASIS SUPPLIED) 13. SO F AR AS THE PARTY WHO IS AFFECTED BY THE ORDER OR ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 13 OF 23 DECISION FOR SEEKING HIS REMEDIES AGAINST THE SAME, HE SHOULD BE MADE AWARE OF PASSING OF SUCH ORDER. THEREFORE COURTS HAVE UNIFORMLY LAID DOWN AS A RULE OF LAW THAT FOR SEEKING THE REMEDY THE LIMITATION STAR TS FROM THE DATE ON WHICH THE ORDER WAS COMMUNICATED TO HIM OR THE DATE ON WHICH IT WAS PRONOUNCED OR PUBLISHED UNDER SUCH CIRCUMSTANCES THAT THE PARTIES AFFECTED BY IT HAVE A REASONABLE OPPORTUNITY OF KNOWING OF PASSING OF THE ORDER AND WHAT IT CONTAINS. THE KNOWLEDGE OF THE PARTY AFFECTED BY SUCH A DECISION, EITHER ACTUAL OR CONSTRUCTIVE IS THUS AN ESSENTIAL ELEMENT WHICH MUST BE SATISFIED BEFORE THE DECISION CAN BE SAID TO HAVE BEEN CONCLUDED AND BINDING ON HIM. OTHERWISE THE PARTY AFFECTED BY IT WILL HA VE NO MEANS OF OBEYING THE ORDER OR ACTING IN CONFORMITY WITH IT OR OF APPEALING AGAINST IT OR OTHERWISE HAVING IT SET. THIS IS BASED UPON, AS OBSERVED BY RAJAMANNER, C.J. IN MUTHIA CHETTIAR V. C.I.T. (SUPRA) 'A SALUTARY AND JUST PRINCIPLE'. THE APPLICATIO N OF THIS RULE SO FAR AS THE AGGRIEVED PARTY IS CONCERNED IS NOT DEPENDENT ON THE PROVISIONS OF THE PARTICULAR STATUTE, BUT IS SO UNDER THE GENERAL LAW. XXX XXX XXX 18. THUS IF THE INTENTION OR DESIGN OF THE STATUTORY PROVISION WAS TO PROTECT THE INTEREST OF THE PERSON ADVERSELY AFFECTED, BY PROVIDING A REMEDY AGAINST THE ORDER OR DECISION ANY PERIOD OF LIMITATION PRESCRIBED WITH REFERENCE TO INVOKING SUCH REMEDY SHALL BE READ AS COMMENCING FROM THE DATE OF COMMUNICATION OF THE ORDER. BUT IF IT IS A LIMITAT ION FOR A COMPETENT AUTHORITY, TO MAKE AN ORDER THE DATE OF EXERCISE OF THAT POWER AND IN THE CASE OF EXERCISE OF SUO MOTU POWER OVER THE SUBORDINATE AUTHORITIES' ORDERS, THE DATE, ON WHICH SUCH POWER WAS EXERCISED BY MAKING AN ORDER ARE THE RELEVANT DATES FOR DETERMINING THE LIMITATION. THE RATIO OF THIS DISTINCTION MAY ALSO BE FOUNDED ON THE PRINCIPLE THAT THE GOVERNMENT IS BOUND BY THE PROCEEDINGS OF ITS OFFICERS BUT PERSONS AFFECTED ARE NOT CONCLUDED BY THE DECISION.' 8. THE SAID PRINCIPLE OF THE ISSUE OF A NOTICE OR COMMUNICATION HAS ALSO COME UP FOR CONSIDERATION BEFORE THE HON BLE SUPREME COURT IN THE CONTEXT OF THE PROVISIONS OF SECTION 4 OF THE CONTRACT ACT, 1872. IT HAS BEEN HELD THAT THE MOMENT THE PROPOSER PUTS HIS PROPOSAL IN THE COURSE OF TRAN SMISSION, IT IS COMPLETE AS AGAINST THE ACCEPTOR I.E. ADDRESSEE. THEREFORE, THE MOMENT THE NOTICE IS SIGNED AND PUT IN THE COURSE OF TRANSMISSION BY THE DEPARTMENT, THE NOTICE IS DEEMED TO BE SERVED AS THE COMMUNICATION IS OUT OF THE PROPOSER. IT HAS BEEN SO HELD BY THE HON BLE SUPREME COURT IN BHAGWANDAS GOVERDHANDAS KEDIA V. GIRDHARILAL PARSHOTTAMDAS & CO., AIR 1966 SC 543, WHEREIN IT HAS ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 14 OF 23 BEEN HELD TO THE FOLLOWING EFFECT: 'BY THE SECOND CLAUSE OF SECTION 4, THE COMMUNICATION OF AN ACCEPTANCE IS COMPLETE AS AGAINST THE PROPOSER, WHEN IT IS PUT IN A COURSE OF TRANSMISSION TO HIM, SO AS TO BE OUT OF THE POWER OF THE ACCEPTOR. THIS IMPLIES THAT WHERE COMMUNICATION OF AN ACCEPTANCE IS MADE AND IT IS PUT IN A COURSE OF TRANSMISSION TO THE PROPOSER, THE ACCEPTAN CE IS COMPLETE AS AGAINST THE PROPOSER: AS AGAINST THE ACCEPTOR, IT BECOMES COMPLETE WHEN IT COMES TO THE KNOWLEDGE OF THE PROPOSER. IN THE MATTER OF COMMUNICATION OF REVOCATION IT IS PROVIDED THAT AS AGAINST THE PERSON WHO MAKES THE REVOCATION IT BECOMES COMPLETE WHEN IT IS PUT INTO A COURSE OF TRANSMISSION TO THE PERSON TO WHOM IT IS MADE, SO AS TO BE OUT OF THE POWER OF THE PERSON WHO MAKES IT, AND AS AGAINST THE PERSON TO WHOM IT IS MADE WHEN IT COMES TO HIS KNOWLEDGE'. 9. SUBSEQUENTLY IN STATE OF PUNJAB V. KHEMI RAM, AIR 1970 SC 214, THE COURT OBSERVED AS: '16. ...IT WILL BE SEEN THAT IN ALL THE DECISIONS CITED BEFORE US, IT WAS THE COMMUNICATION OF THE IMPUGNED ORDER WHICH WAS HELD TO BE ESSENTIAL AND NOT ITS ACTUAL RECEIPT BY THE OFFICER CONCERNE D AND SUCH COMMUNICATION WAS HELD TO BE NECESSARY BECAUSE TILL THE ORDER IS ISSUED AND ACTUALLY SENT OUT TO THE PERSON CONCERNED THE AUTHORITY MAKING SUCH ORDER WOULD BE IN A POSITION TO CHANGE ITS MIND AND MODIFY IT IF IT THOUGHT FIT. BUT ONCE SUCH AN ORD ER IS SENT OUT, IT GOES OUT OF THE CONTROL OF SUCH AN AUTHORITY, AND THEREFORE, THERE WOULD BE NO CHANCE WHATSOEVER OF ITS CHANGING ITS MIND OR MODIFYING IT. IN OUR VIEW, ONCE AN ORDER IS ISSUED AND IT IS SENT OUT TO THE CONCERNED GOVERNMENT SERVANT, IT MU ST BE HELD TO HAVE BEEN COMMUNICATED TO HIM, NO MATTER WHEN HE ACTUALLY RECEIVED IT. WE FIND IT DIFFICULT TO PERSUADE OURSELVES TO ACCEPT THE VIEW THAT IT IS ONLY FROM THE DATE OF THE ACTUAL RECEIPT BY HIM THAT THE ORDER BECOMES EFFECTIVE. IF THAT BE THE T RUE MEANING OF COMMUNICATION, IT WOULD BE POSSIBLE FOR A GOVERNMENT SERVANT TO EFFECTIVELY THWART AN ORDER BY AVOIDING RECEIPT OF IT BY ONE METHOD OR THE OTHER TILL AFTER THE DATE OF HIS RETIREMENT EVEN THOUGH SUCH AN ORDER IS PASSED AND DESPATCHED TO HIM BEFORE SUCH DATE. AN OFFICER AGAINST WHOM ACTION IS SOUGHT TO BE TAKEN, THUS, MAY GO AWAY FROM THE ADDRESS GIVEN BY HIM FOR SERVICE OF SUCH ORDERS OR MAY DELIBERATELY GIVE A WRONG ADDRESS AND THUS PREVENT OR DELAY ITS RECEIPT AND BE ABLE TO DEFEAT ITS SERV ICE ON HIM. SUCH A MEANING OF THE WORD 'COMMUNICATION' OUGHT NOT TO BE GIVEN UNLESS THE PROVISION IN QUESTION EXPRESSLY SO PROVIDES. ACTUALLY KNOWLEDGE BY HIM OF AN ORDER WHERE IT IS ONE OF DISMISSAL, MAY, PERHAPS, BECOME NECESSARY BECAUSE OF ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 15 OF 23 THE CONSEQUEN CES WHICH THE DECISION IN THE STATE OF PUNJAB V. AMAR SINGH HARIKA AIR 1966 SC 1313 CONTEMPLATES. BUT SUCH CONSEQUENCES WOULD NOT OCCUR IN THE CASE OF AN OFFICER WHO HAS PROCEEDED ON LEAVE AND AGAINST WHOM AN ORDER OF SUSPENSION IS PASSED BECAUSE IN HIS CA SE THERE IS NO QUESTION OF HIS DOING ANY ACT OR PASSING ANY ORDER AND SUCH ACT OR ORDER BEING CHALLENGED AS INVALID.' 10. LEARNED COUNSEL FOR THE PETITIONER HAS ALSO RELIED UPON THE JUDGMENT OF HON BLE SUPREME COURT IN ASSISTANT COMMISSIONER OF INCOME TAX AND ANOTHER VS. HOTEL BLUE MOON (2010) 3 SCC 259 . BUT THE SAID JUDGMENT DOES NOT PROVIDE ANY HELP TO THE ARGUMENT RAISED. IN FACT, IN PARA 7 OF THE SAID JUDGMENT, IT HAS BEEN OBSERVED THAT THE ASSESSING OFFICER HAS TO ISSUE NOTICE UNDER SECTION 143 (2) WIT HIN THE PRESCRIBED TIME - LIMIT TO MAKE THE ASSESSEE AWARE THAT HIS RETURN HAS BEEN SELECTED FOR SCRUTINY ASSESSMENT. 11. IN AVI - OIL INDIA P. LTD. CASE (SUPRA) , THE PROVISIONS OF THE CONTRACT ACT, THE JUDGMENTS OF THE HON BLE SUPREME COURT WERE NOT BROUGHT T O THE NOTICE OF THE BENCH; THEREFORE, THE BENCH HAS TAKEN A VIEW ON THE LITERAL MEANING OF WORD EXPRESSION 'SERVE'. IN VIEW OF THE ABOVE, THE JUDGMENT RENDERED BY THE DIVISION BENCH OF THIS COURT IN AVI - OIL INDIA P. LTD. CASE (SUPRA) IS IN IGNORANCE OF THE STATUTORY AND OTHER BINDING PRECEDENTS, THEREFORE, DOES NOT LAY DOWN ANY BINDING PRINCIPLE AND THE SAME IS PER INCURIAM. 12. ANOTHER JUDGMENT RELIED UPON BY THE PETITIONER IS KUNJ BEHARI VS. INCOME TAX OFFICER, DISTRICT - II (VI), AMRITSAR AND OTHERS 1983 ( 139) ITR 73 . THE ISSUE RAISED IN THE AFORESAID CASE IS NOT OF ISSUANCE OR SERVING OF A NOTICE, BUT METHOD OF SUBSTITUTED SERVICE. THE ISSUE RAISED IS NOT NECESSARY TO BE DECIDED IN THE PRESENT CASE, AS NOTICE HAS BEEN ISSUED WITHIN THE TIME PRESCRIBED. THA T ISSUANCE OF NOTICE IS SUFFICIENT COMPLIANCE OF THE PROVISIONS OF SECTION 143(2) OF THE ACT. WE MAY NOTICE THAT HON BLE SUPREME COURT IN COMMISSIONER OF SALES TAX AND OTHERS VS. SUBHASH & CO. (2003) 3 SCC 454 OBSERVED AS UNDER: ' 12. WHETHER SERVICE OF NOTI CE IS VALID OR NOT IS ESSENTIALLY A QUESTION OF FACT. IN THE INSTANT CASE, LEARNED SINGLE JUDGE FOUND THAT CERTAIN PROCEDURES WERE NOT FOLLOWED WHILE EFFECTING SERVICE BY AFFIXTURE. THERE WAS NO FINDING RECORDED THAT SUCH SERVICE WAS NON EST IN THE EYE OF THE LAW. IN A GIVEN CASE, IF THE ASSESSEE KNOWS ABOUT THE PROCEEDINGS AND THERE IS SOME IRREGULARITY IN THE SERVICE OF NOTICE, THE DIRECTION FOR CONTINUING PROCEEDINGS CANNOT BE FAULTED. IT WOULD DEPEND UPON THE NATURE OF IRREGULARITY AND ITS EFFECT AND TH E QUESTION OF PREJUDICE WHICH ARE TO BE ADJUDICATED IN EACH CASE ON THE BASIS OF SURROUNDING FACTS. IF, HOWEVER, THE SERVICE OF NOTICE IS TREATED AS ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 16 OF 23 NON EST IN THE EYE OF THE LAW, IT WOULD NOT BE PERMISSIBLE TO DIRECT DE NOVO ASSESSMENT WITHOUT CONSIDERING THE QUESTION OF LIMITATION. THERE ALSO THE QUESTION OF PREJUDICE HAS TO BE CONSIDERED. XXX XXX XXX 22. THE EMERGING PRINCIPLES ARE: (I) NON - ISSUE OF NOTICE OR MISTAKE IN THE ISSUE OF NOTICE OR DEFECTIVE SERVICE OF NOTICE DOES NOT AFFECT THE JURISDICTION OF THE ASSESSING OFFICER, IF OTHERWISE REASONABLE OPPORTUNITY OF BEING HEARD HAS BEEN GIVEN. (II) ISSUE OF NOTICE AS PRESCRIBED IN THE RULES CONSTITUTES A PART OF REASONABLE OPPORTUNITY OF BEING HEARD. (III) IF PREJUDICE HAS BEEN CAUSED BY NON - ISSUE OR INVALID SERVICE OF NOTICE THE PROCEEDING WOULD BE VITIATED. BUT IRREGULAR SERVICE OF NOTICE WOULD NOT RENDER THE PROCEEDINGS INVALID; MORE SO, IF THE ASSESSEE BY HIS CONDUCT HAS RENDERED SERVICE IMPRACTICABLE OR IMPOSSIBLE. (IV) IN A GIVEN CASE WHEN THE PR INCIPLES OF NATURAL JUSTICE ARE STATED TO HAVE BEEN VIOLATED IT IS OPEN TO THE APPELLATE AUTHORITY IN APPROPRIATE CASES TO SET ASIDE THE ORDER AND REQUIRE THE ASSESSING OFFICER TO DECIDE THE CASE DE NOVO.' 13. IN VIEW OF THE SAID JUDGMENT, THE DATE OF RECE IPT OF NOTICE BY THE ADDRESSEE IS NOT RELEVANT TO DETERMINE, AS TO WHETHER THE NOTICE HAS BEEN ISSUED WITHIN THE PRESCRIBED PERIOD OF LIMITATION. THE EXPRESSION SERVE MEANS THE DATE OF ISSUE OF NOTICE. THE DATE OF RECEIPT OF NOTICE CANNOT BE LEFT TO BE UND ETERMINED DEPENDENT UPON THE WILL OF THE ADDRESSEE. THEREFORE, TO BRING CERTAINLY AND TO AVOID ATTEMPTS OF THE ADDRESSEE TO EVADE THE PROCESS OF RECEIPT OF NOTICE, THE PURPOSE OF THE STATUTE WILL BE BETTER SERVED, IF THE DATE OF ISSUE OF NOTICE IS CONSIDER ED AS COMPLIANCE OF THE REQUIREMENT OF PROVISO TO SECTION 143(2) OF THE ACT. IN FACT THAT IS THE ONLY CONCLUSION THAT CAN BE ARRIVED AT TO THE EXPRESSION SERVE' APPEARING IN SECTION 143(2) OF THE ACT. CONSEQUENTLY, WE DO NOT FIND ANY MERIT IN THE PRESENT PETITION. THE SAME IS DISMISSED. 10. THE DECISION OF THE HON BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF V.R.A.COTTON MILLS (P) LTD (SUPRA) IS LATEST ONE AND ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 17 OF 23 CONSIDERED ALL THE PRECEDENTS ON THE ISSUE AND THEREFORE, IN OUR CONSIDERED OPINION, TH IS DECISION HA S NO MORE PERSUASIVE VALUE AND REASONED ONE AND THE RATIO OF THE DECISION SHOULD BE APPLIED TO THE INSTANT CASE ALSO. ACCORDINGLY, WE HOLD THAT THE JURISDICTION OF THE AO IS NOT AFFECTED FOR NON - ISSUE OF NO TICE OR NON - SERVICE OF NOTICE, IF OTHERWISE REASONABLE OPPORTUNITY OF HEARD WAS GIVEN TO THE ASSESSEE - COMPANY. FURTHER, THE LAW APPLICABLE TO SERVICE OF NOTICE IS EQUALLY APPLICABLE TO THE ISSUE OF NOTICE IN VIEW OF SEC.27 OF THE GENERAL CLAUSES ACT, 1887 AND THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF BANARSI DEVI (SUPRA) AND THE DECISION OF THE HON BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF V.R.A.COTTON MILLS (P) LTD (SUPRA) . W E H O LD THAT THERE WAS PROPER SERVICE OF NOTICE AFTER TAKING INTO CONSIDERATION THE PROVISIONS OF SECTION 292BB OF THE ACT. IN VIEW OF THE LEGAL POSITION NARRATED ABOVE, THE SAME LEGAL POSITION IS TO BE APPLIED EVEN FOR ISSUANCE OF NOTICE U/S 143(2). ACCORDINGLY, WE HOLD THAT THERE IS A VALID ISSUE OF NOTICE AND SERVICE U/S 143(2) AS WELL AS SERVICE OF NOTICE ON THE ASSESSEE - COMPANY. 11 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED. C ROSS OBJECTIONS: 12 . THE CROSS - OBJECTIONS ARE FILED BY THE ASSESSEE - COMPANY. THE ASSESSEE - COMPANY RAISED THE FOLLOWING CROSS OBJECTIONS: ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 18 OF 23 ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 19 OF 23 ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 20 OF 23 13. THERE IS A DELAY OF 113 DAYS IN FILING THE CROSS - OBJECTIONS. THE ASSESSEE - COMPANY FILED AN APPLICATION FOR CONDONATION OF DELAY STATING THAT THE ORIGINAL NOTICE OF HEARING ISSUED BY THE TRIBUNAL IN THE REVENUE S APPEAL WAS MISPLACED AND CONSEQUENTLY, THE DELAY HAD OCCURRED. IT IS SUBMITTED THAT IF DELAY IS NOT CONDONED, THE ASSESSEE - COMPANY WOULD BE PUT TO HARD AND IRREPARABLE INJURY AND KEEPING IN VIEW THE PRINCIPLES LAID DOWN BY ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 21 OF 23 THE HON BLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST.KA TIJI & OTHERS (167 ITR 471) THE DELAY MAY BE CONDONED. ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRESENTATIVE HAD NO SERIOUS OBJECTION IN CONDONING THE DELAY. 14. KEEPING IN VIEW THE PRINCIPLES LAID DOWN BY THE HON BLE SUPREME COURT IN THE CASE OF MST.KATIJI & OTHERS (SUPRA), IN OUR CONSIDERED OPINION, IT IS A FIT CASE TO CONDONE THE DELAY OF 113 DAYS. WE, ACCORDINGLY, CONDONE THE DELAY AND ADMIT THE CROSS - OBJECTIONS FOR ADJUDICATION. 15. HOWEVER, WE SHALL DEAL WITH THE VERY MAINTAINABILITY O F THE PRESENT CROSS - OBJECTIONS. FROM THE GROUNDS OF CROSS OBJECTIONS, IT IS CLEAR THAT THE ASSESSEE - COMPANY ASSAILED THE ORDER OF THE CIT(A) FOR NOT ADJUDICATING THE GROUNDS OF APPEAL ON THE MERITS AS WELL AS ON THE VALIDITY OF THE RE - ASSESSMENT PROCEEDIN GS FOR NON - FURNISHING OF THE REASONS RECORDED DESPITE GROUNDS RAISED BY THE ASSESSEE - COMPANY. THE PROVISIONS GOVERNING FILING OF CROSS - OBJECTIONS ARE FOUND AT SUB - SEC.(4) OF SEC.253 OF THE ACT WHICH READ AS UNDER: APPEALS TO THE APPELLATE TRIBU NAL. 253 (4) THE ASSESSING OFFICER OR THE ASSESSEE, AS THE CASE MAY BE, ON RECEIPT OF NOTICE THAT AN APPEAL AGAINST THE ORDER OF THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS) OR THE ASSESSING OFFICER IN PURSUANCE OF THE DIRECTION S OF THE DISPUTE RESOLUTION PANEL HAS BEEN ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 22 OF 23 PREFERRED UNDER SUB - SECTION (1) OR SUB - SECTION (2) OR SUB - SECTION (2A) BY THE OTHER PARTY, MAY, NOTWITHSTANDING THAT HE MAY NOT HAVE APPEALED AGAINST SUCH ORDER OR ANY PART THEREOF ; WITHIN THIRTY DAYS OF THE RECEI PT OF THE NOTICE, FILE A MEMORANDUM OF CROSS - OBJECTIONS, VERIFIED IN THE PRESCRIBED MANNER, AGAINST ANY PART OF THE ORDER OF THE ASSESSING OFFICER (IN PURSUANCE OF THE DIRECTIONS OF THE DISPUTE RESOLUTION PANEL) OR DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS), AND SUCH MEMORANDUM SHALL BE DISPOSED OF BY THE APPELLATE TRIBUNAL AS IF IT WERE AN APPEAL PRESENTED WITHIN THE TIME SPECIFIED IN SUB - SECTION (3) OR SUB - SECTION (3A). 16. FROM A BARE PERUSAL OF THE ABOVE PROV ISION, IT IS CLEAR THAT THE LEGISLATURE HAS CHOSEN TO USE THE EXPRESSION AGAINST SUCH ORDER OR ANY PART THEREOF WHICH MEANS THAT CROSS - OBJECTIONS CAN BE FILED WITH REFERENCE TO SAME GROUND OF APPEAL WHICH IS ADVERSELY DECIDED AGAINST THE RESPONDENT IN AP PEAL. IF, THERE HAS BEEN NO ADJUDICATION ON ANY OF THE GROUNDS OF APPEAL RAISED BEFORE THE CIT(A), THE CROSS OBJECTIONS CANNOT BE FILED ON SUCH A GROUND, THOUGH RAISED BUT NOT DECIDED SPECIFICALLY. IF THE ASSESSEE IS AGGRIEVED BY NON - ADJUDICATION PER SE , ASSESSEE CAN COME BEFORE THE TRIBUNAL ONLY BY WAY OF AN APPEAL ONLY . THUS, HAVING REGARD TO PLAIN PROVISIONS OF STATUTE, IN ABSENCE OF NON - ADJUDICATION OF GROUND BY THE CIT(A), ASSESSEE CAN COME ONLY BY WAY OF APPEAL BEFORE THE TRIBUNAL , NOT BY WAY OF CR OSS OBJECTIONS. IN THE PRESENT CASE, THE CIT(A) HAD NOT ADJUDICATED THE GROUNDS RELATING TO VALIDITY OF THE RE - ASSESSMENT PROCEEDINGS FOR NON - FURNISHING OF REASONS AND MERITS OF THE ADDITIONS INVOLVED. W E ITA NO. 1283/B/2014 & CO NO.142/B/2015 PAGE 23 OF 23 HOLD THAT THE CROSS OBJECTIONS ARE NOT MAINTAINABLE AND DISMISSED AS SUCH. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH AUGUST , 201 6 S D/ - S D/ - (VIJAY PAL RAO) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : BANGALORE D A T E D : 11 /0 8 /2016 SRINIVASULU, SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) - II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE