M/s. Sun Steel Industries (P) Ltd., Kolkata V. DCIT, Circle - 3(1) , Kolkata

ITA 1638/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1354 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-02-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 13-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C J SINGH JCITSRDR
• Assessee Lawyers: A K TIBREWAL
• Keywords: Difference of opinion; Change of opinion; Set aside
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.1638/KOL/2017 ASSESSMENT YEAR:2007-08 M/S SUN STEEL INDUSTRIES PVT. LTD., 22, STRAND ROAD, 1 ST FLOOR, KOLKATA-700001 [ PAN NO.AADCS 5916 M ] / V/S . DCIT, CIRCLE-3(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKAT-700069 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI A.K. TIBREWAL, FCA /BY RESPONDENT SHRI C.J. SINGH, JCIT-SR-DR /DATE OF HEARING 28-02-2019 /DATE OF PRONOUNCEMENT 15-03-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2013-14 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-2, KOLKATAS O RDER DATED 17.04.2017 PASSED IN CASE NO.919/CIT(A)-2/14-15, INVOLVING PROCEEDINGS U/S. 143(3) R.W.S. 115WE(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. I COME TO ASSESSEES FORMER LEGAL ISSUE AS PER I TS FIRST SUBSTANTIVE GROUND THAT THE ASSESSMENT ORDER DATED 23.12.2009 HAS TO BE TIM E BARRED SINCE SERVED ON 22.01.2010. THERE IS NO DISPUTE BETWEEN THE PARTIES THAT THE RELEVANT TIME LIMITATION FOR THE FRAMING OF THE IMPUGNED ASSESSMENT WAS UPTO 31.12.2009. THE PRECISE QUESTION THAT REQUIRES MY APT ADJUDICATION AS TO IT IS DATE OF THE ORDER OR THAT OF ACTUAL SERVICE OF ASSESSMENT ORDER WHICH REQUIRES TO BE TA KEN AS THE DATE OF FRAMING OF THE IMPUGNED ASSESSMENT. I NOTICE IN THIS BACKDROP THAT HON'BLE KERALA HIGH COURTS ITA NO.1638/KOL/2017 A.Y. 2007- 08 M/S SUN STEEL INDUSTRIES P. LTD. VS. DCIT, C IR-3(1), KOL. PAGE 2 DECISION IN [1995] 212 ITR 456 CIT VS. SREE NARAYANA CHANDRIKA TRUST HOLDS THAT IT IS THE DATE OF ACTUAL SERVICE AS PER HON'BLE APEX C OURTS DECISION IN B.J SHELAT VS. STATE OF GUJARAT [1978] AIR SC 1109 (SC) THAT HAS TO BE TAKEN AS TH E DATE OF THE ORDER IN ISSUE. THEIR LORDSHIPS DETAILED DISCUSSION TO THIS EFFECT READS AS UNDER:- WE SHALL NOW DEAL WITH THE OTHER REFERENCES AND APPLICATIONS UNDER SECTION 256(2) WHICH HAVE BEEN HEARD ALONG WITH THESE REFER ENCES. THE QUESTIONS REFERRED FOR THE YEAR 1978-79 ARE SIMILAR, EXCEPT T HAT ONE FURTHER QUESTION HAS BEEN REFERRED AT THE INSTANCE OF THE ASSESSEE, NAME LY, WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE APPELLATE TRIBUNAL WAS RIGHT IN HOLDING THAT THE ORDER OF THE COMMISSIONER OF INCOM E-TAX PASSED UNDER SECTION 263 IS NOT BARRED BY LIMITATION. . WE SHALL DEAL WITH THIS QUESTION WHICH ARISES IN INCOME-TAX REFERENCES NOS. 81 AND 8 2 OF 1986 RELATING TO THIS YEAR. THE INCOME-TAX OFFICER MADE AN ORDER ON JANUARY 12, 1981, HOLDING THAT INCOME ACCRUING TO THE ASSESSEE-TRUST FROM THE FIRM S OF WHICH IT WAS A PARTNER WAS EXEMPT UNDER SECTION 10(22A), AS INCOME ACCRUIN G TO THE HOSPITAL, DEVIATING FROM THE STAND TAKEN BY HIM EARLIER. THE COMMISSIONER OF INCOME-TAX TOOK UP THE MATTER IN REVISION UNDER SECTION 263 AN D SET ASIDE THE ORDER OF ASSESSMENT. THE REVISIONAL ORDER WAS PASSED ON JANU ARY, 11, 1983, AND COMMUNICATED WITHIN A PERIOD OF SIX DAYS THEREAFTER . THE QUESTION WAS WHETHER THE EXERCISE OF THE REVISIONAL POWER WAS BARRED BY TIME. THE TRIBUNAL HELD OTHERWISE AND SUSTAINED THE ORDER. IT IS IN THESE C IRCUMSTANCES THAT THE ADDITIONAL QUESTION HAS BEEN REFERRED. SUB-SECTION (2) OF SECTION 263 AS IT STOOD AT THE R ELEVANT TIME, PRESCRIBED THAT NO ORDER SHALL BE MADE UNDER SUB-SECTION (1) OF THE SECTION AFTER THE EXPIRY OF TWO YEARS FROM THE DATE OF THE ORDER SOUGHT TO BE R EVISED. THE TRIBUNAL WAS OF THE VIEW THAT THE COMMISSIONER HAD PASSED HIS ORDER WITHIN THE TIME PRESCRIBED, THOUGH IT WAS COMMUNICATED LATER. THE QUESTION AS TO WHEN AN ORDER CAN BE STATED TO H AVE BEEN MADE WAS THE SUBJECT OF CONSIDERATION BY THIS COURT IN GOVERNMEN T WOOD WORKSHOP V. STATE OF KERALA [1988] 69 STC 62; [1987] 1 KLT 804 IN WHI CH THIS COURT STATED, AFTER RELYING ON VARIOUS DECISIONS OF THE SUPREME COURT C ULMINATING IN B.J. SHELAT V. STATE OF GUJARAT, AIR 1978 SC 1109, AS FOLLOWS ( AT PAGE 69 ) THE ORDER OF ANY AUTHORITY CANNOT BE SAID TO BE PA SSED UNLESS IT IS IN SOME WAY PRONOUNCED OR PUBLISHED OR THE PARTY AFFEC TED HAS THE MEANS OF KNOWING IT. IT IS NOT ENOUGH IF THE ORDER IS MAD E, SIGNED, AND KEPT IN THE FILE, BECAUSE SUCH ORDER MAY BE LIABLE TO CHANG E AT THE HANDS OF THE AUTHORITY WHO MAY MODIFY IT, OR EVEN DESTROY IT, BE FORE IT IS MADE KNOWN, BASED ON SUBSEQUENT INFORMATION, THINKING OR CHANGE OF OPINION. TO MAKE THE ORDER COMPLETE AND EFFECTIVE, IT SHOULD BE ISSUED, SO AS TO BE BEYOND THE CONTROL OF THE AUTHORITY CONCERN, FOR ANY POSSIBLE CHANGE OR MODIFICATION THEREIN. THIS SHOULD BE DONE WITHIN THE PRESCRIBED PERIOD, THOUGH THE ACTUAL SERVICE OF THE ORDER MAY BE BEYOND THAT PERIOD. ITA NO.1638/KOL/2017 A.Y. 2007- 08 M/S SUN STEEL INDUSTRIES P. LTD. VS. DCIT, C IR-3(1), KOL. PAGE 3 THIS TRIBUNAL HAS NOT REFERRED TO THIS DECISION THO UGH IT IS RELEVANT. WE FEEL THAT THE MATTER HAS NOT BEEN CONSIDERED BY THE TRIB UNAL IN THE MANNER IN WHICH IT SHOULD HAVE BEEN, PARTICULARLY AFTER ADVERTENCE TO THE AFORESAID DECISION. WE, THEREFORE, DECLINE TO ANSWER THE ADDITIONAL QUESTIO N REFERRED AT THE INSTANCE OF THE ASSESSEE IN INCOME-TAX REFERENCES NOS. 81 AND 8 2 OF 1986. I ADOPT THE ABOVE DETAILED DISCUSSION MUTATIS MUTANDIS TO HOLD THAT THE IMPUGNED ASSESSMENT HAS TO BE TREATED AS TIME BARRED SINCE A SSESSEE COULD BE SERVED A COPY OF THE ASSESSMENT ORDER ON 22.01.2010. I ACCORDINGLY Q UASH THE IMPUGNED ASSESSMENT ON THIS COUNT ALONE. 3. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 15/03/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS - 15/03/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S SUN STEEL INDUSTRIES PVT. LTD., 22, STRAND ROAD, 1 ST FLOOR, KOLKAT-700001 2. /RESPONDENT-DCIT, CIRC-3(1), AAYAKAR BHAWAN, P-7, C HOWRINGHEE SQUARE, KOLKAT A-69 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ',