I.T.O Wd - 2(1),kolkata, Kolkata V. Peru Plastic Company Pvt Ltd., Kolkata

ITA 2132/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4732 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 24-05-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 15-07-2013
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Keywords: Period of limitation
• Section: 144

Judgement Text

1 ITA NO.2132/KOL/2013-PERU PLASTIC COMPANY PVT. LTD. A.Y.2006-07. IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] ITA NO.2132/KOL/2013 ASSESSMENT YEAR : 2006-07 I.T.O., WARD-2(1),` -VERSUS- PERU PLASTIC COMPANY PVT. LTD. KOLKATA KOLKATA (PAN:AACCP 9070 G) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SMT. RANU BISWAS, JCIT, SR.D R FOR THE RESPONDENT: NONE DATE OF HEARING : 24.05.2016. DATE OF PRONOUNCEMENT : 01.06.2016 ORDER PER N.V.VASUDEVAN, JM: THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER DATED 26.04.2013 OF CIT(A)- I, KOLKATA, RELATING TO AY 2006-07. 2. GROUNDS OF APPEAL RAISED BY THE REVENUE READ AS FOLLOWS :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , CIT(A) ERRED IN FACTS AND LAW IN HOLDING THAT ASSESSMENT WAS BARRED BY LIMITATION OF TIME ALTHOUGH THERE IS CONCLUSIVE EVIDENCE THAT ASSESSMENT ORDER WAS BEYOND CONTROL O F THE A.O. AT THE END OF 31.12.2008. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, M ODIFY & ALTER ANY GROUNDS OF APPEAL DURING COURSE OF HEARING OF THE CASE. 3. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINES S OF MAKING INVESTMENTS. FOR A.Y.2006-07 THE ASSESSEE FILED RETURN OF INCOME DEC LARING A LOSS OF RS.4,720/-. AN ORDER OF ASSESSMENT DATED 31.12.2008 WAS PASSED BY AO U/S 144 OF THE INCOME TAX ACT, 1961 (ACT) DETERMINING THE TOTAL INCOME OF THE SSESSEE AT RS.1,89,95,280/-. THIS WAS BECAUSE OF AN ADDITION OF RS.1,90,000/- MADE BY AO ON ACCOUNT UNDISCLOSED SALE PROCEEDS OF A PROPERTY TREATED AS INCOME OF THE ASS ESSEE. 2 ITA NO.2132/KOL/2013-PERU PLASTIC COMPANY PVT. LTD. A.Y.2006-07. 4. AGGRIEVED BY THE AFORESAID ORDER OF THE AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE CIT(A). ONE OF THE CONTENTIONS RAISED BY THE ASSESSEE BEFORE CIT(A) WAS THAT ORDER OF ASSESSMENT WAS IN FACT NOT PASSED BY THE A O ON 31.12.2008 AND THAT WAS THE LAST DATE BY WHICH ORDER OF ASSESSMENT COULD BE PAS SED FOR A.Y.2006-07 BY THE AO IN TERMS OF THE PROVISION OF SECTION 153 OF THE ACT. T HIS TIME LIMIT OF PASSING THE ORDER FOR A.Y.2006-07 BEING 31.12.2008 IS NOT DISPUTED BY THE REVENUE. THE PLEA OF THE ASSESSEE BEFORE CIT(A) WAS THAT THOUGH THE ORDER OF ASSESSMENT IS DATED 31.12.2008, YET IT WAS SENT FOR SERVICE ON THE ASSESSEE BY DESP ATCH BY REGISTERED POST ONLY 13.01.2009. THE SAID LETTER SENT BY THE AO WAS RE TURNED BY THE POSTAL AUTHORITIES ON 19.01.2009. THEREAFTER THE INSPECTOR SERVED A NOT ICE OF DEMAND ARISING OUT OF THE ORDER OF ASSESSMENT BY AFFIXTURE ON 23.01.2009. IT WAS THEREFORE CONTENDED BY THE ASSESSEE THAT THE AO COULD NOT HAVE PASSED THE ORDE R OF ASSESSMENT ON 31.12.2008. IN THE REMAND REPORT OF THE AO, THE FACTUAL ASPECTS O F THE CASE AS SET OUT ABOVE BY THE ASSESSEE WITH REGARD TO THE SERVICE OF THE ORDER OF ASSESSMENT AND NOTICE OF DEMAND, WERE NOT DISPUTED BY THE AO. THE ORIGINAL ENVELOPE RETURNED BY THE POSTAL AUTHORITIES WERE ALSO PERUSED BY CIT(A). THE CIT(A) FOUND THAT THE ITAT IN THE CASE OF DILIP MOHAN SETH VS ITO IN ITA NO.2110/KOL/2009 ORDER DAT ED 29.06.2012 HAD TAKEN A VIEW THAT WHERE DESPATCH OF AN ORDER OF ASSESSMENT I.E. ORDER OF ASSESSMENT GOING OUT OF THE CONTROL OF THE AO, HAPPENS AFTER THE LAST DA TE OF PERIOD OF LIMITATION FOR PASSING AN ORDER OF ASSESSMENT THEN IT HAS TO BE PRESUMED T HAT THE ORDER OF ASSESSMENT WAS PASSED ONLY AFTER THE PERIOD OF LIMITATION. FOLLOWI NG AFORESAID DECISION, THE CIT(A) HELD THAT THE ORDER OF ASSESSMENT DATED 31.12.2008 WAS IN FACT PASSED BY THE AO AFTER THE SAID DATE AND THEREFORE ORDER OF ASSESSMENT IS BARRED BY LIMITATION. THE ORDER OF ASSESSMENT WAS ACCORDINGLY ANNULLED BY CIT(A). 5. AGGRIEVED BY THE ORDER OF CIT(A) THE REVENUE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 6. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE HAVE HEARD THE SUBMISSIONS OF THE LD. DR, WHO COULD NOT CONTROVERT THE FINDINGS OF CI T(A). WE ARE OF THE VIEW THAT IN 3 ITA NO.2132/KOL/2013-PERU PLASTIC COMPANY PVT. LTD. A.Y.2006-07. THE LIGHT OF THE FINDINGS OF CIT(A) THAT THE ORDER OF ASSESSMENT AND THE NOTICE OF DEMAND LEFT THE CONTROL OF THE AO AFTER LIMITATION DATE I.E. 31.12.2008 FOR PASSING AN ORDER OF ASSESSMENT FOR THE RELEVANT ASSESSMENT YEA R, IT HAS TO BE PRESUMED THAT THE ORDER OF ASSESSMENT WAS IN FACT PASSED ONLY AFTER T HE PERIOD OF LIMITATION. IN COMING TO THE AFORESAID CONCLUSION WE ARE SUPPORTED BY THE DE CISION OF ITAT, KOLKATA BENCH IN THE CASE OF DILIP MOHAN SETH VS ITO (SUPRA). FOLLOW ING THE AFORESAID DECISION AND TAKING NOTE OF THE ADMITTED FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE VIEW THAT THE ORDER OF CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY THE APPEAL BY THE REVENUE IS DISMISSED. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS D ISMISSED. O RDER PRONOUNCED IN THE COURT ON 01.06.2016. SD/- SD/- [M.BALAGANESH ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 01.06.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1. PERU PLASTIC COMPANY PVT. LTD., 34, GANESH CHAND RA AVENUE, 4 TH FLOOR, KOLKATA- 700013. 2. I.T.O., WARD-2(1),, KOLKATA. 3. CIT(A)-I, KOLKATA 4. CIT-I, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES 4 ITA NO.2132/KOL/2013-PERU PLASTIC COMPANY PVT. LTD. A.Y.2006-07.