M/s. Naresh Construction Company, Bhopal V. The I.T.O., Bhopal

ITA 250/IND/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54059 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 27-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: YESHWANT SHARMA
• Keywords: Period of limitation; Time period of passing order
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.250/IND/2010 A.Y. 2005-06 NARESH CONSTRUCTION COMPANY BHOPAL PAN AABFM 5127D .. APPELLANT VS INCOME TAX OFFICER WARD 3(2), BHOPAL .. RESPONDENT APPELLANT BY : SHRI YESHWANT SHARMA RESPONDENT BY : SHRI ARUN DEWAN DATE OF HEARING 13.12..2011 DATE OF PRONOUNCEMENT 15.12.2011 O R D E R PER SHRI R.C. SHARMA THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOMETAX 2 (APPEALS) DATED 3.12.2009 FOR THE ASSESSMENT YEAR 2005-06 IN THE MATTER OF ORDER PASSED U/S 143(3) OF THE ACT. 2 THE GROUNDS RAISED WITH REGARD TO DISALLOWANCE U/ S 40(A)(IA) AND DISALLOWANCE OF TELEPHONE EXPENSES HA VE NOT BEEN PRESSED BY THE LEARNED COUNSEL FOR THE ASSESSEE. THE SAME ARE, THEREFORE, DISMISSED IN LI MINE. 3. THE ONLY GROUND RAISED BEFORE US PERTAINS TO LEGALITY OF THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER ON THE PLEA OF LIMITATION. THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE WAS THAT THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 2005-06 WAS REQUIRED TO PASS THE ORDER ON OR BEFORE 31.12.2007 WHEREAS IT WAS ISSUED AND COMMUNICATED T O THE ASSESSEE ON 12.1.2008 AFTER THE PERIOD OF LIMIT ATION, THEREFORE, THE SAME IS REQUIRED TO BE ANNULLED. 4. THE FACTS, IN BRIEF, ARE THAT THE ASSESSMENT ORD ER FOR THE ASSESSMENT YEAR 2005-06 WAS PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT ON 31 ST DECEMBER, 2007. THE SAID ORDER WAS SERVED UPON THE 3 ASSESSEE ON 12.1.2008, THEREFORE, THE ASSESSEE CONTENDED THAT THE ASSESSMENT ORDER WAS NOT PASSED WITHIN THE LIMITATION PERIOD WHICH EXPIRED ON 31 ST DECEMBER, 2007. THE ASSESSING OFFICER VIDE LETTER DATED 25.3.2009 HAS STATED AS UNDER :- PLEASE REFER TO YOUR OFFICE LETTER ISSUED VIDE F.NO. CIT(A)-2/BPL/DATED 3.3.2009 IN THE ABOVE SUBJECT. THE ALLEGATION OF THE ASSESSEE IS THAT THE ASSESSMENT WAS TIME BARRED DUE TO NON SERVICE OF THE ASSESSMENT ORDER. THE ALLEGATION OF THE ASSESSEE IS STRONGLY OBJECTED TO THE ASSESSMENT ORDER WAS NOT TIME BARRED AS ALLEGED. IN SUPPORT THE UNDERSIGNED ENCLOSED HEREWITH THE SPEED POST BOOKING LIST DATED 31.12.2007 WHEREIN THE NAME OF THE ASSESSEE APPEARS AT S. NO. 9 UNDER THE NARRATION OF ASSESSMENT ORDER AND DEMAND NOTICE. THIS DOCUMENT ALSO BEARS THE SEAL OF BUSINESS POST CENTRE, BHOPAL, DATED 31.12.2007. IN THE LIGHT OF THE ABOVE IT IS REQUESTED TO PLEASE DISMISS THE ALLEGATION OF THE ASSESSEE REGARDING THE ASSESSMENT GETTING TIME BARRED DUE TO NON SERVICE OF ASSESSMENT ORDER AND UPHOLD THE ASSESSMENT AS VALID. 5. BY THE IMPUGNED ORDER, THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS) DISMISSED 4 THE ASSESSEES PLEA AFTER HAVING MADE THE FOLLOWING OBSERVATIONS :- IN THE SITUATION CITED ABOVE, THE SERVICE OF THE ORDER IS MANDATORY CONTRARY TO SECTION 153(1) WHERE PASSING OF THE ORDER IS THE LEGAL REQUIREMENT. FURTHER IN THIS CONTEXT IT IS PERTINENT TO NOTE THAT THE A.O. HAS ALSO DESPATCHED THE ASSESSMENT ORDER ALONG WITH THE DEMAND NOTICE AND HANDED OVER THE SAME TO THE POSTAL AUTHORITY ON 31.12.2007 WHICH IS CLEAR FROM THE RECEIPT STAMP AFFIXED ON SPEED POST BOOKING LIST DATED 31.12.2007 IN THE NAME OF ITO-3(2), BHOPAL. MOREOVER, AS ADMITTED BY THE APPELLANT, THE ASSESSMENT ORDER WAS SERVED ON 12.01.2009. THOUGH THE SERVICE OF THE IMPUGNED ASSESSMENT ORDER PASSED U/S 143(3) IS NOT MATERIAL WITHIN THE SPECIFIED TIME, BUT EVEN THEN THE ASSESSMENT ORDER WAS PASSED ON 31 ST DECEMBER, 2007 AND WAS DESPATCHED ON THE SAME DAY WITH THE POSTAL AUTHORITIES AND DELIVERED WITHIN THE REASONABLE TIME BUT THIS FACT DOES NOT AROUSE ANY DOUBT THAT THE ASSESSMENT ORDER WAS NOT PASSED WITHIN SPECIFIED TIME AS PER SECTION 153(1). IT MAY BE MENTIONED HERE THAT THE RATIO OF DECISIONS RELIED UPON BY THE APPELLANT IS NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE AS FACT OF THESE CASES ARE DIFFERENT AND DISTINCT FROM THE FACTS OF THE INSTANT CASE. IN THE CASES REFERRED BY THE APPELLANT, THE IMPUGNED ORDER WAS SERVED AFTER A LAPSE OF CONSIDERABLE TIME. FOR INSTANT IN THE CASE OF USHODAYA ENTERPRISES LTD. VS. COMMISSIONER OF COMMERCIAL TAXES (1998) 111 STC 711 (A.P., F.B.) RELIED UPON BY THE APPELLANT THERE WAS TIME LAG OF MORE THAN EIGHT (8) MONTHS IN 5 THE PASSING OF THE ORDER AND THE SERVICE OF THE ORDER. IN THE CASE OF STATE OF ANDHRA PRADESH V. M. RAMAKISHTAIAH & CO. (1994) 27 VKN 263 (SC) THERE WAS A TIME LAG OF MORE THAN 10 MONTHS BETWEEN THE PASSING OF THE ORDER AND THE SERVICE THEREON. SIMILAR IS THE SITUATION IN OTHER CASES CITED BY HIM DURING THE APPEAL. IN VIEW OF THE ABOVE FACTS AND THE LEGAL POSITION, I AM OF THE OPINION THAT THE RELEVANT ASSESSMENT ORDER WAS PASSED WITHIN THE TIME ALLOWED AS PER SECTION 153(1) OF THE IT ACT, 1961 AND NO INTERFERENCE IS CALLED FOR FROM THE SIDE OF THE UNDERSIGNED. THIS GROUND OF THE APPELLANT IS, THEREFORE, DISMISSED. THE ASSESSEE IS NOW BEFORE US. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW AND FIND FROM RECORD THAT THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER ON 31 ST DECEMBER, 2007 WHICH WAS WELL WITHIN THE TIME LIMIT AS PROVIDED U/S 153(1) OF THE ACT. WE HAVE VERIFIE D THE SPEED POST BOOKING LIST DATED 31.12.2007 WHEREIN THE NAME OF THE ASSESSEE APPEARED AT SERIAL NO. 79 UNDER THE NARRATION OF ASSESSMENT ORDER AND DEMAND NOTICE. THIS DOCUMENT ALSO BEARS SERIAL NUMBER OF BUSINESS POST CENTRE, 6 BHOPAL, DATED 31.12.2007. THUS, IT IS CLEAR THAT EVEN THE ORDER WAS POSTED BY THE ASSESSING OFFICER ON 31.12.2007. MERE CLARIFICATION LETTER BY THE POSTAL AUTHORITY TO THE EFFECT THAT STAMP DATED 31.12.2007 WHICH APPEARED ON SPAS BOOKING LIST IS INCORRECT AS THIS HAS AGREED BY OUR PICKUP MAN THAT HE HAD PUT BACK DATES STAMP ON THE BOOKING LIST BY MISTAKE WILL NOT RENDER THE ASSESSMENT INVALID WHICH WAS NOT ONLY PASSED WELL WITHIN TIME BUT ALSO DESPATCHED TO THE ASSESSEE. THERE IS NO DISPUTE TO THE WELL SETTLED LEGAL PROPOSITION THAT UNDER THE PROVISIONS OF SECTION 153(1) THE DATE OF PASSING OF THE ORDER IS RELEVANT AND NOT THE DATE OF RECEIPT O F THE SAME BY THE ASSESSEE. SINCE THE ORDER WAS NOT ONLY PASSED ON 31 ST DECEMBER, 2007 BUT WAS ALSO PROPERLY DESPATCHED ON 31.12.2007, MERE RECEIPT OF THE ORDER BY THE ASSESSEE ON 12.1.2008 WILL NOT RENDER THE ORDER AS ILLEGAL HAVING BEEN PASSED WITHIN THE PERIOD OF LIMITATION. 7 7. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. SD SD (JOGINDER SINGH) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DECEMBER 15TH , 2011 COPY TO APPELLANT,RESPONDENT,CIT, CIT(A), DR DN/- 8