ACIT, Mirzapur V. M/S J.P.YADAVA, Sonebhadra

ITA 262/ALLD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63333 (ITAT-ALLAHABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-10-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 08-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P SRIVASTA VA
• Assessee Lawyers: ARVIND SHUKLA; O P SHUKLA
• Keywords: Principle of natural justice; Period of limitation; Assessment record; Time period of passing order; Revised return
• Section: 143(3); 153A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 262/ALLD./2010 ASSTT. YEAR : 2006-07 A.C.I.T., RANGE-III, VS. M/S. J.P. YADAV, MIRZAPUR. VIP ROAD, OBRA, SONEBHADRA. (PAN: AAHFM 7714 J) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI Y.P. SRIVASTAVA, D.R. RESPONDENT BY : S/SRI ARVIND SHUKLA & O.P. SHUKLA, ADV. DATE OF HEARING : 30.10.2012 DATE OF PRONOUNCEMENT OF ORDER : 02 .11.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), ALLAHABAD DATED 17.05.2010 FOR THE ASSESSMENT YEAR 2006-07, CHALLENGING THE ORDER OF LD. CIT(A) IN ANNULLING THE ASSESSMENT ORDER BEI NG INVALID. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IS ENGAGED IN EXECUTION OF VARIOUS CONTRACTS AND SUB-CONTRACT WORK AWARDED BY THE GOVERNMENT DEPARTMENT FROM TIME TO TIME. THE RETURN OF INCOME SHOWING TOT AL INCOME OF RS.7,24,930/- WAS FILED BY THE ASSESSEE WHICH WAS SUBJECTED TO SCRUTI NY AND THE ASSESSMENT ORDER WAS PASSED ON 29.12.2008 U/S. 143(3) OF THE IT ACT. THE ASSESSEE CHALLENGED THE ITA NO. 262/ALLD./2010 2 VALIDITY OF THE ASSESSMENT ORDER AS WELL AS THE ADD ITIONS ON MERITS BEFORE THE LD. CIT(A) ON VARIOUS GROUNDS. ONE OF THE GROUNDS RAISE D BEFORE THE LD. CIT(A) WAS THAT THE ASSESSING OFFICER PASSED THE ASSESSMENT OR DER WHICH IS BARRED BY LIMITATION BECAUSE THE ASSESSMENT ORDER WAS SERVED LATER ON AND WAS NOT IN ACCORDANCE WITH THE TIME LIMIT PROVIDED U/S. 153 OF THE IT ACT. THE ASSESSEE RELIED UPON THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF MAHINDRA J. THAKKAR & CO. VS. CIT, 139 ITR 793. IT WAS ALSO SUB MITTED THAT HE ASSESSMENT ORDER WAS SERVED UPON THE ASSESSEE ON 12.01.2009, W OULD MEAN THAT NO ASSESSMENT ORDER WAS PASSED WITHIN THE PERIOD OF LIMITATION AS PRESCRIBED IN THE ACT. THE WRITTEN SUBMISSIONS OF THE ASSESSEE ARE INCORPORATE D IN THE IMPUGNED ORDER. THE LD. CIT(A) CONSIDERING THE ABOVE SUBMISSIONS OF THE ASS ESSEE AND AFTER PERUSAL OF THE ASSESSMENT RECORD FOUND THAT THE ISSUE RAISED BY TH E ASSESSEE IS LEGAL AND JUSTIFIED AND ACCORDINGLY ANNULLED THE ASSESSMENT ORDER HOLDI NG IT TO BE INVALID BEING TIME BARRED. THE APPEAL OF THE ASSESSEE WAS, ACCORDINGLY , ALLOWED WITHOUT DECIDING OTHER GROUNDS ON MERITS. THE FINDINGS OF THE LD. CI T(A) IN PARAS 6 TO 19 ARE REPRODUCED AS UNDER : 6. DURING THE COURSE OF FURTHER HEARING, SHRI SHUK LA REITERATED THAT PASSING OF ORDER U/S 143(3), WITHIN TIME LIMIT STIPULATED UNDER SECTION 153 OF THE IT ACT IS A STATUTORY INCUMBENT ON THE AO, THEREFORE, ANY FREE PLAY OR VIOLATION WITH THE SAID TIME LIMIT IS NOT ONLY AGAINST THE PRINCIPLE OF NATURAL JUSTICE BUT ALSO V ITIATES THE ENTIRE ASSESSMENT PROCEEDINGS AND RENDERS THE ASSESSMENT I NVALID AND ILLEGAL. HE FURTHER PRAYED THAT PROCEEDINGS U/S. 14 3(3) OF THE IT ACT ARE QUASI-JUDICIAL IN NATURE AND IF SUCH REQUISITE ORDER IS NOT PASSED WITHIN STATUTORY TIME LIMIT, THERE WOULD BE A NECES SARY BREACH OF THE ITA NO. 262/ALLD./2010 3 PRINCIPLE OF NATURAL JUSTICE WITH THE CONSEQUENCE T HAT ANY ORDER SO MADE BEYOND THE SET STATUTORY LIMIT IS LIABLE TO BE QUASHED. ACCORDINGLY, ASSESSMENT ORDER DESERVES TO BE QUASHE D. HE, THEREFORE, SUBMITTED THAT SINCE THE ISSUE OF VALIDITY OF ASSES SMENT ORDER BEARS FUNDAMENTAL IMPORTANCE, DESERVES TO BE FIRST DECIDE D BEFORE CONSIDERING TO TAKE UP THE OTHER GROUNDS OF APPEALS FOR ADJUDICATION. 7. CONSIDERING THE FACT THAT NON PASSING OF ASSESS MENT ORDER WITHIN TIME LIMIT SET BY SECTION 153 OF THE IT ACT IS A PURE LEGAL ISSUE, HITTING AT THE ROOT OF THE CASE, THE OTHER GROUNDS OF APPEAL RAISED BY THE ASSESSEE WITH APPEAL MEMO ARE NOT BEING SPELT O UT IN DETAIL. 8. INITIALLY, IT WAS INTENDED TO HAVE A REPORT U/S . 250(4) OF THE IT ACT FROM THE A.O. ON THIS SPECIFIC LEGAL ISSUE, BU T IT WAS REQUESTED BY THE COUNSEL THAT SINCE ISSUE INVOLVED PURELY RELATE S TO THE FACTS AVAILABLE ON RECORD, HENCE TO AVOID ANY AMBIGUITY O R FABRICATION, IT WOULD BE PROPER TO FIRST CALL FOR CASE RECORD FOR P HYSICAL VERIFICATION AND, IF IT IS LATER ON REQUIRED EXPEDIENT, THE SAID REPORT CAN BE OBTAINED ANY TIME BEFORE FINALIZATION OF THE APPEL LATE PROCEEDINGS. THE REQUEST OF THE ASSESSEE WAS ACQUIESCED OF SINCE NO PRIMA FACIE MALA FIDE WAS FOUND ON THE PART OF THE ASSESSEE. TH EREFORE, CASE RECORD WAS CALLED FOR AND LOOKED THROUGH THE SEQUEN CE OF EVENTS. HOWEVER, A COPY OF APPEAL MEMO WITH STATEMENT OF FA CTS AND GROUNDS OF APPEAL WAS PROVIDED TO THE A.O. 9. ON CAREFUL VERIFICATION OF THE ASSESSMENT RECOR D, IT IS NOTICED THAT ON THE PREFACING PORTION OF THE ASSESSMENT ORD ER, THE DATE OF ORDER IS MENTIONED AS 29.12.2008. ON THE BACK OF THE NOTICE OF DEMAND, THE ACKNOWLEDGEMENT SLIP BEARING DATED OF R ECEIPT AS ON 12.01.2009 HAS BEEN PASTED. NOT A SINGLE EVIDENC E IN THE SHAPE OF DOCUMENTARY EVIDENCE TO THE EFFECT THAT HE IMPUGNED ORDER ALONGWITH NOTICES OF DEMAND HAVE BEEN RELEASED OR FLOWED FROM THE RECORD/OFFICE ON OR BEFORE 31.12.2008 FOR SERVICE THROUGH ANY PRE VALENT LEGAL MODE OF SERVICE. ON THE OTHER HAND, IN THE ORDER SHEET, THERE IS ENTRY DATED 29.12.2009 TO THE EFFECT THAT IMPUGNED ORDER HAS BE EN PASSED, HOWEVER, THERE IS NO ENTRY TO SHOW THAT ON WHICH DA TE ORDER HAS BEEN SERVED OR DISPATCHED. THE NEXT ENTRY OF THE ORDER S HEET BEARS THE DATE 23.06.2009, WHICH REFLECTS A BIG SUSPICIOUS INTERRE GNUM OF ABOUT MORE THAN FIVE MONTHS BETWEEN TWO ENTRIES. THEREFOR E, IT IS ESTABLISHED THAT THERE IS NO RELIABLE EVIDENCE ON RECORD TO PRO VE THAT AT WHICH ITA NO. 262/ALLD./2010 4 DATE THE IMPUGNED ORDER HAS BEEN PASSED BETWEEN 29. 12.2008 AND 12.01.2009 OR ANY BACK DATING HAS NOT BEEN DONE IN THIS CASE. 10. IN VIEW OF ABOVE FACTUAL POSITION, THERE APPEA RS PRIMA FACIE SUFFICIENCY IN THE ASSESSEES SUBMISSIONS, THEREFOR E, ITS GROUNDS, TO THIS LIMITED EXTENT, CHALLENGING THE LEGALITY OF TH E IMPUGNED ORDER DESERVES TO BE ADJUDICATED. 11. TO COPE WITH THE ISSUE RATIONALLY AND LOGICALL Y, IT IS PERTINENT TO READ THE DEALING PROVISIONS OF SECTION 153, WORD TO WORD TO JUDGE THE NECESSITY OF LITERAL AND/OR LEGAL INTE RPRETATION, HENCE THE SAME IS REPRODUCED AS UNDER :- TIME LIMIT FOR COMPLETION OF ASSESSMENTS AND REASS ESSMENTS. 153 [(1) NO ORDER OF ASSESSMENT SHALL BE MADE UNDER SEC TION 143(3) OR SECTION 144 AT ANY TIME AFTER THE EXPIRY OF (A) TWO YEARS FROM THE END OF THE ASSESSMENT YEAR IN WHICH THE INCOME WAS FIRST ASSESSABLE; OR (B) ONE YEAR FROM THE END F THE FINANCIAL YEAR IN WHICH A RETURN OR A REVISED RETURN RELATING TO THE ASSESSMENT YEAR COMM ENCING ON THE FIRST DAY OF APRIL, 1988, OR ANY EARLIER ASSESSMENT YEAR, IS FILED UNDER SUB SECTION (4) OR SUB SECTION (5) OF SECTION 139, WHICHEVER IS LATER]. [ PROVIDED THAT IN THE ASSESSMENT YEAR IN WHICH THE INCOME WAS FIRST ASSESSABLE IS THE ASSESSMENT YEAR COMMENCING ON THE 1 ST DAY OF APRIL, 2004 OR ANY SUBSEQUENT ASSESSMENT YEAR, THE PROVISION OF CLAUSE (A) SHALL HAVE EFFECT AS IF FOR THE WORDS T WO YEARS, THE WORDS TWENTY ONE MONTHS HAD BEEN SUBSTITUTED] 12. AS PER THE PROVISIONS OF SECTION 153 OF THE IT ACT, THE IMPUGNED ORDER OF ASSESSMENT UNDER APPEAL WAS TO BE MADE ON OR BEFORE 31 ST DEC., 2008. THE LITERAL CONNOTATION OF THE DELINEA TION NO ORDER OF ASSESSMENT SHALL BE MADE, IS, IF THE SENS E MAKES OUT FROM PERIPHERAL OR TRITE INTERPRETATION OF THE ABOVE DEL INEATION NO ORDER OF ASSESSMENT SHALL BE SIGNED, WHICH SIMPLY SUPPOR TS THE AOS STAND IN THE INSTANT CASE, SINCE ORDER UNDER APPEAL, PURP ORTED TO HAVE BEEN SIGNED, BUT DELIVERED TO THE ASSESSEES COUNSEL ON 12.01.2009. HOWEVER, THE TERM NO USED IN THAT SECTION IBID, S IMULTANEOUSLY CONVEYS THAT THERE MUST BE SOME TANGIBLE EVIDENCE W ITH THE ASSESSING OFFICER TO AVOID A SITUATION WHICH GIVES RISE TO TH E EXPRESSION THAT NO ORDER OF ASSESSMENT HAS BEEN MADE WITHIN TIME STIPULATED IN SECTION 153 OF THE IT ACT. THE CONTEXTUAL NO BEFO RE THE TERM ITA NO. 262/ALLD./2010 5 ORDER MUST BE READ AS STRICT PRESCRIPTION OF LAW WHICH SQUARELY IMPOSES THE ONUS UPON THE ASSESSING OFFICER TO PROV E THAT NO ORDER HAS ACTUALLY BEEN MADE AFTER THE DATE OF LIMITATION . IT IS IPSO FACTO UNDISPUTED THAT WHILE DISCHARGING THE STATUTORY DUT Y AS AN ASSESSING OFFICER, THE A.O. HAS TO PLAY A DUAL ROLE OF JUDGE AND PROSECUTOR, BUT IT DOESNT MEAN THAT ACT ALLOWS CARTE BLANCHE TO OV ERRIDE THE STATUTORY LIMIT FOR COMPLETION OF ASSESSMENT AS SET BY THE AC T ITSELF. 13. SO FAR AS THE LIMB OF SECTION 153 OF THE IT AC T, ON THE ISSUE OF COMMUNICATION OR RELEASE OF IMPUGNED ORDER, IT I S SILENT. IT IS ALSO SILENT ON THE QUESTION THAT WHETHER CAN ANY ORDER B E RELEASED FOR THE FIRST TIME AFTER THE DATE OF LIMITATION ? TO MY MIN D, THE PRIME DISPUTE WHICH HAS TO BE RESOLVED IS AT WHAT POINT OF TIME O RDER OUGHT TO BE COMMUNICATED OR RELEASED, SINCE THERE IS NOTHING IN EXPRESS TERMS IN THE PROVISION, WHEREFROM THE ASSESSEE MAY CLAIM IT TO HAVE AS OF LEGAL RIGHT. THE SILENCE OF LAW ON HIS SPECIFIC ISSUE IS QUITE DARK, WHICH MAY LAND ANYONE IN A SITUATION FOR MAKING A ROVING AND FISHING SEARCH TO FIND OUT ACTUAL VALID DATE OF RELEASE OF ORDER. THE ABOVE LOGICAL AND RATIONAL VACUUM ON THIS SPECIFIC ISSUE RAISES AN OC CASION, WHEREIN THE AUTHORITIES HAVING JURISDICTION TO INTERVENE THE MA TTER ARE REQUIRED TO FILL THE GAP AND MAKE THE PROVISION MEANINGFUL AND PURPOSIVE WITHOUT DOING ANY VIOLENCE WITH THE PITH AND SUBSTANCE OF T HE PROVISION AND OBJECT AND INTENT ITS ENACTMENT. IN MY FURTHER VIEW , WHERE THE INTENTION OF THE ACT IS NOT CLEAR FROM THE WORDS OR WHERE MORE THAN ONE CONSTRUCTION IS POSSIBLE, IT IS THE STATUTORY D UTY OF THE INTERVENING AUTHORITY TO DISCERN THE INTENTION IN THE CONTEXT O F THE BACKGROUND IN WHICH A PARTICULAR SECTION OR PROVISION IS ENACTED. IT IS THE FURTHER DUTY OF THE INTERVENING AUTHORITY TO GIVE SUCH A CO NSTRUCTION TO A STATUTE AS WOULD NOT ONLY CONFORM THE RULE OF NATUR AL JUSTICE BUT ALSO PROMOTE THE PURPOSE AND OBJECT OF THE ACT. 15. IN VIEW OF ABOVE DISCUSSIONS AND ALSO LOOKING TO THE FACT THAT EXTERNAL MANIFESTATION OF THE PURPOSE OF SECTI ON 153 OR LITERAL INTERPRETATION OF SECTION 153 ON THIS ISSUE ONLY CO NNOTES TO SIGN THE IMPUGNED ORDER WITHIN STATUTORY TIME LIMIT, IT IS T HE PRIME ISSUE TO FIND OUT WHAT PURPOSE OR OBJECT SHALL BE ACHIEVED, IF TH E ORDER DOES NOT RELEASE FROM THE OFFICE ON OR BEFORE THE DATE OF LI MITATION ? OR WHETHER THE INTENT OR OBJECT OF THE ACT SHALL BE FULLY OR B ETTER SERVED, IF THE ORDER IS FLOWED OR RELEASED FROM THE BIRTH PLACE WI THIN THE STATUTORY TIME LIMIT AS PROVIDED U/S. 153 OF THE ACT ? IN MY VIEW, THE ACT HAS AN SPECIFIC AIM. IT SEEKS TO OBVIATE SOME MISCHIEF TO SUPPLY INADEQUACY. ITA NO. 262/ALLD./2010 6 ITS UTMOST INTENTION IS TO AVOID ABUSE OF THE POWER /OFFICE TO SAVE THE ASSESSEE FROM HARASSMENT. 16. WITH THE ABOVE OBSERVATION, IT IS CLEAR THAT L ITERAL INTERPRETATION OF SECTION 153 IS NOT CAPABLE TO MAK E THE PROVISION MEANINGFUL AND PURPOSIVE AND LEGAL INFERENCE OF THE PROVISION EXPRESSLY REQUIRES PRONOUNCEMENT OF ORDER BY WAY OF ANY LEGAL MODE OF SERVICE WITHIN TIME STIPULATED UNDER THE PROVISI ONS OF SECTION 153 OF THE IT ACT AND IF, IN ANY SITUATION, IT IS NOT DONE , THE PURPOSE OF SECTION WOULD BE SEVERELY DEFEATED. MY ABOVE OBSERVATION FI NDS SUPPORT FROM THE JUDGMENT OF CALCUTTA HIGH COURT REPORTED IN 139 ITR 793 IN THE CASE OF MAHENDRA J. THACKER & CO. VS. COMMISSIONER OF INCOME TAX (1983), IN WHICH THE HONBLE COURT HAS HELD THAT :- HELD, ON THE FACTS, THAT THERE WAS NO EVIDENCE OF ANY NOTICE OF DEMAND HAVING BEEN SENT BY MARCH 27, 1969. NO COPY OF SAID NOTICE WAS ON RECORD NOR WAS THERE ANY EVIDENCE OF ITS DIS PATCH IN THE FORM OF AN ACKNOWLEDGEMENT RECEIPTS FROM THE RECIPIENT O R A RECEIPTS FROM THE POSTAL AUTHORITIES. APART FROM THE SO CALLED DA TE APPEARING ON THE RECORD OF THE I.T.O., THERE WAS NO INDICATION THAT THE ORDER IN QUESTION WAS PASSED BEFORE 31 ST MARCH 1969. THERE WAS NO EXPLANATION AS TO WHY THE DUPLICATE COPY OF A LETTER DATED 27.03.1969 BORE THE DATE MAY 30, 1969. IT DID NOT APPEAR FROM THE ORDER OF THE T RIBUNAL THAT THE COPY AVAILABLE WHICH WAS EXAMINED BY THE TRIBUNAL INDICA TE THAT IT WAS A DUPLICATE COPY OF ANY LETTER. ON THE FACTS AS FOUND BY THE TRIBUNAL THE CONCLUSION ARRIVED AT BY IT WAS BASED ON NO MATERIA L AND AS SUCH WAS PERVERSE IN LAW. THE ASSESSMENT ORDER WAS THEREFORE , BARRED BY LIMITATION. 17. IN VIEW OF ABOVE DISCUSSION & DECISION, IT CAN BE HELD THAT POWER TO ASSESS IS LOST BY EXPIRY OF LIMITATION AND THAT, IN THIS SITUATION, THE AO CANNOT ASSUME JURISDICTION TO REL EASE AN ASSESSMENT ORDER FOR THE FIRST TIME, IF NOT RELEASED WITHIN TI ME STIPULATED U/S. 153 OF THE ACT. THE REQUIREMENT TO RELEASE THE ASSESSME NT ORDER U/S. 143(3) WITHIN STATUTORY TIME LIMIT IS A MANDATORY P ROVISION AND NOT MERELY PROCEDURAL IN NATURE. GIVING THIS SUBSISTING SCENARIO TO THE PRESENT CASE, SPECIFICALLY AS DISCUSSED IN PARA-9 A BOVE, THE A.O.S OMISSION OR FAILURE TO RELEASE THE IMPUGNED ASSESSM ENT ORDER U/S. 143(3) WITHIN THE TIME LIMIT SET BY SECTION 153 OF THE IT ACT NOT ONLY VINDICATES THE ASSESSEES FOUNDS CHALLENGING THE LE GALITY OF THE ORDER BUT ALSO IS A FATALITY HAVING A KILLING EFFECT ON T HE ASSESSMENT ORDER, WHICH FURTHER RENDERS THE ASSESSMENT ORDER AS ILLEG AL. ITA NO. 262/ALLD./2010 7 18. ALL CONSIDERED, RESPECTFULLY FOLLOWING THE WEL L SETTLED LEGAL POSITION, THE ASSESSMENT ORDER UNDER APPEAL SUFFERS FROM AN INCURABLE INFIRMITY AND IS, THEREFORE, LAWFULLY UNSUSTAINABLE . THE SAME IS ACCORDINGLY ANNULLED BEING INVALID. 19. SINCE THE ASSESSMENT ORDER STANDS ANNULLED, IT DOES NOT APPEAR NECESSARY TO ADJUDICATE ON THE OTHER GROUNDS OF APPEAL WHICH ARE TREATED AS DISPOSED OFF. IN THE RESULT, THE APPEAL IS ALLOWED. 3. THE LD. DR RELIED UPON THE ORDER OF THE ASSESSIN G OFFICER AND SUBMITTED THAT THE ASSESSMENT ORDER WAS PASSED WITHIN THE PERIOD O F LIMITATION ON 29.12.2008. ON 01.06.2012, THE LD. DR FILED COPY OF DCR IN SUPPORT OF HIS CONTENTION THAT THE ASSESSMENT ORDER WAS PASSED ON 29.12.2008. THE LD. DR RELIED UPON THE FOLLOWING DECISIONS : (I). DECISION OF GAUHATI HIGH COURT IN THE CASE OF RAMANAND AGARWALLA VS. CIT, 151 ITR 216. (II). DECISION OF CALCUTTA HIGH COURT IN THE CASE O F BADRI PROSAD BAJORIA VS. CIT, 64 ITR 362 (III). DECISION OF CALCUTTA HIGH COURT IN THE CASE OF CIT VS. KAILASHO DEVI BURMAN, 115 ITR 732. 4. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THA T THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF MAHINDRA J. THAKKAR & CO. (SUPRA) WHICH IS DIRECTLY ON THE ISSUE. HE HAS FURTHER SUBMITTED THAT ITAT, ALLAHABAD BENCH IN THE GROUP C ASES OF ACIT VS. SINCERE ITA NO. 262/ALLD./2010 8 CONSTRUCTION IN ITA NO. 263/ALLD/2010 ETC. VIDE ORD ER DATED 18.05.2011, FOLLOWING THE ABOVE DECISION OF HONBLE CALCUTTA HI GH COURT, DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THEREFORE, THE ISSUE IS COV ERED BY THE ORDER OF ITAT, ALLAHABAD BENCH ALSO, IN WHICH ALSO THE DATE OF SER VICE OF THE ORDER WAS LATER ON. IN THAT CASE, THE ORDER WAS SERVED ON 12 TH JANUARY, 2009, WHICH WAS HELD TO BE BARRED BY LIMITATION, THOUGH BOTH THE ORDERS WERE S IGNED AND ENTERED ON THE DCR BUT NO EVIDENCE WAS ON RECORD TO PROVE THAT, THE OR DER PASSED BY THE ASSESSING OFFICER WAS ENTERED IN DISPATCH REGISTER, ARE DISPA TCHED BY WAY OF ACKNOWLEDGEMENT RECEIPTS FROM THE RECIPIENT OR A RE CEIPT OF POSTAL AUTHORITIES. COPY OF THE TRIBUNAL ORDER IS ALSO FILED IN THE PAP ER BOOK. VIDE ORDER SHEET DATED 01.06.2012, THE LD. COUNSEL FOR THE ASSESSEE ALSO F ILED COPY OF DISPATCH REGISTER OF THE ASSESSING OFFICER DURING THE PERIOD BETWEEN 19. 12.2008 AND 04.01.2009 TO SHOW THAT THE IMPUGNED ASSESSMENT ORDER WAS NEVER D ISPATCHED BEFORE 05.01.2009. THEREFORE, IT WAS NOT PASSED WITHIN THE STATUTORY P ERIOD. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD AS NOTED ABOVE. THE LD. CIT(A) AFTER PERUSAL OF ASSESSMENT RECORD, GAVE SPECIFIC FINDING AGAINST THE REVENUE HOLDING THAT T HE ASSESSMENT ORDER IS PASSED BEYOND THE PERIOD OF LIMITATION. THE LD. CIT(A) FOL LOWED THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF MAHINDRA J. THAK KAR & CO. (SUPRA) WHICH IS DIRECTLY ON THE MATTER IN ISSUE IN FAVOUR OF THE AS SESSEE. THE SAME DECISION IS ITA NO. 262/ALLD./2010 9 FOLLOWED BY ITAT, ALLAHABAD BENCH SUBSEQUENTLY IN T HE GROUP CASES OF M/S. SINCERE CONSTRUCTION (SUPRA), IN WHICH THE TRIBUNAL IN PARA 11 TO 14 HELD AS UNDER : 11. FROM THE READING OF SECTIONS 153B AND 156 OF T HE ACT AND THE ORDER OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF MAHENDRA J. THACKER & CO. VS. CIT(SUPRA) HEREINABOVE, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER SHOULD MAKE AN ORDER OF ASSES SMENT AS PROVIDED UNDER SECTION 153B OF THE ACT, WHICH IN THE PRESENT CASE IS 31.12.2008. THE DEPARTMENT HAS TO PROVE THAT THE OR DER HAS BEEN MADE ON OR BEFORE 31.12.2008. NEITHER BEFORE THE LD . CIT(A) NOR BEFORE US, IT HAS BEEN PROVED THAT THE ORDER UNDER SECTION 153A OF THE ACT HAS BEEN MADE AS PER THE LIMITS PRESCRIBED UNDE R SECTION 153B OF THE ACT, I.E. BEFORE 31.12.2008 IN THE PRESENT CASE . IN SPITE OF SPECIFIC QUESTION ASKED FROM THE LD. DR, NO ASSESSMENT RECOR D OR ANY OTHER DOCUMENTARY EVIDENCE IN SUPPORT OF THEIR GROUND HAS BEEN PRODUCED BEFORE US DURING THE COURSE OF HEARING. THE ACKNOWL EDGEMENT SLIP PASTED AT THE BACK OF THE NOTICE OF DEMAND BORE THE DATE RECEIPT AS 12.1.2009 AND THIS FACT HAS NOT BEEN CONTROVERTED B Y THE LD. D.R. THEREFORE, IN THE CIRCUMSTANCES AND FACTS OF THE CA SE, WE FIND NOTHING ON RECORD THAT THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT UNDER SECTION 153A OF THE ACT AS PER TIME LIMITS PR OVIDED UNDER SECTION 153B OF THE ACT AND THEREFORE, THE POWER TO MAKE ASSESSMENT BY THE ASSESSING OFFICER AFTER EXPIRY OF LIMITATION PERIOD AS PROVIDED UNDER SECTION 153B OF THE ACT HAS BEEN LOST AND NO ASSESSMENT CAN BE MADE AND THE ASSESSMENT SO MADE HAS, THEREFORE, RIG HTLY BEEN ANNULLED BY THE LD. CIT(A) VIDE PARAS 17 TO 19 OF H IS ORDER THEREFORE, WE FIND NO INFIRMITY IN HIS ORDER. 12. AS REGARDS OTHER FIVE APPEALS, THE FACTS IN TH E FIVE OTHER REVENUES APPEALS ARE IDENTICAL EXCEPT THE DATE OF ASSESSMENT ORDER AND SERVICE OF ACKNOWLEDGEMENT WHICH ARE AS UNDER : S. NO. ITA NO. ASSESSMENT YEAR DATE OF PASSING ORDER BY THE ASSESSING OFFICER DATE OF SERVICE OF ORDER 1 264/ALLD/2010 2007-08 24.12.2009 11.1.2010 2 265/ALLD/2010 2007-08 24.12.2009 11.1.2010 3 266/ALLD/2010 2006-07 29.12.2009 12.1.2010 ITA NO. 262/ALLD./2010 10 4 267/ALLD/2010 2007-08 30.12.2009 11.1.2010 5 268/ALLD/2010 2007-08 30.12.2009 11.1.2010 13. SINCE THE FACTS IN THE ABOVE FIVE APPEALS OF TH E REVENUE MENTIONED HEREINABOVE ARE IDENTICAL TO THE FACTS IN THE REVENUES APPEAL IN ITA NO. 263/ALLD/2010 DECIDED BY US HEREI NABOVE, FOLLOWING THE SAME, WE DISMISS THE GROUNDS OF THE R EVENUE IN ALL THE ABOVE FIVE APPEALS ALSO. 14. IN THE RESULT, REVENUES APPEAL IN ITA NOS. 26 3, 264, 265, 266, 267 AND 268/ALLD/2010 ARE DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 18.05.201 1. 5.1 WE, THEREFORE, FIND THAT THE ISSUE IS COVERED I N FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT AS WELL AS THE ORDER OF THE TRIBUNAL. HOWEVER, THE LD. DR RELIED UPON THE DECISION IN THE CASE OF RAMANAND AGARWALLA VS. CIT(SUPRA), IN WHICH THE ASSESSMENT ORDER WAS P ASSED ON 16.03.1968, WHICH WAS FOLLOWED BY THE NOTICE OF DEMAND DATED 20.03.19 68, WHICH WAS ISSUED BY THE OFFICE OF THE ITO ON 30.03.1968. THEREFORE, IT WAS NOT IN DISPUTE THAT THE DEMAND NOTICE WAS ISSUED ON 30.03.1968. THEREFORE, THE ASS ESSMENT ORDER WAS HELD TO BE PASSED WITHIN THE PERIOD OF LIMITATION AND NO SUBST ANCE WAS FOUND THAT THE DEMAND NOTICE ALSO SHOULD BE ISSUED WITHIN THE PERIOD OF F OUR YEARS FROM THE END OF THE ASSESSMENT YEAR IN QUESTION. THE ABOVE DECISION IS, THEREFORE CLEARLY DISTINGUISHABLE ON FACTS OF THE PRESENT CASE. THE D ECISIONS OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF BADRI PROSAD BAJORIA (SUP RA) AND CIT VS. KAILASHO DEVI BURMAN (SUPRA) HAVE BEEN DELIVERED ON 07.03.1965 AN D 14.07.1977, I.E., MUCH BEFORE THE JUDGMENT PRONOUNCED BY HONBLE CALCUTTA HIGH COURT IN THE CASE OF ITA NO. 262/ALLD./2010 11 MAHINDRA J. THACKAR & CO. (JUDGMENT DATED 16.06.198 1). THE LATTER DECISION OF THE HONBLE CALCUTTA HIGH COURT HAS TO BE GIVEN PREFERE NCE AS AGAINST ITS EARLIER DECISION OF THE SAME HIGH COURT. CONSIDERING THE FA CTS OF THE CASE IN THE LIGHT OF THE FINDINGS OF THE LD. CIT(A) ABOVE, AND CONSIDERI NG THE ABOVE DISCUSSION, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT( A) IN ANNULLING THE ASSESSMENT ORDER. NO OTHER CONTRARY DECISION HAS BEEN CITED BE FORE US OF THE JURISDICTIONAL HIGH COURT OR OF THE HONBLE SUPREME COURT. ACCORDI NGLY, THE DEPARTMENTAL APPEAL IS LIABLE TO BE DISMISSED. 6. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, ALLAHABAD 6. GUARD FILE ASSTT. REGISTRAR TRUE COPY