Pankaj Sharma, New Delhi V. DCIT, Ghaziabad

ITA 3557/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4479 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2011-2012
• Appeal Filed On: 03-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Difference of opinion; Right to appeal; Time period of passing order; Revised return; Change of opinion
• Section: 148; 132; 144; 15; 143(3); 142(1); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACOUNTANT MEMBER I.T.A .NOS. 3556 & 3557/DEL/2015 (ASSESSMENT YEARS 2010-11 & 2011-12) PANKAJ SHARMA, C/O M/S O.P. SAPRA & ASSOCIATES, C-763, NEW FRIENDS COLONY, NEW DELHI 110 025 (PAN: AWYPS9585Q) (APPELLANT) VS DCIT, CENTRAL CIRCLE, INCOME TAX OFFICE, 3 RD FLOOR, CGO COMPLEX-1, HAPUR ROAD, GHAZIABAD UP ( RESPONDENT) APPELLANT BY SHRI KAPIL GOEL, ADV. RESPONDENT BY SMT. SULEKHA VERMA, CIT(DR) ORDER PER H.S. SIDHU, JM THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE LD. CIT(A), GHAZIABAD RE LEVANT TO ASSESSMENT YEARS 2010-11 & 2011-12. SINCE THE ISSUES INVOLVE D IN THESE APPEALS ARE COMMON AND IDENTICAL, HENCE, THEY WERE HEARD TOGET HER AND ARE BEING CONSOLIDATED BY THIS COMMON ORDER FOR THE SAKE OF C ONVENIENCE, BY DEALING WITH THE FACTS AND CIRCUMSTANCES OF THE CASE OF ITA NO. 3556/DEL/2015 (AY 2010-11), WHICH WILL APPLY MUTATIS MUTANDIS IN OTHER APPEAL. IN BOTH THE APPEALS, THE ASSESSEE HAS RAISED AS MANY AS 08 GRO UNDS OF APPEAL RESPECTIVELY, BUT HE ONLY ARGUED NO. 1 RAISED IN B OTH THE APPEALS, WHICH IS LEGAL IN NATURE. THE FOLLOWING IS A COMMON LEGAL GR OUND NO. 1 RAISED IN BOTH THE APPEALS:- 2 1. THAT THE IMPUGNED ORDER AS PASSED BY THE LD. AO U/S. 153A/143(3) OF THE I.T. ACT ON 28.3.2013 OUGHT TO H AVE BEEN CANCELLED / ANNULLED BY THE LD. CIT(A) INTER ALIA BECAUSE: (A) THE IMPUGNED ASSESSMENT ORDER AS PASSED IS BARRED BY LIMITATION AS THE IMPUGNED ORDER PASSED U/S. 143(3) HAS BEEN ANTEDATED AS IF IT WAS PASSED ON 28.3.2013 AS AGAINST THE ACTUAL FACT THAT IT WAS N OT PASSED ON 28.3.2013. (B) PRINCIPLES OF NATURAL JUSTICE HAD ALSO BEEN VIOLATE D BECAUSE NO OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE APPELLANT BEFORE PASSING THE IMPUGNED ASSESSMENT ORDER. 2. THE BRIEF FACTS WITH REGARD TO THE ISSUE IN HAND ARE THAT ASSESSEE IS IN AN INDIVIDUAL AND IS REGULARLY FILING ITS RETURN OF INCOME WITH JURISDICTIONAL ASSESSING OFFICER AT GHAZIABAD. ASS ESSEE RECEIVED A NOTICE UNDER SECTION 153A OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) DATED 18.09.2012. ON 17.01.2013 ASSESSEE FILED THE RETUR N IN COMPLIANCE OF NOTICE UNDER SECTION 153A OF THE ACT. ASSESSEE FILE D THE DETAILED REPLY ON 29.01.2013. NO ASSESSMENT ORDER IS RECEIVED BY ASS ESSEE BEFORE 31.3.2013. ON 17.4.2013 ASSESSEE FILED AN APPLICATION STATING THAT NO ASSESSMENT ORDER IS SERVED ON THE ASSESSEE AND REQUESTED TO SUPPLY T HE CERTIFIED COPY OF THE ASSESSMENT ORDER. ON 18.4.2013, DCIT, CENTRAL CIRC LE/ AO SUPPLIED THE CERTIFIED COPY OF ASSESSMENT ORDER ALLEGEDLY PASSED ON 28.3.2013. AO WHILE COMPLETING THE ASSESSMENT ORDER HAS MADE VAR IOUS ADDITIONS AND COMPLETED THE ASSESSMENT AT RS. 5,76,47,430/- VIDE HIS ORDER DATED 28.03.2013 PASSED U/S. 143(3) OF THE ACT. AGAINST T HE ASSESSMENT ORDER, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE H IS IMPUGNED ORDER 3 DATED 31.3.2015 HAS DISMISSED THE APPEAL FOR STATIS TICAL PURPOSES. AGAINST THE IMPUGNED ORDER, ASSESSEE IS APPEAL BEFORE US. 3. LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT T HE ASSESSMENT ORDER AS PASSED IS BARRED BY LIMITATION AS THE ASSESSMENT OR DER U/S. 143(3) HAS BEEN ANTEDATED AS IF IT WAS PASSED ON 28.3.2013 AS AGAIN ST THE ACTUAL FACT THAT IT WAS NOT PASSED ON 28.3.2013, HENCE, THE ASSESSMENT ORDER PASSED U/S. 153A/143(3) OF THE INCOME TAX ACT, 1961 ON 28.3.201 3 OUGHT TO HAVE BEEN CANCELLED/ ANNULLED. IN SUPPORT OF HIS CONTEN TION HE FILED THE TWO PAPER BOOKS ONE IS CONTAINING PAGES 1 TO 109 IN WHI CH HE HAS ATTACHED THE COPY OF NOTICE ISSUED U/S. 153A DATED 18.9.2012 NOT ICE ISSUED U/S. 142(1) DATED 18.9.2012 AND DATED 14.12.2012; ORIGINAL ITR FILED ON 17.1.2013; POSTAL TRACKING RECORD OF ASSESSMENT ORDER THAT IT IS TIME BARRED AND OTHER RELATED EVIDENCE DULY FILED BEFORE LOWER AUTHORITIE S CONTAINING REVENUE DISPATCH RECORD ETC.; AUTHENTIC ORDER SHEET ENTRIES FROM CASE RECORDS; NOTICE U/S. 142(1) DATED 18.9.2012 AND 14.12.2012; REPLY DATED 29.1.2013; ORDER SHEET ENTRIES; WRITTEN SUBMISSION BEFORE CIT(A) (16 .10.2014); REMAND REPORT DATED 13.2.2015; REJOINDER DATED 25.2.2015; SECOND REJOINDER DATED 10.3.2015; THIRD REJOINDER DATED 12.3.2015; STATEME NTS OF ASSESSEE RECORDED AT THE TIME OF SEARCH ACTION U/S. 132; HONBLE ALLA HABAD HIGH COURT IN THE CASE OF SMT. KUSUM AGGARWAL (WRIT TAX NO. 822 TO 20 16); HONBLE CHATTISHGARH HIGH COURT RECENT DECISION IN ARDENT S TEEL LIMITED (WRIT PETITION 168/2016) ON ISSUE MEANING; ALLAHBAD HIGH COURT DECISION IN CASE OF RAJ KUMAR JAISWAL ITA NO. 25/2010 (28.2.2017). I N ANOTHER PAPER BOOK WHICH IS HAVING THE COPIES OF LD. CIT(A)S ORDER IN BOTH THE YEARS; REMAND REPORT OF AO DATED 13.2.2015 (PAPER BOOK IN ITA 355 7/DEL/2015) SAME IN OTHER YEAR; EVIDENCE FOR POSTAL BOOKING AND DISPATC H REGISTER ETC. (PAPER BOOK IN ITA NO. 3557/DEL/2015); AFFIDAVIT OF ASSESS EE ORDER BOOKED FOR POSTING ON 1.4.2013 AT 19:20 HOURS IN EVENING AND A LSO ENCLOSED THE COPY OF ITAT, CUTTACK BENCH DECISION DATED 05.7.2018 IN THE CASE OF GEETARANI 4 PANDA VS. ACIT IN IT(SS) NO. 01/CTK/2017 (AY 2007-0 8) AND IN THE CASE OF MANJUSMITA DASH VS. ACIT IN IT(SS) A NO. 02/CTK/ 2017 (AY 2007- 08) BY WHICH THE ISSUE IN DISPUTE IS SQUARELY COVER ED. IN VIEW OF ABOVE, HE REQUESTED TO QUASH THE ASSESSMENT ORDER ON THE LEGA L GROUND ITSELF AND CANCEL THE ORDERS OF THE AUTHORITIES BELOW. 4. ON THE CONTRARY, LD. CIT(DR) RELIED UPON THE ORD ERS OF THE AUTHORITIES BELOW AND REITERATED THE CONTENTION M ADE IN HER WRITTEN SUBMISSIONS:- A. IN GROUND NO. 1 (A) OF THE APPEAL OF A.Y. 2010- 11 & 2011-12 THE APPELLANT HAS CLAIMED THAT THE ASSESSME NT ORDER IS BARRED BY LIMITATION AND REQUIRED TO BE SE T ASIDE ON THIS GROUND. THE APPELLANT HAS MENTIONED THAT TH E ORDER OF ASSESSMENT, THOUGH DATED 28.03.2013, BUT H AS BEEN MADE ONLY ON 31.03.2013. B. THIS ISSUE HAS ALSO BEEN AGITATED BEFORE CIT(A) IN APPEAL NO. 296/2013-14/GZB FOR A.Y. 2010-11 AND IN APPEAL NO. 297/2013-14/GZB FOR A.Y. 2011-12 AND LD. CIT(A) HAD ADJUDICATED THIS ISSUE IN PARA 5.3 OF TH E ORDER AND REJECTED THE PLEA OF THE APPELLANT. C. AS PER THE PROVISION OF SECTION 153(1) OF THE A CT THE ORDER U/S 143 OR U/S 144 SHALL NOT BE MADE AFTER TH E EXPIRY OF TWO YEARS FROM THE END OF THE A.Y. IN WHI CH THE INCOME WAS FIRST ASSESSABLE, MEANING THEREBY TH AT NO ORDER OF ASSESSMENT SHALL BE MADE AFTER 31.03.2016. THIS FACT IS ALSO MENTIONED BY THE APPELLANT IN THE WRIT TEN SUBMISSION AND THERE IS NO DISAGREEMENT ON THIS ACC OUNT. HOWEVER, EVEN AFTER QUOTING THE PROVISION OF SECTIO N 153(1) WHERE THE WORD THE ASSESSMENT SHALL BE MADE HAS BEEN GIVEN AND THERE IS NO MENTION OF ISSUE OF THE 5 ORDER IN THIS SECTION, THE APPELLANT HAS CLAIMED TH AT IT SHOULD BE ISSUED. THE APPELLANT HAS ALSO RELIED UPON THE DECISIONS OF HONBLE COURTS WHERE THE ISSUE OF NOTICE U/S 148 WAS IN QUESTION AND NOT THE PASSING OF ORDER U/S 143(3). APPARENTLY, IN THESE CASES THE NO TICE WHICH WAS SIGNED ON 31.03.2010 WAS SENT FOR BOOKING ON SUBSEQUENT DATE AND THE HONBLE COURT HAS HELD T HAT THE DATE ON WHICH THE SAID NOTICES WERE ACTUALLY HA NDED OVER TO THE POST OFFICE FOR THE PURPOSE OF BOOKING FOR AFFECTING SERVICE CAN BE SAID AS THE DATE OF ISSUE OF NOTICE. HOWEVER, THE FACT OF THE CASE OF THE APPELLANT IS THAT ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS MADE ON 28.03.2013 AND THE AO HAS DISPATCHED THESE ORDERS TO THE POST OFFICE ON 31.03.2013. THE SYSTEM IN THE INCOME TAX DEPARTMENT IS THAT THE PERSONS FROM THE BUSINESS POST OFFICE CENTRE COMES AND COLLECT THE ENVELOPES OF SPEED POST FROM THE DIFFERENT OFFICES AND THEN HAND IT OVER TO THE HEAD OFFICE OF THE POST OF FICE FOR SORTING AND FURTHER SEND IT FOR DELIVERY . APPARENT LY, INDIA POST CENTRE GIVES THE DATE WHEN THE ITEMS ARE BOOKED IN THE HEAD OFFICE FOR DELIVERY AND IT IS NO T THE DATE ON WHICH THE ITEMS ARE COLLECTED FROM THE OFFI CES BY THE PERSONS OF THE POST OFFICE. HENCE, APPARENTLY T HE SPEED POST NO. WHICH IS SIGNED BY THE AO ON 28.03.2 013 SHOWS THAT THE DISPATCH WAS MADE ON 31.03.2013. IN THIS LIGHT, ALSO EVEN ON FACTS, THERE IS NO DELAY. D. THE TIME LIMIT FOR COMPLETION OF ASSESSMENT AND REASSESSMENT HAS BEEN GIVEN U/S 153(1) AND THIS TIM E 6 LIMIT CANNOT BE COMPARED WITH THE LIMITATION WHICH IS GIVEN U/S 149 OF THE ACT, WHICH IS FOR THE ISSUE OF NOTICE U/S 148 OF THE ACT. FOR BETTER APPRECIATION, BOTH T HESE SECTION 153(1) AND SECTION 148 ARE REPRODUCED AS UN DER: SECTION 153(1) TIME LIMIT FOR COMPLETION OF ASSESSMENTS AND REASSESSMENTS. 153.(1) NO ORDER OF ASSESSMENT SHALL BE MADE UNDER SECTION 143 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 OF THE FINANCIAL YEAR IN WHICH A RETURN OR A REVISED RETURN RELATING TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST 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 CASE THE ASSESSMENT YEAR IN WHICH THE INCOME WAS FIRST ASSESSABLE IS THE ASSESSMENT YEAR COMMENCING ON OR AFTER THE 1ST DAY OF APRIL, 2004 BUT BEFORE THE 1ST DAY OF APRIL, 2010, THE PROVISIONS OF CLAUSE (A) SHALL HAV E EFFECT AS IF FOR THE WORDS 'TWO YEARS', THE WORDS 'TWENTY-ONE MONTHS' HAD BEEN SUBSTITUTED. PROVIDED FURTHER THAT IN CASE THE ASSESSMENT YEAR IN WHICH THE INCOME WAS FIRST ASSESSABLE IS THE ASSESSMENT YEAR COMMENCING &[ON OR AFTER THE 1ST DAY OF APRIL, 2005 BUT BEFORE THE 1ST DAY OF APRIL, 2009 AND DURING THE COURSE OF THE 7 PROCEEDING FOR THE ASSESSMENT OF TOTAL INCOME, A REFERENCE UNDER SUB-SECTION (1) OF SECTION 92CA (I) WAS MADE BEFORE THE 1ST DAY OF JUNE, 2007 BUT AN ORDER UNDER SUB-SECTION (3) OF THAT SECTION HAS NOT BEEN MADE BEFORE SUCH DATE; OR (II) IS MADE ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE PROVISIONS OF CLAUSE (A) SHALL, NOTWITHSTANDING ANYTHING CONTAINED IN THE FIRST PROVISO, HAVE EFFECT AS IF FOR THE WORDS 'TWO YEARS', THE WORDS 'THIRTY-THREE MONTHS' HAD BEEN SUBSTITUTED. PROVIDED ALSO THAT IN CASE THE ASSESSMENT YEAR IN WHICH THE INCOME WAS FIRST ASSESSABLE IS THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 2009 OR ANY SUBSEQUENT ASSESSMENT YEAR AND DURING THE COURSE OF THE PROCEEDING FOR THE ASSESSMENT OF TOTAL INCOME, A REFERENCE UNDER SUB- SECTION (1) OF SECTION 92CA IS MADE, THE PROVISIONS OF CLAUSE (A) SHALL, NOTWITHSTANDING ANYTHING CONTAINED IN THE FIRST PROVISO, HAVE EFFEC T AS IF FOR THE WORDS 'TWO YEARS', THE WORDS 'THREE YEARS' HAD BEEN SUBSTITUTED. SECTION 148 ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMENT. 148. (1) BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION THE 8 ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INCOME OR THE INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR CORRESPONDING TO THE RELEVANT ASSESSMENT YEAR, IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED; AND THE PROVISIONS OF THIS ACT SHALL, S O FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139. HENCE, FROM THE ABOVE, IT IS APPARENT THAT SECTION 149 SPEAKS THAT NO NOTICE U/S 148 SHALL BE ISSUED WHEREAS SECTION 153 DOES NOT GIVE THE WORD ISSUED. IT SAYS THAT NO ORDER OF ASSESSMENT SHALL BE MADE THAT MEANS IT CLEARLY GIVES THE TIME LIMITATION FOR COMPLETION OF ASSESSMENT AND REASSESSMENT AND NOT FOR THE ISSUE OF ASSESSMENT ORDER. THE DIFFERENT WORDS USED BY THE LEGISLATURE IN DIFFERENT SECTIONS CLEARLY PROVES THAT BY 31.03.2016 ONLY THE ASSESSMENT/REASSESSMENT HAS TO BE MADE AND NOT ISSUED OR SEND. HENCE, THE COMPARISON BY THE APPELLANT OF SECTION 149 AND SECTION 153 IS WRONGLY MADE. E. FROM THE ABOVE, IT IS APPARENT THAT THE INTENTION OF LEGISLATURE IS TO COMPLETE THE ASSESSMENT AND IF THE ASSESSMENT ORDER REACHES 9 THE APPELLANT WITHIN THE REASONABLE TIME, IT CANNOT BE SAID THAT IT IS BARRED BY LIMITATION. APPARENTLY , THE ASSESSMENT ORDER WAS PASSED ON 28.03.2013, COLLECTED FROM ASSESSING OFFICER ON 31.03.2013 BY THE SPEED POST CENTRE PEOPLE. IN THIS LIGHT, THE RE IS NO MERIT AND SUBSTANCE IN GROUND NO. 1 OF THE APPEAL AND THE CLAIM MADE BY THE APPELLANT DESERVES TO BE REJECTED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS ESPECIALLY THE IMPUGNED ORDER PASSED BY THE LD. CIT(A), PAPER BOOKS AND THE CASE LAWS REFERRED BY BOTH THE PARTIES. WE FIND THAT IT IS THE MAIN CONTENTION OF THE ASSESSEE THAT ASSESSMENT ORDER IS SERVED ON ASSESSEE ON 18.4.2013 AND IS BARRED BY LIMITATION AND THEREFORE, ASSESSME NT ORDER DESERVES TO BE DECLARED NULL AND VOID. THOUGH THE ASSESSMENT ORDER IS DATED 28.3.2013, BUT IT IS SERVED ON ASSESSEE ON 18.4.2013 I.E. AFTER TH E EXPIRY OF THE PERIOD ON WHICH ASSESSMENT ORDER WAS LIABLE TO BE TIME BARRED AS PER SECTION 153 OF THE INCOME TAX ACT, 1961 AND IT IS BARRED BY LIMITA TION. HOWEVER, THE LD. CIT(DR) HAS THE CONTENTION THAT THE INTENTION OF TH E LEGISLATURE IS TO COMPLETE THE ASSESSMENT AND IF THE ASSESSMENT ORDER REACHES THE ASSESSEE WITHIN THE REASONABLE TIME, IT CANNOT BE SAID THAT IS BARRED BY LIMITATION. APPARENTLY, THE ASSESSMENT ORDER WAS PASSED ON 28.3 .2013, COLLECTED FROM ASSESSING OFFICER ON 31.3.2013 BY THE SPEED POST CE NTRE PEOPLE. IN THIS LIGHT, THERE IS NO MERIT AND SUBSTANCE IN GROUND NO . 1 OF THE APPEAL AND THE CLAIM BY THE ASSESSEE DESERVES TO BE REJECTED. WE F URTHER NOTE THAT LD. CIT(A) HAS GIVEN THE FOLLOWING FINDING:- 5.3 GROUND OF APPEAL NO. 3: 10 5.3.1 IN THIS GROUND THE ASSESSEE HAS CONTENDED THA T THE ASSESSMENT IS BARRED BY LIMITATION. THE ASSESSEE APPELLANT HAS SUBMITTED THAT: THAT ASSESSMENT ORDER IS SERVED ON ASSESSEE ON 18.4.2013 IS BARRED BY LIMITATION AND THEREFORE, ASSESSMENT ORDER DESERVES TO BE DECLARED NULL AND VOID. THOUGH THE ASSESSMENT ORDER IS DATED 28.03.2013, BUT IT IS SERVED ON ASSESSEE ON 18.04.2013 I.E. AFTER THE EXPIRY OF THE PERIOD ON WHICH ASSESSMENT ORDER WAS LIABLE TO BE TIME BARRED AS PER SECTION 153 OF THE INCOME-TAX ACT, 1961 AND IT IS BARRED BY LIMITATION. 5.3.2 IN THIS REGARD, THE ASSESSING OFFICER IN HIS REMAND REPORT HAS SUBMITTED THAT:- AS PER RECORD, THE ASSESSMENT WAS COMPLETED ON 28.03.2013 AND WAS DISPATCHED ON 31.03.2013 ON THE ADDRESS GIVEN BELOW:- SH. PANKAJ SHARMA, S/O SH. DHARAM PAL SHARMA, C-198, 1ST FLOOR, NEW PANCHWATI COLONY, GHAZIABAD. THUS, THE ASSESSMENT WAS COMPLETED ON 28.03.2013 WHICH IS WITHIN LIMITATION AND THE ORDER WAS DISPATCHED ON 11 31.03.2013. AS THE ASSESSMENT WAS MADE WITHIN LIMITATION AS PER PROVISIONS OF SECTION 153(1) OF I.T. ACT, THE ASSESSEES CONTENTION MAY KINDLY BE REJECTED. 5.3.3 IN REJOINDER REPORT THE APPELLANT HAS REITER ATED THE FACTS AS MENTIONED HIS EARLIER SUBMISSION. 5.3.4 I HAVE CONSIDERED THE RIVAL CONTENTIONS AND THE FACTS OF THE CASE. I FIND THAT THE REQUIREMENT OF T HE LAW IS THAT ASSESSMENT ORDER SHOULD BE MADE UNDER SECTION 143(3) WITHIN GIVEN PERIOD. THE LAW DOES NOT REQUIR E SERVICE OF SUCH ORDER WITHIN THE GIVEN PERIOD. IN T HE PRESENT CASE, THE SAID PERIOD ENDED ON 31.03.2013. THE ORDER IS DATED 28.03.2013 AND AS PER THE APPELLANT IT WAS DISPATCHED THROUGH SPEED POST ON 01.04.2013 AN D ASSESSEE RECEIVED IT ON 02.04.2013. THE APPELLANT O N THESE FACTS SUBMITS THAT THE ORDER IS TIME BARRED. IN SUPPORT OF THE SAME, THE APPELLANT HAS SUBMITTED A COPY OF SPEED POST TRACK REPORT WHICH WAS SENT TO THE ASSESSING OFFICER FOR HIS COMMENTS. THE ASSERTION T HAT SPEED POST WAS BOOKED ON 02.04.2013 IS NOT COMMENTE D UPON BY ASSESSING OFFICER IN HIS REPORT AND IT CAN BE PRESUMED THAT HE DOES NOT REBUT THIS CLAIM OF ASSES SEE APPELLANT. THE ASSESSING OFFICER HAS HOWEVER SUBMIT TED THAT ORDER WAS PASSED ON 31.03.2013 WITH APPROVAL O F ADDL. CIT, CENTRAL RANGE, MEERUT DATED 28.03.2013 A ND WAS DISPATCHED ON 31.03.2013 AND GIVEN FOR SPEED PO ST ON 31.3.2013. THE SCANNED COPY OF THE DOCUMENTS 12 PRODUCED IN REPORT BY THE ASSESSING OFFICER IS REPRODUCED BELOW:-.. ..AS REGARDS THE ISSUE WHETHER ASSESSMENT WAS TIM E BARRED NOT, AS STATED ABOVE THE ONLY REQUIREMENT OF LAW IS TO MAKE ASSESSMENT BY GIVEN DATE. THE ASSESSEE H AS PLACED RELIANCE ON CASE OF SHANTI LAI GODHAWAT. THE CASE LAW CITED BY THE ASSESSEE I.E. THE CASE OF SHA NTIAL GODAWAT DECIDED BY HONBLE ITAT JODHPUR HAS BEEN CONSIDERED BY THE HONBLE ITAT MUMBAI IN CASE OF JA I JINENDRA COLD STORAGE PVT LTD. VS ACIT IN ITA NO. 2 584 AND 2585 AND AFTER DISCUSSING FACTS OF THAT CASE, W HICH ARE SIMILAR TO THAT OF PRESENT CASE, IT HAS HELD TH AT MERELY BECAUSE ACCORDING TO THE ASSESSEE THAT WAS DISPATCHED ON 1.1.2010 DOES NOT MEAN THAT THE ASSESSMENT ORDER WAS PASSED AFTER THE STATUTORY TIM E LIMIT PROVIDED UNDER THE ACT. IT HAS FURTHER HELD THAT THE QUESTION AS TO WHEN AN ORDER CAN BE STATED TO HAVE BEEN MADE WAS THE SUBJE CT OF CONSIDERATION IN GOVERNMENT WOOD WORKSHOP V. STATE OF KERALA [1988] 69 STC 62; [1987] 1 KLT 804 IN WHICH THE COURT STATED, AFTER RELYING ON VARIOUS DECISIONS OF THE SUPREME COURT CULMINATING IN B.J. SHELAT V. STATE OF GUJARAT. AIR 1978 SC 1109, AS FO LLOWS (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 AFFECTED HAS THE MEANS OF KNOWING IT. IT IS N OT ENOUGH IF THE ORDER IS MADE, SIGNED, AND KEPT IN TH E FILE, BECAUSE SUCH ORDER MAY BE LIABLE TO CHANGE AT THE H ANDS 13 OF THE AUTHORITY WHO MAY MODIFY IT, OR EVEN DESTROY IT, BEFORE IT IS MADE KNOWN, BASED ON SUBSEQUENT INFORMATION, THINKING O R CHANGE OF OPINION. TO MAK E THE ORDER COMPLETE AND EFFECTIVE, IT SHOULD BE ISSUED, SO AS TO BE BEYOND THE CONTROL OF THE AUTHORITY CONCERNED , FOR ANY POSSIBLE CHANGE OR MODIFICATION THEREIN. THIS S HOULD BE DONE WITHIN THE PRESCRIBED PERIOD, THOUGH THE AC TUAL SERVICE OF THE ORDER MAY BE BEYOND THAT PERIOD.' (EMPHASIS SUPPLIED) HAVING DISCUSSED THE FACTS AND ABOVE JUDGEMENT, THE HONBLE ITAT HAS HELD THAT RESPECTFULLY FOLLOWING T HE SAME AND IN THE ABSENCE OF ANY MATERIAL TO SHOW THA T THE ORDER PASSED BY THE AO WAS NOT MADE ON 30.12.2009, WE HOLD THAT THE ORDER PASSED BY THE AO WAS WITHIN THE LIMITATION AND NOT BARRED BY LIMITATION. THE PLEA T AKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE IS WITHOUT ANY MERIT, AND, HENCE, THE SAME IS REJECTED. IN PRESENT CASE, THE EVIDENCE PROVES THAT THE ONCE THE ASSESSMENT ORDER HAS BEEN GIVEN FOR SPEED POST TO A THIRD PERSON (WHICH THE APPELLANT CLAIMS TO BE A NO TICE SERVER) BE IT A POSTMAN OR NOTICE SERVER OF THE DEPARTMENT, IT IS OUT OF HANDS OF THE ASSESSING OFF ICER. THE FACT THAT THE ORDER HAS BEEN APPROVED BY ADDL C IT, HAS BEEN SHOWN TO HAVE BEEN DISPATCHED IN THE DISPA TCH AND HANDED OVER TO THIRD PERSON FOR SPEED POST PRIO R TO TIME BARRING DATE PROVE THAT THE ORDER WAS MADE, OP OR BEFORE 31.03.2013. IN FACTS AND CIRCUMSTANCES OF TH E CASE, I HOLD THAT THE IMPUGNED ASSESSMENT ORDER HAS 14 BEEN MADE WITHIN STIPULATED TIME. THEREFORE, THIS G ROUND OF APPEAL IS REJECTED. 5.1 AFTER PERUSING THE AFORESAID FINDING OF THE LD. CIT(A), WE FIND THAT AO IN HIS REMAND REPORT HAS SUBMITTED THAT AS PER R ECORD, THE ASSESSMENT WAS COMPLETED ON 28.3.2013 WHICH IS WITHIN LIMITATI ON AND THE ORDER WAS DISPATCHED ON 31.3.2013. HENCE, THE ASSESSMENT WAS WITHIN LIMITATION AS PER PROVISIONS OF SECTION 153(1) OF I.T. ACT AND SA ME VIEW WAS ADOPTED BY THE LD. CIT(A) AND LATER REITERATED BY THE LD. CIT( DR) BEFORE US. BUT, AFTER PERUSING THE EVIDENCE FOR POSTAL BOOKING AND DISPAT CH REGISTER WHICH ARE PLACED ON RECORD AT PAGE NO. 11-16 OF PAPER BOOK I N ITA NO. 3557/DEL/2015 (AY 2011-12), WE FIND CONSIDERABLE CO GENCY IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSMENT ORDER AS PASSED BY LIMITATION AS THE SAME HAS BEEN ANTEDATED AS IT WAS PASSED ON 28.3.2013 AS AGAINST THE ACTUAL FACT IT WAS NOT PAS SED ON 28.03.2013. THOUGH THE ASSESSMENT ORDER IS DATED 28.3.2013, BUT IT SERVED ON THE ASSESSEE AFTER THE EXPIRY OF THE PERIOD ON WHICH AS SESSMENT ORDER WAS LIABLE TO BE TIME BARRED AS PER SECTION 153 OF THE INCOME TAX ACT, 1961 AND IT IS BARRED BY LIMITATION. WE FURTHER NOTE THAT ASSESSE E HAS SUBMITTED A AFFIDAVIT DATED 26.11.2018 WHICH IS PLACED IN PAPE R BOOK WHICH STATES THAT ASSESSMENT ORDER WAS NOT DISPATCHED ON 28.03.2013 O R 31.03.2013 AND IT WAS DISPATCHED IN THE LATE EVENING (TIME 19:20) OF 01.04.2013 I.E. AFTER THE EXPIRY OF LIMITATION PERIOD. FOR THE SAKE OF CONVEN IENCE, WE ARE REPRODUCING THE INDIA POST TRACK RESULT RECEIPT AS UNDER:- INDIA POST MINISTRY OF COMMERCE & INFORMATION TECHNOLOGY TRACK RESULT FOREU283993276IN TRACT. MORE BOOKED AT BOOKED ON DELIVERED AT DELIVERED ON MODEL TOWN S.O (GHAZIABAD) 01/04/2013 NOT AVAILABLE NOT AVAILABLE DETAILS DETAILED TRACK EVENTS FOR EU283993276IN DATE TIME STATUS AT STAT US 01/04/2013 19:20:00 MODEL TOWN S.O (GHAZIABAD) ITEM BOOKED 01/04/2013 19:52:30 GHAZIABAD SH BAG RECEIVED 01/04/2013 19:52:46 MODEL TOWN S.O (GHAZIABAD) ITEM BAGGED FOR GHAZIABAD SH 15 01/04/2013 19:53:03 MODEL TOWN S.O (GHAZIABAD) BAG DESPATCHED TO GHA ZIABAD CSO 01/04/2013 20:51:43 GHAZIABAD SH BAG OPENED 01/04/2013 20:51:53 GHAZIABAD SH ITEM RECEIVED 02/04/2013 01:27:09 GHAZIABAD SH ITEM BAGGED FOR KAVI NAGAR S.O 02/04/2013 05:02:16 GHAZIABAD SH BAG DESPATCHED TO KAVI NAGAR S.O 02/04/2013 09:42:17 KAVI NAGAR S.O BAG RECEIVED 02/1)4/2013 10:02:45 KAVI NAGAR S.O BAG OPENED 02/04/2013 10:02:45 KAVI NAGAR S.O ITEM RECEIVED 5.2 AFTER PERUSING THE AFORESAID TRACT REPORT, IT I S CRYSTAL CLEAR THAT INCOME TAX DEPARTMENT HAS BOOKED THE DAK CONTAININ G ASSESSEES ASSESSMENT ORDER DATED 28.03.2013 IN DISPUTE ONLY O N 01/04/2013 AT 19:20:00 FROM MODEL TOWN S.O. (GHAZIABAD) WHICH WAS RECEIVED ON 02/04/2013 10:02:45 KAVI NAGAR, S.O., AND DID ESTA BLISH THAT WHEN THE ASSESSEE HAS RECEIVED THE ASSESSMENT ORDER, HENCE, THE ASSESSMENT IS BARRED BY LIMITATION AND DESERVES TO BE SET ASIDE ON THIS ACCOUNT. IN THIS REGARD, WE DRAW SUPPORT FROM THE DECISION DATED 27.09.2018 OF THE ITAT, CUTTACK BENCH PASSED IN IT(S)A NO. 44 TO 46/CTK/2016 (AYRS. 2004-05 TO 2006- 07) & ORS. IN THE CASE OF SRI TRINADH CHOWDARY VS. ACIT, CORPORATE CIRCLE 1(2), BHUBANESWAR & ORS., WHEREIN IT HAS HELD AS UNDER, ON SIMILAR AND IDENTICAL ISSUE:- 11. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED TH E MATERIALS AVAILABLE ON RECORD. LD. AR'S CONTENTION THAT THE ORDER PASSED BY THE AO U/S.153A(B)/254 OF THE ACT I S BARRED BY LIMITATION AND IT WAS SERVED ON THE ASSES SEE/LD. AR ON 06.04.2015. THE LD. AR SUPPORTED HIS ARGUMENT S WITH THE PAPER BOOK AND ALSO REFERRED TO THE EARLIE R DIRECTIONS OF THE TRIBUNAL IN IT(SS)A NO.13 TO 17/CTK/2017, ORDER DATED 10.10.2013, WHEREIN THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF AO AND OBSERVED AT PARA 6 TO 8, WHICH READ AS UNDER :- '6. WE HAVE GONE THROUGH GROUND NOS.1 TO 3 TAKEN BY THE ASSESSEE, WHEREIN, IN GROUND NO.1, ASSESSEE HAS TAK EN THE CONTENTION THAT ID OT(A) HAS NOT ACCEPTED THE F ACT THAT THE ASSESSMENT ORDER HAS BEEN SERVED ON THE ASSESSEE AFTER 46 DAYS FROM THE PERIOD OF LIMITATIO N. THEREFORE, THE ASSESSMENT ORDER IS NULLITY IN EYES OF LAW. THE SECOND GROUND IS THAT AO HAS VIOLATED THE PRINC IPLES OF NATURAL JUSTICE BY CALLING RETURN OF INCOME U/S. !53A OF 16 THE I.T.ACT, 1961 AND THIRD GROUND IS THAT AO HAS N OT GIVEN REASONABLE OPPORTUNITY TO THE ASSESSEE TO PRO DUCE ANY EVIDENCE IN SUPPORT OF RETURN AND HAS VIOLATED THE PRINCIPLES OF NATURAL JUSTICE INSOFAR AS THE ISSUAN CE OF NOTICE U/S.L43(2) IS CONCERNED. WE ALSO FIND THAT I D CIT(A) HAS DISMISSED THESE GROUNDS. WE ALSO FIND FROM THE ORDERS OF THE AO AS WELL AS ID CIT(A) THAT AO HAS N OT GIVEN REASONABLE OPPORTUNITY OF HEARING BEFORE PASS ING THE ORDERS TO THE ASSESSEE. THEREFORE, IN OUR OPINI ON, AO AND ID CIT(A) HAS PASSED THE ORDERS WITHOUT FOLLOWI NG PRINCIPLES OF NATURAL JUSTICE. IN RESPECT OF NOTICE UNDER SECTION 143(2), WE FIND THAT NOTICE WAS ISSUED ON T HE SAME DATE AT 11 AM AND IT WAS NOT POSSIBLE FOR THE ASSESSEE TO FILE SUBMISSION AND COULD NOT PRODUCE D ETAILS AS CALLED FOR AND IN VIEW OF THIS, ASSESSEE WAS NOT ABLE TO COOPERATE WITH THE ASSESSMENT PROCEEDINGS. 7. THE HON'BLE ORISSA HIGH COURT IN THE CASE OF RAD HIKA CHARAN BANERJEE V SAMBALPUR MUNICIPALITY, AIR 1979 ORISSA 69, HAS HELD THAT RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED OPPORT UNITY OF BEING HEARD IRRESPECTIVE OF LANGUAGE CONFERRING SUC H RIGHT THAT IS A PART AND PARCEL OF PRINCIPLES OF NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JU DICIAL CAPACITY, IT IS IMPERATIVE TO GIVE APPELLANT AN ADE QUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPE AL. THE AIM OF THE RULE OF NATURAL JUSTICE IS TO PREVEN T MISCARRIAGE OF JUSTICE AND DENIAL OF PRINCIPLES OF AUDI ALTERAM PARTEM RESULTS INTO SUCH MISCARRIAGE OF JUS TICE. THEREFORE, THE LEARNED CIT(A) SHOULD HAVE AFFORDED REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THEREFORE, IN ORDER TO IMPART SUBSTANTIAL JUSTICE T O THE ASSESSEE, WE REVERSE THE ORDERS OF LD. CIT(A) AND R ESTORE THE APPEALS TO THE FILE OF THE AO TO DECIDE GROUND NOS.1 TO 3 AFRESH AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. 8. AS WE HAVE RESTORED GROUND NOS.1 TO 3, REST OF T HE ISSUES TAKEN IN GROUND NOS.4 TO 8 ALSO RESTORED TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH. AO IS DIREC TED TO FRAME DENOVO ASSESSMENT AS PER LAW.' ACCORDINGLY, AS PER THE DIRECTIONS OF THE TRIBUNAL THE AO HAS PASSED THE REASSESSMENT ORDER ON 30.03.2015 AGAINST WHICH THE ASSESSEE HAS FILED AN APPEAL WITH THE FIRST APPELLATE AUTHORITY AND WAS DISMISSED BY THE CIT(A). THE CONTENTION OF LD. AR IS THAT THE REASSESSMENT O RDER 17 PASSED ON 30.03.2015 IS BARRED BY LIMITATION AS THE SAME WAS SERVED ON 06.04.2015. FURTHER LD. AR DEMONSTRAT ED THE SERVICE OF ORDER WITH PAPER BOOK ALONG WITH COP Y OF THE NOTICE OF DEMAND U/S.156 OF THE ACT DATED 30.03 .2015 WITH ENDORSEMENT OF RECEIPT OF THE ORDER ON 06.04.2 015 FOR THE SAID ASSESSMENT YEAR, WHICH THE REVENUE HAS NOT DISPUTED. LD. AR VEHEMENTLY EMPHASIZED THAT THE REASSESSMENT ORDER WAS PASSED BEYOND LIMITATION PER IOD AND IS BARRED BY LIMITATION AND SUPPORTED HIS SUBMI SSIONS WITH THE DECISIONS OF COORDINATE BENCH OF THE TRIBU NAL. 12. WE HAVE PERUSED THE DECISIONS OF THE TRIBUNAL A ND THE SUPPORTING MATERIAL PLACED ON RECORD. WE FOUND THAT THERE IS NO DISPUTE RAISED BY THE REVENUE IN RESPECT OF S ERVING OF ORDER ON 06.04.2015 BUT THE FACT REMAINS THAT TH E REVENUE COULD NOT DEMONSTRATE WITH EVIDENCE THAT TH E ORDER WAS PREPARED AND HAS LEFT OFFICE OF AO ON DAT E OF PASSING OF THE ORDER, WHEREAS THE LD. DR SUBMITTED THAT THE ABOVE ORDER WAS PREPARED AND WAS SENT TO THE ADDITIONAL/JOINT COMMISSIONER OF INCOME TAX FOR APP ROVAL BEFORE SERVING ON THE ASSESSEE AND THE ORDER WAS PA SSED ON 30.03.2015. WE FOUND THAT THIS ISSUE OF SERVICE OF THE ORDER WA S DEALT BY THIS COORDINATE BENCH OF THE TRIBUNAL IN THE CAS E OF GEETARANI PANDA & ORS. VS. ACIT, IT(SS)A NOS.01&02/CTK/2017, DATED 05.07.2018, WHEREIN THE TRIBUNAL OBSERVED AS UNDER :- '19. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED T HE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE HAS RAISE D TWO LEGAL ISSUES. FIRSTLY, THE ORDER OF ASSESSMENT BEIN G ISSUED AFTER THE STATUTORILY PERMITTED TIME IS BARRED BY L IMITATION. SECONDLY, NO REQUISITE APPROVAL AS ENVISAGED UNDER THE PROVISIONS OF SECTION 153D OF THE ACT WAS OBTAINED AND, THEREFORE, THE IMPUGNED ORDER OF ASSESSMENT IS BARR ED IN LAW. 20. WE FIND FORCE IN BOTH THE ABOVE LEGAL ISSUES RA ISED BY THE ASSESSEE FOR THE REASON DISCUSSED HEREUNDER. 21. IN THE INSTANT CASE, IT IS NOT IN DISPUTE THAT THOUGH THE IMPUGNED ORDER OF ASSESSMENT IS DATED 31.3.2015 WAS ISSUED AND SERVED MANUALLY ONLY ON 8.4.2015 ON THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE. THIS BEN CH OF THE TRIBUNAL IN THE CASE OF M/S. NIDAN VS ACIT , (2018) 53 CCH 0046 (CUTTACK TRIBUNAL) HAS HELD AS UNDER: ' 18 4. IN ALL THE ABOVE SEVEN APPEALS, THE ASSESSEE RAI SED A LEGAL GROUND WHICH IS THAT THE ORDERS OF ASSESSMENT PASSED BY THE ASSESSING OFFICER ARE BARRED BY LIMIT ATION. 5. THE FACTS RELATING TO THIS ISSUE ARE THAT A SEAR CH AND SEIZURE OPERATION WAS CONDUCTED IN THE CASE OF THE ASSESSEE ON 28.5.2014. IN PURSUANCE TO THE SAID SEA RCH, ORDER U/S.153A R.W.S 144 OF THE ACT WAS PASSED FOR THE ASSESSMENT YEARS 2009-2010 TO 2014-15 AND ASSESSMEN T FOR THE ASSESSMENT YEAR 2015-16 WAS MADE U/S.144 OF THE ACT. THE SAID ORDERS OF ASSESSMENT WERE SERVED UPON THE ASSESSEE ON 9.1.2017 THOUGH ALL THE ORDERS WERE DATED 30.12.2016. 6. BEFORE THE CIT(A), THE ASSESSEE CONTENDED THAT T HE AFORESAID ORDERS BEING DISPATCHED ON 7.1.2017 ARE B ARRED BY LIMITATION. THE CIT(A) OBSERVED THAT AS THE ORDE RS WERE DATED 30.12.2016 AND IN ABSENCE OF ANY MATERIA L TO SHOW THAT THE ASSESSING OFFICER REVISITED THESE ORD ERS AFTER 30.12.2016 UPHELD THE ORDERS AND DRAWN SUPPOR T FROM THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. BINANI INDUSTRIES LTD., (2015) 59 TAXMANN.COM 389 (CAL). 7. BEFORE US, THE ASSESSEE PRODUCED COPY OF ENVELOP E BY WHICH THE ORDERS OF ASSESSMENT WERE SENT TO THE ASS ESSEE BY THE ASSESSING OFFICER AND COPY OF TRACK RECORD O F SPEED POST TO SHOW THAT THE IMPUGNED ORDERS OF ASSESSMENT WERE, IN FACT, DISPATCHED BY THE ASSESSING OFFICER ON 7.1.2017, THOUGH THE ORDERS WERE DATED 30.12.2016. THE ASSESSEE CONTENDED THAT AS THE ORDERS WERE DISPATCH ED AFTER 30.12.2016, THEREFORE, THE ORDERS OF ASSESSME NT WERE BARRED BY LIMITATION. HE PLACED RELIANCE ON TH E DECISION OF HON'BLE KARNATAKA HIGH COURT IN THE CAS E OF CIT VS. B J N HOTELS LD ., (2017) 79 TAXMANN.COM 336(KAR). 8. ON THE OTHER HAND, LD D.R. PLACED RELIANCE ON TH E ORDERS OF THE CIT(A). 9. LD D.R. COULD NOT EXPLAIN WHEN THE ORDERS WERE PREPARED ON 30.12.2016 WHY IT COULD NOT BE DISPATCH ED ON OR BEFORE 31.12.2016. 10. WE FIND THAT SECTION 153B(1)(A) READS AS UNDER: 19 '153B (1) NOTWITHSTANDING ANYTHING CONTAIN IN SECTI ON 153, THE AO SHALL MAKE AN ORDER OF ASSESSMENT OR REASSESSMENT - (A) IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITH IN SIX ASSESSMENT YEARS [AND FOR THE RELEVANT ASSESSMENT Y EAR OR YEARS] REFERRED TO IN CLAUSE (B) OF SUB-SECTION (1) OF SECTION 153A, WITHIN A PERIOD OF TWENTY-ONE MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED.' 11. A PERUSAL OF THE ABOVE PROVISIONS SHOW THAT THE LANGUAGE USED BY THE LEGISLATURE IN THE ABOVE PROVI SION IS IN NEGATIVE AND THE WORDS USED ARE 'ORDER OF ASSESS MENT' AND NOT ONLY 'ASSESSMENT'. THE WORD ORDER DENOTES A COMMAND WHICH IS TO BE FOLLOWED BY SOMEBODY ELSE. UNLESS THE COMMAND IS COMMUNICATED TO THE PERSON BY WHOM IT HAS TO BE FOLLOWED, IT DOES NOT BECOME AN 'ORDER'. 12. IN OUR CONSIDERED VIEW, SIMPLY DETERMINING THE TOTAL INCOME OF AN ASSESSEE AND DETERMINING ITS TAX LIABI LITY ON A PIECE OF PAPER AND SIGNING THE SAME MAY CONSTITUT E AN ASSESSMENT BUT ONLY ON ITS COMMUNICATION TO THE ASSESSEE IT BECOMES 'ORDER OF ASSESSMENT'. THUS, IN OUR CONSIDERED OPINION, TO BECOME A LEGAL VALID ORDER O F ASSESSMENT, ITS COMMUNICATION MUST BE WITHIN A PERI OD OF LIMITATION PRESCRIBED BY THE LAW THOUGH THE COMMUNICATION MAY END AFTER THE PRESCRIBED PERIOD O F LIMITATION. OUR ABOVE VIEW DERIVES SUPPORT FROM THE DECISION OF HON'BLE KARNAKATA HIGH COURT IN THE CAS E OF B J N HOTELS LTD (SUPRA), WHEREIN, IT HAS BEEN HELD A S UNDER: 'THAT THE REVENUE IS NEITHER ABLE TO POINT OUT FROM THE RECORDS THAT THE ASSESSMENT ORDERS WERE DISPATCHED ON 27.4.2007 NOR PRODUCED THE DISPATCH REGISTER TO EST ABLISH THAT THE ORDERS WERE COMPLETE AND EFFECTIVE I.E. IT WAS ISSUED, SO AS TO BE BEYOND THE CONTROL OF THE AUTHO RITY CONCERNED WITHIN THE PERIOD OF LIMITATION I.E. 29.4 .2007. ADMITTEDLY, THE ASSESSMENT ORDERS WERE SERVED ON TH E ASSESSEE ON 30.4.2007. HENCE, THE ASSESSMENT ORDERS PASSED WERE BARRED BY LIMITATION.' IN THE ABOVE DECISION, HON'BLE HIGH COURT FOLLOWS I TS ONE EARLIER DECISION AND HAS STATED AS UNDER: 20 'AN IDENTICAL ISSUE WAS BEFORE THIS COURT IN ITA NO.832/2008 (D.D. 14.10.2014 IN THE CASE OF MAHARAJ A SHOPPING COMPLEX VS DCIT. THIS COURT FOLLOWING THE JUDGMENT OF KERALA HIGH COURT IN THE CASE OF GOVERN MENT WOOD WORKS VS STATE OF KERALA (1988) 69 STC 62 HAS HELD THAT IN THE ABSENCE OF DISPATCH DATE MADE AVAILABLE TO THE COURT FROM THE RECORDS, TO PROVE THAT THE ORDER IS ISSUED WITHIN THE PRESCRIBED PERIOD, ORDER PASSED BY AO IS BARRED BY LIMITATION. THE SAID JUDGMENT SQUARELY APPLIES T O THE FACTS OF THE PRESENT CASE.' 13. TO THE SAME EFFECT ARE THE DECISIONS OF HON'BLE KERALA HIGH COURT, WHICH ARE IN THE CASE OF (I) K. JOSEPH JACOB VS AGRICULTURAL INCOME TAX OFFICER & ANOTHER (1991) 190 ITR 464 (KER) AND (II) COMMISSIONER OF AGRICULTURAL INC OME TAX OFFICER VS. KAPPUMALAI ESTATE , 234 ITR 187 (KER). 14. THE JODHPUR BENCH OF THIS TRIBUNAL ALSO HELD SI MILARLY IN THE CASE OF SHANTI LAL GODAWAT AND OTHERS VS. AC IT, REPORTED IN 126 TTJ (JD) 135. 15. IN VIEW OF ABOVE PLETHORA OF JUDICIAL PRECEDENT S, IN OUR CONSIDERED OPINION, THE DECISION OF HON'BLE CALCUTT A HIGH COURT RELIED UPON BY THE CIT(A) IN THE CASE OF BINA NI INDUSTRIES LTD., (SUPRA) WILL NOT DETER US AS IT IS A SETTLED POSITION OF LAW THAT WHEN TWO DIVERGENT VIEWS ARE EXPRESSED BY TWO DIFFERENT HON'BLE HIGH COURTS, NON E OF WHICH ARE HON'BLE JURISDICTIONAL HIGH COURT, THEN T HE VIEW FAVOURABLE TO THE ASSESSEE SHOULD BE FOLLOWED. FOR THIS, WE DERIVE SUPPORT FROM THE DECISION OF HON'BLE SUPR EME COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD ., 88 ITR 192 (SC). 16. COMING TO THE FACTS OF THE INSTANT CASE, IT IS NOT IN DISPUTE THAT THE LAST AUTHORISATION U/S.132 OF THE ACT WAS EXECUTED ON 28.5.2014. TWENTY- ONE MONTHS FROM THE END OF THE FINANCIAL YEAR 2014-2015 EXPIRES ON 31.12.2016. THEREFORE, THE ORDERS OF ASSESSMENT IN PURSUANCE TO THE SAID SEARCH FOR THE ASSESSMENT YEA RS 2009-2010 TO 2015-2016 WERE TO BE MADE ON OR BEFORE 31.12.2016. 17. IT IS NOT IN DISPUTE THAT THE ORDERS OF ASSESSM ENT UNDER CONSIDERATION WERE DISPATCHED ONLY ON 7.1.201 7. HENCE, IN OUR CONSIDERED OPINION, THE SAID ORDERS O F ASSESSMENT WERE TIME BARRED AND CONSEQUENTLY, WE SE T ASIDE THE SAME AND ALLOW THIS GROUND OF APPEAL OF T HE ASSESSEE FOR ALL THE SEVEN YEARS UNDER APPEAL.' 21 22. IN VIEW OF ABOVE, AS IN THE INSTANT CASE, THE COMMUNICATION PROCESS OF THE ASSESSMENT WAS NOT INITIATED ADMITTEDLY WITHIN THE PRESCRIBED PERIOD O F LIMITATION, HENCE IT DID NOT BECOME AN 'ORDER OF ASSESSMENT' WITHIN THE PERIOD OF LIMITATION. WE, TH EREFORE, HAVE NO HESITATION IN HOLDING THAT THE IMPUGNED ORD ER OF ASSESSMENT IS BARRED BY LIMITATION. 23. IN THE INSTANT CASE, THE ALLEGED APPROVAL LETTE R DATED 27.3.2015 OF THE ADDL. CIT, RANGE-1, BHUBANESWAR RE ADS AS UNDER: 'DESPITE A REMINDER GIVEN ON 19TH MARCH, 2015 TO SU BMIT THE TIME BARRING DRAFT ASSESSMENT ORDERS FOR APPROV AL U/S. 153D ON OR BEFOREJ23I03.2015, THE DRAFT ORDERS IN M /S. NEELACHAL CARBO METALICKS PVT. LTD. GROUP OF CASES HAS BEEN RECEIVED IN THIS OFFICE ONLY ON ILL 26TH MARCH , 2015 IN THE AFTERNOON. THE DRAFT ORDERS HAVING BEING SUBMIT TED ONLY 5 DAYS BEFORE FINAL ORDERS ARE GETTING BARRED BY LIMITATION,, I HAVE NO OTHER OPTION BUT TO ACCORD T HE APPROVAL TO THE SAME AS THE APPROVAL IS STATUTORILY REQUIRED U/S. 153D, EVEN THOUGH THERE IS NO TIME LE FT FOR UNDERSIGNED TO ENSURE THAT ALL THE POINTS RAISED IN THE APPRAISAL REPORT, THE APPELLATE PROCEEDINGS, AUDIT INSPECTION ETC. ARE DULY TAKEN INTO ACCOUNT, AND TH E ENQUIRIES AND INVESTIGATIONS THAT ARE REQUIRED TO B E MADE ARE ACTUALLY MADE BEFORE FINALIZATION OF THE ASSESS MENT ORDERS. IT WOULD HAVE BEEN MUCH BETTER AND IN THE INTEREST OF REVENUE, IF YOU HAD SUBMITTED THE DRAFT ORDERS ATLE AST ONE MONTH EARLIER SO AS TO ALLOW THE UNDERSIGNED SOMETIME TO GO THROUGH AND ANALYSE THE SAME VIS-A-V IS THE APPRAISAL REPORT AND SEIZED RECORDS. IT ALSO GO ES WITHOUT SAYING THAT YOU NEVER CARED EVEN TO DISCUSS THESE CASES WITH THE UNDERSIGNED FOR GUIDANCE AND LINE OF INVESTIGATION TO BE TAKEN. HOWEVER, DESPITE ALL THIS, I HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORDS AND SOME OF THE OBSERVATIONS, IN RESPECT OF THE FOLLOWING CASES ARE GIVEN IN SUBSEQUENT PARAS.' 24. IN OUR CONSIDERED VIEW, THE PROVISIONS CONTAINE D IN SECTION 153D AS ENACTED BY THE PARLIAMENT CANNOT BE TREATED AS AN EMPTY FORMALITY. THE PROVISION HAS CE RTAIN PURPOSE. IT IS APPARENT THAT THE PURPOSE BEHIND THE ENACTMENT OF THE ABOVE PROVISION IN THE STATUTE BY THE 22 PARLIAMENT ARE TWO FOLDS. FIRSTLY, THE APPROVAL OF THE SENIOR AUTHORITY WILL ENSURE THAT THE ASSESSEE IS N OT PREJUDICED BY THE UNDUE OR IRRELEVANT ADDITION OR ASSESSMENT. SECONDLY, THE APPROVAL BY SENIOR AUTHOR ITY WILL ALSO ENSURE THAT PROPER ENQUIRY OR INVESTIGATI ON ARE CARRIED OUT BY THE ASSESSING AUTHORITY. THUS, THE A BOVE PROVISION PROVIDES FOR MENTAL APPLICATION OF A SENI OR OFFICER OF THE DEPARTMENT, WHICH IN TURN, PROVIDES SAFEGUARD TO BOTH I.E. REVENUE AS WELL AS THE ASSES SEE. THEREFORE, THIS IMPORTANT PROVISION LAID DOWN BY TH E LEGISLATURE CANNOT BE TREATED AS A MERE EMPTY FORMA LITY. THE SAME VIEW WAS EXPRESSED BY THE PUNE BENCHES OF THE TRIBUNAL IN THE CASE OF AKIL GULAMALI SOMJI VS ITO, IN IT APPEAL NOS.455 TO 458 (PUNE) OF 2010 ORDER DATED 30.3.2012, WHEREIN, IT WAS HELD THAT WHEN THE APPRO VAL WAS GRANTED WITHOUT PROPER APPLICATION OF MIND, THE ORDER OF ASSESSMENT WILL BE BAD IN LAW. THE HON'BLE BOMBA Y HIGH COURT IN THE CASE OF CIT-II VS SHRI AKIL GULAM ALI SOMJI, IN INCOME TAX APPEAL (L) NO.1416 OF 2012 ORD ER DATED 15.1.2013 CONCURRED WITH THE VIEW OF THE TRIB UNAL THAT NOT FOLLOWING OF THE PROVISIONS OF SECTION 153 D OF THE ACT WILL RENDER THE RELATED ORDER OF ASSESSMENT VOI D. 25. IN THE INSTANT CASE, WE FIND THAT THE SUPERVISO RY AUTHORITY HAS HIMSELF ADMITTED THAT BECAUSE OF REAS ONS STATED BY HIM, COULD NOT APPLY HIS MIND AND HAS ACC ORDED THE APPROVAL MECHANICALLY TO MEET THE REQUIREMENTS OF LAW AS THE REQUIREMENT WAS MERELY A FORMALITY. THE SAID SUPERVISORY AUTHORITY HAD A DUTY TOWARDS BOTH THE ASSESSEE AS WELL AS THE REVENUE WHICH WAS FAILED TO BE PERFORMED IN THE INSTANT CASE. 26. FURTHER, WE FIND THAT THE APPROVING AUTHORITY H AS REQUIRED THE ASSESSING AUTHORITY TO CONDUCT FURTHER ENQUIRY IN RESPECT OF OPENING CASH IN HAND. THE ASS ESSING AUTHORITY THEREAFTER HAS NEVER COMMUNICATED HIS FIN DINGS OF THE FURTHER ENQUIRY TO THE SUPERVISORY AUTHORITY AND NOT TAKEN THE APPROVAL OF JUSTIFICATION OF HIS FIND INGS. THUS, IN OUR CONSIDERED OPINION, ALLEGED APPROVAL L ETTER DATED 27.3.2015 OF THE ADDL. CIT, RANGE1, BHUBANESW AR DOES NOT CONSTITUTE THE APPROVAL WHICH IS ENVISAGED BY THE PROVISIONS OF SECTION 153D OF THE ACT. THUS, FOLLOWING THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN TH E CASE OF AKIL GULAMALI SOMJI (SUPRA), WE HOLD THAT THE IM PUGNED ORDER OF ASSESSMENT IS VOID AND BAD IN LAW. THEREFO RE, THE IMPUGNED ORDER OF ASSESSMENT IS HEREBY CANCELLED AN D 23 GROUND NO.2 AND GROUND NO.4 OF APPEAL IN CASE OF BO TH THE ASSESSEES ARE ALLOWED.' 13. W E CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE ORDERS OF LOWER AUTHORITIES AND THE JU DICIAL PRECEDENCE AND APPLYING THE RATIO OF JUDGMENT OF AB OVE DECISION IN THE PRESENT CASE, FOUND THAT THE REASSE SSMENT ORDER IS DATED 30.03.2015 AND THE SAME WAS SERVED O N 06.04.2015, WHICH IS NOT DISPUTED BY THE REVENUE AN D WHICH IS SIMILAR FACTS OF THE DECISION OF COORDINAT E BENCH OF THE TRIBUNAL IN CASE OF GEETARANI PANDA (SUPRA), WHERE SERVICE OF ORDER IS BARRED BY LIMITATION. ACCORDINGLY, WE SET ASIDE THE ORDERS OF LOWER AUTHO RITIES AND ALLOW THE ADDITIONAL GROUNDS OF APPEAL OF THE ASSESSEE-TRINADH CHOWDARY FOR THE ASSESSMENT YEAR 2004-2005 IN IT(SS)A NO.44/CTK/2016. 5.3 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS ESPECIALLY THE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE IN THE PAPER BOOK AS MENTIONED ABOVE AND THE WRITTEN SUBMISSION S FILED BY BOTH THE PARTIES, ESPECIALLY THE WRITTEN SUBMISSIONS OF THE LD. CIT(DR) AND WE ARE OF THE CONSIDERED VIEW THAT IN THIS CASE THE ASSES SING OFFICER HAS PASSED THE ASSESSMENT ORDER ON 28.03.2013 AND ACCORDING TO THE EVIDENCE OF THE POSTAL AUTHORITY WHICH WE HAVE REPRODUCED UNDER PARA NO. 5.1 AT PAGE NO. 14 & 15 OF THIS ORDER. WE ARE ALSO OF THE VIEW THA T THE ASSESSMENT ORDER DATED 28.03.2013 HAS BEEN DISPATCHED ON 01.04.2013. THEREFORE, KEEPING IN VIEW OF THE ORDER DATED 27.09.2018 PASSED BY THE ITAT, CUTTACK BENCH IN IT(S)A NO. 44 TO 46/CTK/2016 (AYRS. 2004-05 TO 2 006-07) & ORS. IN THE CASE OF SRI TRINADH CHOWDARY VS. ACIT, CORPORAT E CIRCLE 1(2), BHUBANESWAR & ORS. REPRODUCED ABOVE, WE ARE OF T HE CONSIDERED VIEW THAT ASSESSMENT IN DISPUTE IS TIME BARRED, HENCE, R ESPECTFULLY FOLLOWING THE ITAT, CUTTACK BENCH DECISION IN THE CASE OF SRI TRI NADH CHOWDARY VS. ACIT (SUPRA), WE SET ASIDE THE ASSESSMENT ORDER AN D ALLOW THE GROUND NO. 1 RAISED BY THE ASSESSEE. SINCE WE HAVE DECIDED TH E LEGAL ISSUE RAISED VIDE GROUND NO. 1 IN FAVOUR OF THE ASSESSEE, THERE IS NO NEED TO ADJUDICATE OTHER 24 GROUNDS RAISED BY THE ASSESSEE. IN THE RESULT, TH E APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 6. SINCE IN OTHER ITA NO. 3557/DEL/2015 (AY 2011-12 ), SIMILAR FACTS ARE PERMEATING THEREFORE, MY FINDING GIVEN ABOVE WILL APPLY MUTATIS MUTANDIS IN THIS APPEAL ALSO, BECAUSE THE FACTS AND CIRCUM STANCES OF THE CASE ARE EXACTLY THE SAME, HENCE, THIS APPEAL IS A LSO PARTLY ALLOWED. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE A SSESSEE STAND PARTLY ALLOWED. ORDER PRONOUNCED ON 08-02-2019. SD/- SD/- (L.P. SAHU) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 08-02-2019 SR BHATNAGAR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR, ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI