ACIT, Cuttack V. M/s Orissa Stevedores Ltd, Cuttack

ITA 409/CTK/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52445 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2011
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 16-12-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 28-09-2011
• Court: TRIBUNAL
• Keywords: Period of limitation; Assessment record; Time period of passing order
• Section: 153A

Judgement Text

IN THE INC O ME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, AM , AND SHRI K.S.S.PRASAD RAO, JM ITA NO. 409,410,411/CTK/2011 AND C.O.NOS.30,31 AND 32/CTK/2011 ( AYS 2002 - 03, 2003 - 04 & 2004 - 05) (C.OS. FILED BY THE ASSE SSEE) ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(2), CUTTACK. VERSUS M/S.ORISSA STEVEDORES LTD., O.S.L. TOWER, LINK ROAD, CUTTACK. PAN: AAACO 2100 L (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SMT. PARAMITA TRIPATHY,DR FOR THE RESPONDENT SHRI P.R.MOHAN TY/SASWAT ACHARYA,ARS DATE OF HEARING : 16.12.2011 DATE OF PRONOUNCEMENT : 22.12.2011 ORDER PER BENCH : ALL THESE APPEALS ARE FILED BY THE DEPARTMENT, WHEREAS THE CROSS OBJECTIONS ARE FILED BY THE ASSESSEE ON THE ORDER OF THE COMMISSIONER OF I NCOME - TAX (APPEALS) FOR THE ASSESSMENT YEARS 2002 - 03, 2003 - 04 & 2004 - 05 IN CASE OF THE ASSESSEE. 2. THE DEPARTMENT HAS RAISED THE FOLLOWING ISSUES IN ALL THESE APPEALS UNIFORMLY. 01. THE LD. CIT(A) WAS NOT AT ALL JUSTIFIED TO HOLD THAT THE ASSESSMENT ORDE R MADE ON 29.12.2009 ALONG WITH THE DEMAND NOTICE DATED 29.12.2009 WAS BARRED BY LIMITATION U/S.153(1) OF THE I.T.ACT ON THE GROUND THAT SUCH ORDER AND DEMAND NOTICE WAS NOT SERVED ON THE ASSESSEE WITHIN THE PERIOD OF LIMITATION AS PRESCRIBED U/S.153(1) OF THE 1T.ACT.1961. 0 2 . THE LD.CI T(A) WAS TOTALLY ERRONEOUS IN HIS FINDING IN SO FAR AS THE CORRECT IMPLICATION OF SECTION 153(L) OF THE I.T.ACT 1961 WAS CONCERNED WHICH INCIDENTALLY PROVIDES T HAT NO ORDER OF ASSESSMENT SHALL HE MADE U/S. 143 OR 14 4 AT AN Y TI ME AFTER THE EXPIRY OF 21 MONTHS FROM THE END OF THE FINANCIAL YEAR INCOME WAS FIRST ASSESSABLE . 03. THE CI T(A) WAS GROSSLY IN ERROR TO IGNORE THE SPECIFIC STATUTORY PROVISION OF SECTION OF 153(1) IN WHICH THE WORDS ITA NO.409,410,411/CTK/2011 C.O.NOS.30,31 AND 32/CTK/2011 2 SPECIFIED ARE SHALL BE MADE AND NOWHERE EXPLICITLY OR IMPLICITLY THE TERM SHALL HE SERVED - HAS BEEN MEN TIONED. 04. THE LD.CIT(A) WAS GROSSLY IN ERROR TO I MPORT THE CONDITION THAT ASSESSMENT ORDER MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1 53(1) SHALL BE VALID ONLY WHEN SUCH ASSESSMENT ORDER AND DEMAND NOTICE ARE A L SO SERVED ON THE ASSESSEE WITHIN THE PERIOD PRESCRIBED U/S. 133(1) O F THE I.T. ACT 1961. 05. THE LD. APPELLATE AUTHORITY WAS NOT JUSTIFIED TO IGNORE THE LEGISLATIVE INTENT SPECIFIED IN SECTIONS 143(2)/148/156(1) AND OTHER SECTIONS IN WHICH IT IS STATED THAT THE ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE AS COMPARED TO THE SPECIFICATION STATED IN SECTION 153(L). THE LEGISLATURE IN ITS WISDOM HAS NOT USED THE TERM SHALL B E SERVED ON THE ASSESSEE U/S. 153(1) F O R ANY ASSESSMENT ORDER OR DEMAND NOTICE. 06. THE LD.CIT(A) WAS NOT AT ALL JUSTIFIED IN NOT PROVIDING ANY OPPORTUNITY TO THE ASSESSING OFFICER TO PRODUCE MATERIAL EVIDENCES DURING THEAPPELLANT PROCEEDINGS SO AS TO PROVE THAT THE ASSESSMENT ORDER WAS MADE/P ASSED ON OR BEFORE 31 ST DECEMBER, 2009 WHICH IS PRESCRIBED LIMITATION TIME FOR MAKING/PASSING SUCH ORDER. 07. THE LD.CIT(A) WAS NOT JUSTIFIED TO EXCLUSIVELY RELY ON THE RATIO OF DECISION OF THE HONBLE ITAT, JODHPUR BENCH IN THE CASE OF SHANTI LAL GODAW AT AND OTHERS VRS. ACIT REPORTED IN 126 TTJ JD 135 WHICH RELATED TO THE PROVISIONS OF SECTION 153A & 153B OF THE 1.T.ACT 1961 BUT NOT RELATED TO PROVISION OF SECTION 153(1) OF THE I.T.ACT. 08. THE LD.CIT(A) WAS CERTAINLY NOT JUSTIFIED TO IGNORE THE RATIO OF DECISION OF THE HONBLE APEX COURT OF IN THE CASE OF R.K.UPADHYAYA VS SHANAHHAI P.PATEL REPORTED IN 166 ITR 163 IN WHICH THE HONBLE COURT HAS MADE A CLEAR DISTINCTION BETWEEN ISSUE OF NOTICE AND SERVICE OF NOTICE AND ALSO HAS LAID DOWN ITA NO.409,410,411/CTK/2011 C.O.NOS.30,31 AND 32/CTK/2011 3 THE PRINCI PLE THAT SERVICE OF NOTICE UNDER I.T.ACT 1961 IS NOT A CONDITION PRECEDENT TO CONFERMENT OF JURISDICTION ON THE INCOME TAX OFFICER TO DEAL WITH THE MATTER BUT IS A CONDITION PRECEDENT TO THE MAKING OF THE ORDER OF ASSESSMENT. THE LD.CIT(A) FAILED TO APPLY SUCH BASIC PRINCIPLE OF THE STATUTORY PROVISIONS OF SECTION 153(1) REGARDING MAKING AN ASSESSMENT ORDER AND SERVICE OF ASSESSMENT ORDER WITHIN THE PRESCRIBED PERIOD OF LIMITATION. 09. THE LD.CIT(A) WAS ALSO IN ERROR TO TOTALLY IGNORE THE RATIO OF DECISIO N GIVEN BY HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF KODICASU APPALASWAMY AND SURYANARAYANA VRS COMMISSIONER OF INCOME TAX (A.P) REPORTED IN 46 ITR 735 IN WHICH THEIR LORDSHIPS HAD HELD - WHERE AN ORDER OF ASSESSMENT HAS BEEN PASSED WITHIN THE PERIOD OF LIMITATION THE DATE ON WHICH ORDER OF ASSESSMENT AND DEMAND NOTICE IS SERVED IS NOT AT ALL MATERIAL. 10. THE LD.CIT(A) WAS ALSO NOT JUSTIFIED TO IGNORE THE RATIO OF DECISION OF HONBLE GAUHATI HIGH COURT IN THE CASE OF RAMANAND AGARWALLA V RS. COMMIS SIONER OF INCOME - TAX , NORTH EASTERN REGION, SHILLO N G REPORTED IN 151 ITR 216 IN WHICH THEIR LORDSHIPS HAD HELD THAT AS PER SUB SECTION 1 OF SECTION 153 OF THE I.T.ACT,1961, THE ASSESSING OFFICER IS REQUIRED TO PASS AN ORDER OF ASSESSMENT WITHIN THE LIMI TATION PERIOD. IT DOES NOT REQUIRE THAT THE DEMAND NOTICE AND ASSESSMENT ORDER SHALL ALSO BE ISSUED WITHIN THAT LIMITATION PERIOD. THE HONBLE HIGH COURT HAS CLEARLY DISTINGUISHED THE LEGISLATIVE INTENT REGARDING MAKING OF ASSESSMENT ORDER AND SERVICE OF D EMAND NOTICE.IN OTHER WORDS, THE STATUTE REQUIRES THE I.T.AUTHORITY TO SERVE ANY NOTICE OF DEMAND U/S.156 OF THE I.T.ACT ON THE ASSESSEE NOT NECESSARILY WITHIN THE PERIOD OF LIMITATION U/S.153(1) OF THE I.T.ACT. 11. THE LD. CIT(A) WAS NOT JUSTIFIED TO IG NORE TO ADJUDICATE THE SUBSTANTIVE GROUNDS OF APPEAL ON MERITS. ITA NO.409,410,411/CTK/2011 C.O.NOS.30,31 AND 32/CTK/2011 4 3. THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE RAISING THE ISSUES IN THE WAY SUPPORTING THE IMPUGNED ORDERS OF THE LEARNED CIT(A) AND THEY ARE ALSO COMMON, AS NOTED HERE UNDER : 1. THAT THE IMPUGNED ORDER DTD. 26.07.2011 PASSED BY THE LD. CIT(A) , CUTTACK RELATING TO I.T.APPEAL NO.14/2010 - 11 PREFERRED BY THE PRESENT RESPONDENT FOR THE ASSESSMENT YEAR 2002 - 03, IS COMPLETELY JUSTIFIED AS WELL AS REASONED, AND IS ALSO IN CONSONANCE WITH THE LAW LAID DOWN BY THE VARIOUS AUTHORITIES CITED BY THE RESPONDENT BEFORE THE LD. CIT(A). 2. THAT THE LD. CIT(A) HAS RIGHTLY CONCLUDED THAT THE SUBJECT ASSESSMENT ORDER PASSED U/S.144/147 IS BARRED BY LIMITATION AND THUS DESERVED TO BE DECLARED NON EST. 4 . ON CAREFUL CONSIDERATION OF THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL AND ANALYZING THE SAME IN THE LIGHT OF THE SUBMISSIONS OF BOTH THE PARTIES, THE UNDISPUTED FACTS RELATING TO THE ISSUES ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN SEVERAL BUSINESS A CTIVITIES LIKE STEVEDORING, TRANSPORT CONTRACT, MINING CONTRACTS AS WELL AS TRADING IN MINERAL ORES ETC. IT ALSO RAISED INCOME FROM HOUSE PROPERTY AS WELL AS INTEREST INCOME. THE ASSESSEE FILED RETURNS FOR THE RESPECTIVE PERIODS AND THOSE WERE PROCESSED U/ S.143(1). LATER ON THEY WERE TAKEN UP FOR SCRUTINY AND ASSESSMENT ORDERS WERE PASSED. AGGRIEVED BY THOSE ASSESSMENT ORDERS, THE ASSESSEE WENT IN APPEAL BEFORE THE LEARNED CIT(A) AND GOT RELIEF. 5. THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENTS U/S.148 GIVING NECESSARY STATUTORY NOTICES AND RAISED DEMAND AGAINST THE ASSESSEE. LATER ON THE CASES WERE TRANSFERRED TO ASST. COMMISSIONER OF INCOME - TAX , CIRCLE 2(2), CUTTACK BY JURISDICTIONAL ORDER PASSED BY THE ASST. COMMISSIONER OF INCOME TAX DT.12.6.2009. ACCORDINGLY NOTICE U/S.142(1) WAS ISSUED AND SERVED ON THE ASSESSEE BUT THERE WAS NO RESPONSE FROM THE ASSESSEE. LATER ON THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S.271(1)(B) OF THE ITA NO.409,410,411/CTK/2011 C.O.NOS.30,31 AND 32/CTK/2011 5 I.T.ACT FOR THE FAILURE ON THE PART OF THE ASSESSEE TO COMPLY WITH THE STATUTORY NOTICE. THEREAFTER THE ASSESSING OFFICER DECIDED TO MAKE THE ASSESSMENT U/S.144/147 FOR ALL THESE AYS PASSING THE ASSESSMENT ORDERS. 6. AGGRIEVED BY THESE ASSESSMENT ORDERS, THE ASSESSEE WENT IN APPEALS BEFORE THE CIT(A) AND THE LEARNED CIT(A) AFTER HEARING THE ASSESSEE AND CONSIDERING THE ASSESSMENT RECORDS AND THE VIEW OF THE ASSESSING OFFICER AND ON THREAD BARE SCRUTINY OF THE CITATIONS RELIED ON BY THE ASSESSEE HAS PASSED THE IMPUGNED ORDERS HOLDING THAT THE ASSESSMENTS MADE BY THE A SSESSING OFFICER FOR THESE AYS ARE BARRED BY LIMITATION AND HE CONSEQUENTLY F O UND THAT THE SAID ASSESSMENT ORDERS ARE NONEST AND INEFFECTIVE IN LAW. 7. AGGRIEVED WITH THE SAID ORDERS OF THE LEARNED CIT(A), THE DEPARTMENT IS IN APPEALS, WHEREAS THE ASSESSE E HAS FILED CROSS OBJECTIONS SUPPORTING THE IMPUGNED ORDERS OF THE LEARNED CIT(A). 8. DURING THE COURSE OF HEARING, THE LEARNED DR VEHEMENTLY CONTENDED THAT THE ORDERS OF THE LEARNED CIT(A) ARE UNSUSTAINABLE FOR LEGAL SCRUTINY AS THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDERS WITHIN THE PRESCRIBED TIME LIMIT PRESCRIBED IN THE STATUTE. THE SERVICE OF THE SAID ORDERS TO THE ASSESSEE IS NOT ALL CONTEMPLATED IN THE ACT. HENCE, THE LEARNED CIT(A) WENT WRONG IN OBSERVING THAT COMMUNICATION OF ORDER IS A C ONDITION PRECEDENT FOR AN ORDER OF ASSESSMENT BECOMING EFFECTIVE. APART FROM THAT THE LEARNED DR HAS RELIED ON THE FOLLOWING DECISIONS. 1. KODIDASU APPALASWAMY AND SURYANARAYANA VS. COMMISSIONER OF INCOME TAX, A. P [ 46 ITR 735 (AP)]; 2. RAMANAND AGARWALL A VS. COMMISSIONER OF INCOME TAX, NORTH EASTERN REGION, SHILLONG. [151 ITR 216 (GAU.)]; 3. K.U.SRINIVASA RAO V. COMMISSIONER OF WEALTH - TAX [46 CTR 256: 152 ITR 128 (AP)]; 4. INDIA FERRO ALLOY INDUSTRY PVT. LIMITED VS. COMMISSIONER OF INCOME TAX [202 IT R 671 (CAL)] ITA NO.409,410,411/CTK/2011 C.O.NOS.30,31 AND 32/CTK/2011 6 5. PREM NATH MOTORS (P) LTD., V. COMMISSIONER OF SALES TAX (COPY PLACED ON PB ON PAGES 24 - 28); 6. DECISION OF ITAT, KOKLATA IN THE CASE OF ELKOM ENTERPRISES PVT.LTD. V. INCOME - TAX OFFICER IN ITA NO.1081/KOL/2009 DT.30.4.2010 (COPY PLACED ON PB ON PAGES 29 - 40); 7. DECISION OF ITAT, CUTTACK IN THE CASE OF TORSTEEL LIMITED V. ASST.COMMISSIONER OF INCOME - TAX IN ITA NO.059/CTK/2011 DT.17.06.2011 (COPY PLACED ON PAES 41 - 49). THE LEARNED DR RELYING ON THE ABOVE JUDICIAL PRONOUNCEMENTS HAS ASSAILE D THE ORDERS PASSED BY THE LEARNED CIT(A) AND SOUGHT FOR SETTING ASIDE THE SAME BY ALLOWING THE DEPARTMENTS APPEALS. 9. CONTRARY TO THIS, THE LEARNED AR OF THE ASSESSEE HAS CONTENDED THAT THE CITATIONS RELIED ON BY THE LEARNED DR ARE NOT AT ALL APPLICABLE TO THE FACTS OF THE PRESENT CASES ON HAND AS THEY ARE DISTINGUISHABLE ON FACTS. THUS CONTENDED, HE DISTINGUISHED THE FACTS OF THOSE CASES FROM THE CASES ON HAND. HE FURTHER SUBMITTED THAT THE ORDERS OF THE LEARNED CIT(A) ARE WELL REASONED AND IN ACCORDANC E WITH THE JUDICIAL PRONOUNCEMENTS RELIED N BY THE LEARNED CIT(A) AND HENCE, THE IMPUGNED ORDERS OF THE LEARNED CIT(A) DO NOT INFIRM IN ANY WAY REQUIRING INTERFERENCE SINCE THE CITATIONS RELIED ON BY THE LEARNED DR ARE DISTINGUISHABLE ON FACTS AND CANNOT B E APPLICABLE TO THE FACTS OF THE PRESENT CASES. THEREFORE, HE SOUGHT FOR UPHOLDING THE ORDERS OF THE LEARNED CIT(A) BY DISMISSING THE APPEALS OF THE DEPARTMENT AND ALLOWING THE CROSS OBJECTIONS FILED BY THE ASSESSEE. 10. ON CAREFUL ANALYSIS OF THE IMPUGNED ORDERS PASSED BY THE LEARNED CIT(A), IT IS FOUND THAT THE ASSESSMENT ORDERS WERE PASSED AND THEY WERE SENT FOR SERVICE TO THE ASSESSEE. THE ASSESSMENT ORDERS WERE SENT BEFORE THE EXPIRATION OF THE LIMITATION PERIOD PRESCRIBED IN THE ACT FOR PASSING THE AS SESSMENT ORDERS BUT THE SAID ORDERS WERE SENT FOR COMMUNICATION TO THE ASSESSEE AFTER THE EXPIRY OF THE TIME LIMIT FOR PASSING THE ASSESSMENT ORDERS. NOW COMING TO THE FACT DATES OF PASSING OF THE ASSESSMENT ORDERS AND ITA NO.409,410,411/CTK/2011 C.O.NOS.30,31 AND 32/CTK/2011 7 SERVICE THEREOF TO THE ASSESSEE, IT I S FOUND THAT THE ASSESSMENTS WERE PASSED ON 29.12.2009 BUT THEY WERE SERVED TO THE ASSESSEE ON 26.3.2010 I.E., AFTER THREE MONTHS APPROXIMATELY. BASING ON THIS DELAYED SERVICE, THE LEARNED AR OF THE ASSESSEE CONTENDED THAT THE PROVISIONS AS CONTEMPLATED IN SECTION 153(2) OF THE INCOME - TAX ACT,1961 CLEARLY MANDATES THAT THE ASSESSMENT BE MADE AFTER THE PERIOD OF LIMITATION. THIS PROVISION WAS INTERPRETED BY VARIOUS JUDICIAL FORUMS INCLUDING HONBLE APEX COURT AND HONBLE KERALA HIGH COURT AND ITAT, JODHPUR B ENCH HOLDING THAT THE PROVISION REQUIRES THAT IN ORDER TO BE EFFECTIVE, THE ASSESSMENT ORDER BE PASSED NOT ONLY BE PASSED BEFORE THE EXPIRY OF THE LIMITATION BUT ALSO BE COMMUNICATED TO THE ASSESSEE BEFORE EXPIRATION OF THE LIMITATION PERIOD. HE FURTHER CO NTENDED THAT EVEN BEFORE THE TRIBUNAL ALSO THE DEPARTMENT IS NOT ABLE TO SHOW OR EXPLAIN AS TO WHY SO MUCH DELAY APPROXIMATELY OF 3 MONTHS WAS TAKEN IN SERVICE OF ORDERS TO THE ASSESSEE WHEN THE ASSESSEE HAVING ITS OFFICE OPPOSITE THE INCOME - TAX OFFICERS OFFICE JUST BY CROSSING A ROAD. THIS ITSELF IMPLIES THAT THE AO HAS NOT PASSED THE ORDER ON THE DATE MENTIONED IN THE ASSESSMENT ORDER. HE MIGHT HAVE PASSED IT AT A LATER DATE AND ISSUED A COPY OF THE ORDERS ALONG WITH DEMAND NOTICE ETC., FOR SERVICE ON T HE ASSESSEE AFTER EXPIRY OF THREE MONTHS FROM THE DATE OF END OF THE LIMITATION PROVIDED UNDER THE ACT. IT IS HELD BY THE JUDICIAL FORUMS THAT SUCH A SERVICE DOES NOT SUPPORT THE ORDER HAVING PASSED THE ORDERS BEFORE THE TIME LIMIT PROVIDED IN THE ACT AS T HE SERVICE WAS MADE AFTER THE EXPIRY OF THE LIMITATION PERIOD AND IN THE PRESENT CASE AFTER A LONG PERIOD APPROXIMATELY THREE MONTHS. THEREFORE, THE LEARNED CIT(A) HAS RIGHTLY HELD THAT THE ASSESSMENTS ARE BARRED BY LIMITATION AND HENCE, THEY ARE NONEST AN D INEFFECTIVE IN LAW. ACCORDINGLY, HE SOUGHT FOR DISMISSING THE APPEALS OF THE DEPARTMENT AND ALLOW THE CROSS OBJECTIONS OF THE ASSESSEE. ITA NO.409,410,411/CTK/2011 C.O.NOS.30,31 AND 32/CTK/2011 8 11. ON CAREFUL ANALYSIS OF THE ORDERS PASSED BY THE DEPARTMENTAL AUTHORITIES IT IS FOUND THAT THE LEARNED CIT(A) HAS F OUND FROM THE ASSESSMENT RECORD THAT THE ASSESSMENT ORDERS WERE PASSED BY THE ASSESSING OFFICER ON 29.12.2009 AND DEMAND NOTICE U/S.156 DT.29.12.2009 AND ORDERS OF ASSESSMENT AND DEMAND NOTICES WERE SERVED ON THE ASSESSEE ON26.3.2010. NOTICE U/S.274(1)(B) WAS SIGNED BY THE ASSESSING OFFICER ON 29.12.2009 ASKING THE ASSESSEE TO APPEAR BEFORE HIM ON 16.4.2010. THE SAID NOTICE WAS SENT BY THE ASSESSING OFFICER ON 29.12.2009 . THESE NOTICES WERE ALSO RECEIVED BY THE ASSESSEES REPRESENTATIVE ON 26.3.2010. WE FUR THER FUND THAT THERE IS NO MATERIAL IN THE ASSESSMENT RECORD WHICH COULD INDICATE THAT INITIATIVE WAS TAKEN BY THE ASSESSING OFFICER TO SERVE THE ASSESSMENT ORDERS ALONG WITH DEMAND NOTICE IMMEDIATELY AFTER PASSING OF THE ASSESSMENT ORDERS ON 29.12.2009. T HEREAFTER, THE LEARNED CIT(A) CONSIDERED THE JUDICIAL PRONOUNCEMENTS RELIED ON BY THE ASSESSEE AS FOLLOWS : 1. K.JOSEPH JACOB V. AGRICULTURAL INCOME TAX OFFICER & ANOTHER (1991) 190 ITR 464 (KER), WHEREIN IT WAS HELD THAT THE ORDER OF ASSESSMENT COMES INT O FORCE ONLY WHEN IT IS COMMUNICATED. THIS IS NOT ONLY BY REASON OF SECTION 30 OF THE KERALA AGRICULTURAL INCOME TAX ACT,1950 BUT ALSO FOR A MORE FUNDAMENTAL REASON, NAMELY THAT A PARTY AGAINST WHOM AN ORDER IS MADE MUST BE PUT ON NOTICE OF THAT ORDER. TH E DATE OF MAKING OR SIGNING THE ORDER IS NOT DETERMINATIVE OF ITS EFFECT. AT THAT STAGE, THE ORDER IS ONLY UNILATERAL IN A SENSE AND NOT IRREVOCABLE; IT BECOMES BILATERAL OR BINDING ONLY ON COMMUNICATION. 2. IN THE CASE OF COMMISSIONER OF AGRICULTURAL INCO ME TAX V.KAPPUMALAI ESTATE (234 ITR 187), HONBLE KERALA HIGH COURT HAS TAKEN A SIMILAR VIEW. 3. IN SHANTI LAL GODAWAT AND OTHERS V.ACIT (126 TTJ (JD) 135), ITA NO.409,410,411/CTK/2011 C.O.NOS.30,31 AND 32/CTK/2011 9 ITAT, JODHPUR BENCH THE ASSESSMENT ORDER THOUGH PASSED ON 28.12.2007 IT WAS DESPTACHED TO THE ASSES SEE ON 2.1.2008 AND ACCORDINGLY SERVED ON THE ASSESSEE. THE TRIBUNAL HELD THAT THE LAST DATE OF PASSING THE ORDER BEING 31.12.2007 , THE ASSESSMENT ORDERS SERVED ON 2.1.2008 WERE BEYOND THE PERIOD OF LIMITATION AND AS SUCH, THE ASSESSMENT ORDERS ARE NON EST AND INEFFECTIVE UNDER LAW. 4. HONBLE APEX COURT IN THE CASE OF B.J.SHELAT V. STATE OF GUJARAT, REPORTED IN AIR 1978 SC 1109, HELD THAT AN ORDER TAKES EFFECT ONLY ON COMMUNICATION. 5. IN THE CASE OF MOHENDRA J.THACKER & CO., V. CIT (139 ITR 793) (CAL)], JUSTICE SABYASACHI MUKHARJI AS HE WAS THEN HELD THAT COMMUNICATION IS A CONDITION PRECEDENT TO AN ORDER OF ASSESSMENT BECOMING EFFECTIVE. THEREFORE, THE LEARNED CIT(A) HAS COME TO THE CONCLUSION THAT THE ASSESSMENT ORDERS IN THESE CASES THOUGH MADE N 29.1 2.2009, THOSE WERE SERVED ON THE ASSESSEE NO 26.3.2010 I.E., AFTER 85 DAYS FROM THE DATE OF ORDER. SINCE THE CONDITION PRECEDENT TO AN ORDER OF ASSESSMENT BEING EFFECTIVE AND THERE IS DELAY OF 85 DAYS IN SERVING THE ASSESSMENT ORDERS ALONG WITH DEMAND NOT ICES THE LEARNED CIT(A) HELD THAT THE ASSESSMENT ORDERS FOR THESE AYS ARE BARRED BY LIMITATION AND ACCORDINGLY THEY WERE HELD INEFFECTIVE AND NON - EST IN LAW. 12. NOW COMING TO THE JUDICIAL PRONOUNCEMENTS RELIED ON BY THE LEARNED DR, IT IS FOUND THAT THE TR IBUNALS ORDER OF JODHPUR BENCH WAS APPEA L ED BEFORE THE HONBLE RAJSTHAN HIGH COURT AND IT IS PENDING ADJUDICATION, BUT IT IS NOT THE CASE OF THE DEPARTMENT THAT THE HONBLE HIGH COURT HAS STAYED THE OPERATION OF THE SAID ORDER OF THE ITAT. 13. IN THE CASE OF KODIDASU APPALASWAMY & SURYANARAYANA (SUPRA), THE ITA NO.409,410,411/CTK/2011 C.O.NOS.30,31 AND 32/CTK/2011 10 ASSESSMENT ORDER WAS PASSED ON 29.3.1957 AND SERVED ON THE ASSESSEE ALONG WITH DEMAND NOTICE ON 6.4.1957 HAVING DELAY OF SIX DAYS ONLY. BUT IN THE PRESENT CASE ON HAND, THERE IS DELAY OF 85 DAYS THAT T OO UNEXPLAINED BEFORE THE TRIBUNAL AND NO MATERIAL IS AVAILABLE IN THE ASSESSMENT RECORD AS CAN BE SEEN FROM THE OBSERVATION OF THE LEARNED CIT(A) IN HIS IMPUGNED ORDERS. 14. IN THE CASE OF RAMANAND AGARWALLA V. CIT (SUPRA), THE ASSESSMENT ORDER IS DT.16.3 .1968 BUT SERVED ON THE ASSESSEE ON 13.4.1968 WITH A DELAY OF 13 DAYS. BUT IN THIS CASE THE DEMAND NOTICE WAS DT.13.4.68 AND IT WAS SERVED ON THE ASSESSEE ON 13.4.68 ALONG WITH THE ASSESSMENT ORDER. 15. IN THE CASE OF K.U.SRINIVASA RAO V. CWT (SUPRA), THE ISSUE INVOLVED IS THAT THE ASSESSMENT ORDER DT.31.7.7.1979 WAS SERVED ON 31.7.1979 IS BARRED BY LIMITATION OR NOT. HERE ALSO THE DELAY IS ONLY 20 DAYS APPROXIMATELY. 16. IN THE CASE OF INDIA FERRO ALLOY INDUSTRY PVT. LTD. V. CIT (SUPRA), HONBLE CALCUTTA H IGH COURT HAS CONSIDERED THE ISSUE OF ASSESSMENT ORDER PASSED ON 15.4.1980 SERVED ON 22.10.1980 WITH A DELAY OF SEVEN DAYS. 17. IN THE CASE OF PREM NATH MOTORS (P) LTD V. COMMISSIONER OF SALES TAX (SUPRA), HONBLE DELHI HIGH COURT HAS CONSIDERED THE ISSUE WHETHER THE ASSESSMENT ORDER SHOULD BE BARRED BY LIMITATION JUST BECAUSE THE DEMAND NOTICE WAS SERVED ON THE ASSESSEE BEYOND THE TIME BARRED PERIOD. 18. IN THE CASE OF ELKOM ENTERPRISES PVT. LTD., V. INCOME - TAX OFFICER, ITAT, KOLKATA BENCH (SUPRA), THE ISS UE INVOLVED IS THAT THE ASSESSMENT ORDER AND THE DEMAND NOTICE DT.27.12.2007 SERVICED ON 7.4.2008 IS WHETHER BARRED BY LIMITATION OR NOT. IN THIS CA S E THE FACTS ARE THAT THE AYS ARE INVOLVED 2005 - 06 AND 2006 - 07. FOR THE ASSESSMENT YEAR 2006 - 07, THE ASSESSM ENT ORDER WAS GENERATED ON 8.2.2008 ON THE BASIS OF RETURN AFTER ADJUSTMENT AGAINST DEMAND THAT HAS ARISEN FROM THE ASSESSMENT ORDER RELATING TO THE AY 2005 - ITA NO.409,410,411/CTK/2011 C.O.NOS.30,31 AND 32/CTK/2011 11 06. THIS SOWS THAT THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2005 - 06 WAS PASSED ON 8.2.2008 AND THE ASSESSMENT RECORDS FOR ASSESSMENT YEAR 2006 - 07 REVEALED THAT THE ASSESSMENT ORDER WAS PASSED N 15.1.2008 GENERATING A REFUND ORDER. FURTHER VERIFICATION OF THE ASSESSMENT RECORD REVEALED THAT THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2005 - 06 WAS IN EXIS TENCE ON 15.1.2008. IN THIS PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, ITAT, KOLKATA BENCHES THAT THE ASSESSMENT ORDER WAS VERY MUCH READY ON 15.1.2008. 19. IN THE CASE OF TORSTEEL LIMITED V. ASST.COMMISSIONER OF INCOME - TAX (SUPRA), ITAT, CUTTACK BENCH ES HAS CONSIDERED THE ISSUE WHETHER THE ASSESSMENT ORDER DT.26.11.2007 SERVED ON 24.2.2010 IS BARRED BY LIMITATION. IN THIS CASE, THE BENCH HAS HELD THAT THE ASSESSMENT ORDER DESPTACHED DELAY OF ABOVE TWO YEARS WAS NOT BARED BY LIMITATION. THE DEMAND NOTIC E HAD ALREADY BEEN SENT TO THE ASSESSEE ON 31.3.2008 WHICH IS AMPLY CLEAR THAT THERE WAS A DEMAND NOTICE WHICH WILL ARISE OUT OF THE ASSESSMENT ORDER. THIS PROVES THAT THE SAID ASSESSMENT ORDER WAS PASSED WITHIN THE PERIOD OF LIMITATION. 20. ON COMPARISON OF THE PRESENT FACTS AND CIRCUMSTANCES AVAILABLE IN THE PRESENT CASE ON HAND, THE FACTS AND CIRCUMSTANCES OF THE ABOVE CASES ARE DISTINGUISHABLE MORE SO WHEN THE DEMAND NOTICE AND ASSESSMENT ORDERS IN THE PRESENT CASE WERE SERVED ON THE SAME DAY I.E., 26.3 .2010 THOUGH THEY WERE PURPORTEDLY MADE ON 29.12.2009. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE APEX COURT RENDERED IN THE CASE OF B.J.SHELAT V. STATE OF GUJARAT (SUPRA) AS WELL AS THE DECISION OF HONBLE KOLKATA HIGH COURT RENDERED IN THE CASE OF MOHENDRA J.THACKER & CO., V. CIT (SUPRA), WHICH HAVE CATEGORICALLY HELD THAT THE COMMUNICATION IS A CONDITION PRECEDENT TO AN ORDER OF ASSESSMENT BECOMING EFFECTIVE, AND ALSO IN FOLLOWING THE ITA NO.409,410,411/CTK/2011 C.O.NOS.30,31 AND 32/CTK/2011 12 DECISION OF HONBLE KERALA HIGH COURT IN THE CASE OF K. JOSEPH JACOB V. AGRICULTURAL INCOME TAX OFFICER (SUPRA) DEALING WITH SECTION 35(2) OF THE AGRICULTURAL INCOME TA ACT SIMILAR WORDED AS IN SECTION 153 OF THE I.T.ACT,1961, WE ARE OF THE CONSIDERED VIEW THAT THE VIEW TAKEN BY THE ITAT, JODHPUR BENCH IN THE C ASE OF SHANTI LAL GODAWAT & OTHERS V. ASST.COMMISSIONER OF INCOME - TAX [126 TTJ (JD) 135] BEING THE RULE OF PRECEDENCE BASED ON THE APEX COURTS JUDGMENT STATED SUPRA, THE IMPUGNED ORDERS PASSED BY THE LEARNED CIT(A) IN THE PRESENT APPEALS ARE PERFECTLY V ALID AND SUSTAINABLE FOR LEGAL SCRUTINY. ACCORDINGLY, WE UPHOLD THE SAME BY DISMISSING ALL THE DEPARTMENTAL APPEALS. SINCE THE CROSS OBJECTIONS OF THE ASSESSEE ARE SUPPORTING THE ORDERS PASSED BY THE LEARNED CIT(A) AND IN VIEW OF UPHOLDING THE CIT(A)S ORD ERS AS STATED SUPRA, THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISPOSED OF ACCORDINGLY. 21. IN THE RESULT, ALL THE APPEALS OF THE DEPARTMENT ARE DISMISSED AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISPOSED OF ACCORDINGLY. S D/ - S D/ - (K.K.GUPTA) A CCOUNTANT MEMBER ( K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 22.12.2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: ASST.COMMISSIONER OF INCOME - TAX, CIRC LE 2(2), CUTTACK 2. THE RESPONDENT: M/S.ORISSA STEVEDORES LTD., O.S.L. TOWER, LINK ROAD, CUTTACK. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SE NIOR PRIVATE SECRETARY.