Appeal details
Counselvise Citation
[2018] 122 COUNSELVISE.COM (IT) 7758 (ITAT-CUTTACK)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 7 month(s) 4 day(s)
Appellant
Respondent
Appeal Type
Income Tax (Search & Seizure) Appeal
Pronouncement Date
27-09-2018
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Next Hearing Date
24-09-2018
Assessment Year
2006-2007
Appeal Filed On
22-02-2017
Judgement Text
, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PA V AN KUMAR GADALE, JM IT (S) A NO. 44 TO 46 /CTK/201 6 ( [ [ / ASSESSMENT YEAR : 20 04 - 2005 TO 2006 - 2007 ) SRI TRINADH CHO WDARY, PLOT NO.A/103, SAHEED NAGAR, BHUBANESWAR - 751007 VS. ACIT, CORPORATE CIRCLE - 1(2), BHUBANESWAR - 751007 ./ PAN NO. A DMPT 2490 A ( / APPELLANT ) .. ( / RESPONDENT ) AND IT (S) A NO. 03 /CTK/201 7 ( [ [ / ASSESSMENT YEA R : 2006 - 2007 ) SRI MADHUSUDAN PANIGRAHI , PLOT NO.A/103, SAHEED NAGAR, BHUBANESWAR - 751007 VS. ACIT, CORPORATE CIRCLE - 1(2), BHUBANESWAR - 751007 ./ PAN NO. A HHPP 9663 J ( / APPELLANT ) .. ( / RESPONDENT ) AND IT (S) A NO. 08 TO 10 /C TK/201 7 ( [ [ / ASSESSMENT YEAR :2004 - 2005 TO 2006 - 2007 ) SRI TIRUPATI PANIGRAHI, PLOT NO.A/103, SAHEED NAGAR, BHUBANESWAR - 751007 VS. ACIT, CORPORATE CIRCLE - 1(2), BHUBANESWAR - 751007 ./ PAN NO. A BDPP 5772 C ( / APPELLANT ) .. ( / RESPONDENT ) AND IT (S) A NO. 13 & 14 /CTK/201 7 ( [ [ / ASSESSMENT YEAR :2004 - 2005 & 2005 - 2006 ) SRI HARERAM CHOWDARY, PLOT NO.A/103, SAHEED NAGAR, BHUBANESWAR - 751007 VS. ACIT, CORPORATE CIRCLE - 1(2), BHUBANESWAR - 751007 ./ PAN NO. A FBPC 2046 J ( / APPELLANT ) .. ( / RESPONDENT ) [ /AS SESSEE BY : SHRI B.D.OJHA, AR /REVENUE BY : SHRI PIYUSH KOLHE , CITDR / DATE OF HEARING : 24 / 0 9 /201 8 / DATE OF PRONOUNCEMENT 27 / 0 9 /201 8 IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 2 / O R D E R PER SHRI PA V AN KUMAR GADALE, JM : THESE ARE THE APPEALS FILED BY THE DIFFERENT ASSESSEES AGAINST THE SEPARATE ORDERS OF CIT(A) - 3, BHUBANESWAR FOR THE ASSESSMENT YEARS 2004 - 2005, 2005 - 2006 & 2006 - 2007 . 2. SINCE THE ISSUES IN ALL THE APPEALS ARE COMMON, THEY ARE CLUBBED AND HEARD TOGETHER AND DISPOSED OFF BY THIS COMMON ORDER. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE UP APPEAL OF THE ASSESSEE I.E. SRI TRINADH CHOWDARY IN IT (SS) A NO. 44/CTK/2016 FOR ASS ESSMENT YEAR 2004 - 2005 AND THE FACTS NARRATED THEREIN. 3 . THE GROUNDS OF APPEAL RAISED IN THE ASSESSEE S APPEAL I.E. IT (SS) A NO.44/CTK/2016 IN CASE OF SRI TRINADH CHOWDARY FOR THE ASSESSMENT YEAR 2004 - 2005 ARE AS UNDER : - 1. BECAUSE THAT THE LD. COMM ISSIONER OF INCOME TAX (APPEALS - 3) ERRED IN LAW AS WELL AS IN FACT BY CONFIRMING THE ADDITION OF RS.1,16,667/ - ON ACCOUNT OF INVESTMENTS IN MARGADARSHI CHITFUND WHICH IS BASED ON SURMISES AND CONTRARY TO THE WEIGHT OF EVIDENCE ON RECORD. 2. BECAUSE TH AT THE LD. COMMISSIONER OF INCOME TAX (APPEALS - 3) ERRED IN LAW AS WELL AS IN FACT BY CONFIRMING THE ADDITION OF RS.89,816/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT IN HOUSE PROPERTY IGNORING THE SUBMISSIONS MADE WITH REGARD COST OF CONSTRUCTION OF THE HOUSE P ROPERTY SITUATED IN A LOCALITY HAVING POPULATION OF LESS THAN 5.00 LAKHS. 3. BECAUSE THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS - 3) ERRED IN LAW AS WELL AS IN FACT BY CONFIRMING THE ADDITION OF RS.6,51,925/ - ON ACCOUNT OF DEPOSITS IN BANK ACCOUNT IGNORING THE CASH FLOW FILED EXPLAINING THE SOURCE OF THE SAME. 4. BECAUSE THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS - 3) ERRED IN LAW AS WELL AS IN FACT BY CONFIRMING THE IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 3 ADDITION OF RS.24,000/ - ON ACCOUNT OF INVESTMENTS IN SRI RAM CHITS (P) LTD . WHICH IS BASED ON SURMISES AND CONTRARY TO THE WEIGHT OF EVIDENCE ON RECORD. 5. THE APPELLANT CRAVES TO ADD, AMEND AND WITHDRAW ANY GROUNDS OF APPEAL AT THE TIME OF HEARING. 4. THE L D. AR FILED REVISED ADDITIONAL GROUND S IN ALL THE ASSESSEES APPEA LS AGITATING THAT THE REASSESSMENT ORDER PASSED U/S.143(3)/254 OF THE ACT DATED 30.03.2015 IS BARRED BY LIMITATION ON DEFICIENCY IN SERVICE WITHIN THE TIME PERIOD . THE ADDITIONAL GROUND S RAISED IN IT(SS)A NO.44/CTK/2016 IS AS UNDER : - 1. BECAUSE THAT THE COMMISSIONER OF INCOME TAX (APPEALS) - 3, BHUBANESWAR, ERRED IN LAW AS WELL AS IN FACT IN NOT ACCEPTING THE FACT THAT THE ORIGINAL ASSESSMENT ORDER DATED 31.12.2007 HAS BEEN SERVED ON THE APPELLANT ON 16.02.2008 I.E. 46 DAYS' FROM THE DATE OF PERIOD OF L IMITATION FOR WHICH THE ASSESSMENT ORDER IS NULL & VOID IN THE EYES OF LAW. 2. BECAUSE THAT THE REASSESSMENT ORDER PASSED U/S 153A(B)/254 DATED 30.03.2015 IS BARRED BY LIMITATION AS THE SAME HAS BEEN SERVED ON THE AUTHORISED REPRESENTATIVE OF THE APPE LLANT ON 06.04.2015 . 5. AT THE TIME OF HEARING, THE LD. AR HAS ARGUED ONLY ON THE ADDITIONAL GROUND AND HAS NOT PRESSED OR ARGUED THE GROUNDS RAISED ON MERITS , ACCORDINGLY THE GROUNDS OF APPEAL ENCLOSED ALONG WITH FORM 36 ARE TREATED AS NOT PRESSED AND DI SMISSED . CONTRA, L D. DR RAISED OBJECTIONS ON THE ADDITIONAL GROUND S FILED. WE CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE SUPPORT OUR VIEW RELYING ON THE DECISION OF NATIONAL THERMAL POWER CO. LTD. VS . CIT, (1998) 229 ITR 383 (SC) , AND ADMIT THE AD DITIONAL GROUND AND PROCEEDED FOR HEARING THE CASE. IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 4 6 . BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE OPERATION S WAS CONDUCTED IN THE RESIDENTIAL PREMISES OF THE ASSESSEE AT SRIKAKULAM ON 30.09.2005. WHEREAS THE O RIGINAL ASSESSMENT U/S.153A(B)/143(3) O F THE ACT WAS COMPLETED ON 31.12.2007 DETERMINING TOTAL INCOME OF RS.5,94,502/ - . ON APPEAL, THE CIT(A) - 2 CONFIRMED THE ACTION OF THE AO. AGGRIEVED WITH THE ORDER, THE ASSESSEE ASSAILED THE APPEAL WITH ITAT AND THE TRIBUNAL VIDE ORDER DATED 10.10.2013 SET A SIDE THE ASSESSMENT TO THE FILE OF AO TO REFRAME THE ASSESSMENT DE NOVO AS PER LAW. ACCORDINGLY, THE AO BASED ON THE DIRECTION OF THE TRIBUNAL COMPLETED THE ASSESSMENT DETERMINING TOTAL INCOME OF RS.9,49,855/ - WITH ADDITIONS AND PASSED ORDER U/S.153A/254 O F THE ACT, DATED 30.03.2015. 7. AGAINST THE REASSESSMENT ORDER PASSED BY THE AO, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). IN THE APPELLATE PROCEEDINGS, THE ASSESSEE REITERATED THE SUBMISSION MADE BEFORE THE AO WHEREAS LD. CIT(A) HAS CONFIRMED THE ACTION OF AO AND DISMISSED THE APPEAL. 8. AGGRIEVED WITH THE ORDER OF CIT(A), THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL. 9. BEFORE US L D. AR SUBMITTED THAT THE ORIGINAL ASSESSMENT ORDER DATED 31.12.2007 HAS BEEN SERVED ON THE ASSESSEE ON 16.02.2008 I.E. 46 DAYS ' FROM THE DATE OF PERIOD OF LIMITATION FOR WHICH THE ASSESSMENT ORDER IS NULL & VOID IN THE EYES OF LAW AND ALSO THE REASSESSMENT ORDER PASSED U/S 153A(B)/254 DATED 30.03.2015 IS BARRED BY LIMITATION AS THE SAME HAS BEEN SERVED ON THE AUTHORISED REPRESENT ATIVE OF THE ASSESSEE ON IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 5 06.04.2015 AND SERVICE IS NOT DISPUTED BY THE REVENUE . FURTHER LD. AR SUPPORTED HIS ARGUMENTS RELYING ON THE COORDINATE BENCH DECISION OF THE TRIBUNAL IN THE CASE OF GEETARANI PANDA & ORS. VS. ACIT, IT(SS)A NOS.01&02/CTK/2017, DAT ED 05.07.2018 , M/S NIDAN VS. ACIT, IT(SS)A NOS. 32 TO 37/CTK/2018, ORDER DATED 16.05.2018 AND THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ESCORTS FARMS PVT. LTD. (1989) 180 ITR 280 (DEL) AND SUBSTANTIATED HIS STAND THAT THE DEPARTMENT H AS ERRED IN SERVING THE REASSESSMENT ORDER BEYOND THE LIMITATION PERIOD AND PRAYED FOR ALLOWING THE ADDITIONAL GROUND OF APPEAL . 10. CONTRA, LD. DR HEAVILY OBJECTED TO THE SUBMISSIONS OF LD. AR AND THE DECISIONS RELIED BY THE LD. AR OF THE ASSESSEE WHEREAS THE L D. DR SUPPORTED THE ORDER OF CIT(A) AND EMPHASIZED THAT THE DEPARTMENT HAS CORRECTLY SERVED THE ORDER . SINCE THE RE - ASSESSMENT BEING SEARCH AND SEIZURE OPERATIONS CONDUCTED IN THE RESIDENTIAL PREMISES OF THE ASSESSEE AND THE SISTER CONCERN OF ASSESSE E BEFORE SERVING THE ORDER THE DRAFT ORDER WAS SENT TO THE ADDITIONAL/JOINT COMMISSIONER OF INCOME TAX OF CIRCLE FOR APPROVAL AND SUBSEQUENTLY SERVED ON THE ASSESSEE. THE L D. DR FURTHER EMPHASIZED THAT THE REASSESSMENT ORDER AND NOTICE WAS PERSONALLY SERVE D ON THE AR OF THE ASSESSEE AND ENDORSEMENT WAS MADE ON DEMAND NOTICE. LD. DR FURTHER EXPLAINED THAT THERE IS NO DELAY IN SERVING THE ASSESSMENT ORDER AND SUPPORTED HIS SUBMISSIONS RELYING ON THE FOLLOWING DECISIONS I) INDIA FERRO ALLOY INDUSTRY (P) LTD. VS. CIT [1993] 202 ITR 671 (CAL.) ; IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 6 II) ESTHURI ASWATHIAH VS. CIT, [1963] 50 ITR 764 (MYSORE); III) RAMANAND AGARWALLA VS. CIT [1984] 17 TAXMAN 305(GAUHATI); AND IV) CIT VS. T.O.ABRAHAM & CO. [2011] 12 TAXMANN.COM 433 (KERALA). AND FINALLY THE LD. DR EXPL AINED THAT THE AO HAS CORRECTLY FOLLOWED THE LEGAL PROCEDURE AND HAS OBTAINED THE APPROVAL FROM ADDITIONAL/JOINT COMMISSIONER OF INCOME TAX AND AFTER RECEIPT OF THE APPROVAL FROM THE ABOVE AUTHORITIES THE SAID ORDER WAS SERVED, THEREFORE, SERVICE OF THE RE ASSESSMENT ORDER IS VALID AND WITHIN THE LIMITATION PERIOD AND PRAYED FOR DISMISSAL OF THE APPEAL OF ASSESSEE. 1 1 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD . LD. ARS CONTENTION THAT THE ORDER PASSED BY THE AO U/S.153A(B )/254 OF THE ACT IS BARRED BY LIMITATION AN D IT WAS SERVED ON THE ASSESSEE/LD. AR ON 06.04.2015. THE L D. AR SUPPORTED HIS ARGUMENTS WITH THE PAPER BOOK AND ALSO REFERRED TO THE EARLIER 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 TAKEN THE CONTENTION THA T ID OT(A) HAS NOT ACCEPTED THE FACT THAT THE ASSESSMENT ORDER HAS BEEN SERVED ON THE ASSESSEE AFTER 46 DAYS FROM THE PERIOD OF LIMITATION. THEREFORE, THE ASSESSMENT ORDER IS NULLITY IN EYES OF LAW. THE SECOND GROUND IS THAT AO HAS VIOLATED THE PRINCIPLES OF NATURAL JUSTICE BY CALLING RETURN OF INCOME U/S.!53A OF THE I.T.ACT, 1961 AND THIRD GROUND IS THAT AO HAS NOT GIVEN REASONABLE OPPORTUNITY TO THE ASSESSEE TO PRODUCE ANY EVIDENCE IN SUPPORT OF RETURN AND HAS VIOLATED THE PRINCIPLES OF NATURAL JUSTICE IN SOFAR AS THE ISSUANCE OF NOTICE U/S.L43(2) IS CONCERNED. WE ALSO FIND THAT ID CIT(A) HAS DISMISSED THESE GROUNDS. WE ALSO FIND FROM THE ORDERS OF THE AO AS WELL AS ID CIT(A) THAT AO HAS NOT GIVEN IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 7 REASONABLE OPPORTUNITY OF HEARING BEFORE PASSING THE ORDERS TO THE ASSESSEE. THEREFORE, IN OUR OPINION, AO AND ID CIT(A) HAS PASSED THE ORDERS WITHOUT FOLLOWING PRINCIPLES OF NATURAL JUSTICE. IN RESPECT OF NOTICE UNDER SECTION 143(2), WE FIND THAT NOTICE WAS ISSUED ON THE SAME DATE AT 11 AM AND IT WAS NOT POSSIBLE FOR THE ASSESSEE TO FILE SUBMISSION AND COULD NOT PRODUCE DETAILS 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 RADHIKA CHARAN BANERJEE V SAMBALP UR MUNICIPALITY, AIR 1979 ORISSA 69, HAS HELD THAT RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED OPPORTUNITY OF BEING HEARD IRRESPECTIVE OF LANGUAGE CONFERRING SUCH RIGHT THAT IS A PART AND PARCEL OF PRINCIPLES OF NATURAL JUSTICE. W HERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI - JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. THE AIM OF THE RULE OF NATURAL JUSTICE IS TO PREVENT MISCARRIAGE OF JUSTICE AND DENIAL OF PRINCIPLES OF AUDI ALTERAM PARTEM RESULTS INTO SUCH MISCARRIAGE OF JUSTICE. THEREFORE, THE LEARNED CIT(A) SHOULD HAVE AFFORDED REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, IN ORDER TO IMPART SUBSTANTIAL JUSTICE TO THE ASSESSEE, WE R EVERSE THE ORDERS OF LD. CIT(A) AND RESTORE 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 THE ISSUES TAKEN IN GROUND NOS.4 TO 8 A LSO RESTORED TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH. AO IS DIRECTED TO FRAME DENOVO ASSESSMENT AS PER LAW. ACCORDINGLY, AS PER THE DIRECTION S OF THE TRIBUNAL THE AO HAS PASSED THE REASSESSMENT ORDER ON 30.03.2015 AGAINST WHICH THE ASSESSEE H AS FILED AN APPEAL WITH THE FIRST APPELLATE AUTHORITY AND WAS DISMISSED BY THE CIT(A). T HE CONTENTION OF LD. AR IS THAT THE REASSESSMENT ORDER PASSED ON 30.03.2015 IS BARRED BY LIMITATION AS THE SAME WAS SERVED ON 06.04.2015. FURTHER L D. AR DEMONSTRATED TH E SERVICE OF ORDER WITH PAPER BOOK ALONG WITH COPY OF THE NOTICE OF DEMAND U/S.156 OF THE ACT DATED 30.03.2015 WITH ENDORSEMENT OF RECEIPT OF THE ORDER ON 06.04.20 15 FOR THE SAID ASSESSMENT YEAR, WHICH THE REVENUE HAS NOT IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 8 DISPUTED . LD. AR VEHEMENTLY EMPHAS IZED THAT THE REASSESSMENT ORDER WAS PASSED BEYOND LIMITATION PERIOD AND IS BARRED BY LIMITATION AND SUPPORTED HIS SUBMISSIONS WITH THE DECISIONS OF COORDINATE BENCH OF THE TRIBUNAL. 12 . WE HAVE PERUSED THE DECISIONS OF THE TRIBUNAL AND THE SUPPORTING MAT ERIAL PLACED ON RECORD . W E FOUND THAT THERE IS NO DISPUTE RAISED BY THE REVENUE IN RESPECT OF SERVING OF ORDER ON 06.04.2015 BUT THE FACT REMAINS THAT THE REVENUE COULD NOT DEMONSTRATE WITH EVIDENCE THAT THE ORDER WAS PRE PARED AND HAS LEFT OFFICE OF AO ON DATE 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 APPROVAL BEFORE SERVING ON THE ASSESSEE AND THE ORDER WAS PASSED ON 30.03.2015 . WE FOUND THAT T HIS ISSUE OF SERVICE OF THE ORDER WAS DEALT BY TH IS COORDINATE BENCH OF THE TRIBUNAL IN THE CASE 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 SUBMIS SIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE HAS RAISED TWO LEGAL ISSUES. FIRSTLY, THE ORDER OF ASSESSMENT BEING ISSUED AFTER THE STATUTORILY PERMITTED TIME IS BARRED BY LIMITATION. SEC ONDLY, NO REQUISITE APPROVAL AS ENVISAGED UNDER THE PROVISIONS OF SECTION 153D OF THE ACT WAS OBTAINED AND, THEREFORE, THE IMPUGNED ORDER OF ASSESSMENT IS BARRED IN LAW. 20. WE FIND FORCE IN BOTH THE ABOVE LEGAL ISSUES RAISED BY THE ASSESSEE FOR THE REAS ON 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 IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 9 ASSESSEE. THIS BENCH OF THE TRIB UNAL IN THE CASE OF M/S. NIDAN VS ACIT, (2018) 53 CCH 0046 (CUTTACK TRIBUNAL) HAS HELD AS UNDER: 4. IN ALL THE ABOVE SEVEN APPEALS, THE ASSESSEE RAISED A LEGAL GROUND WHICH IS THAT THE ORDERS OF ASSESSMENT PASSED BY THE ASSESSING OFFICER ARE BARRED BY LI MITATION. 5. THE FACTS RELATING TO THIS ISSUE ARE THAT A SEARCH AND SEIZURE OPERATION WAS CONDUCTED IN THE CASE OF THE ASSESSEE ON 28.5.2014. IN PURSUANCE TO THE SAID SEARCH, ORDER U/S.153A R.W.S 144 OF THE ACT WAS PASSED FOR THE ASSESSMENT YEARS 2009 - 20 10 TO 2014 - 15 AND ASSESSMENT 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 TH AT THE AFORESAID ORDERS BEING DESPATCHED ON 7.1.2017 ARE BARRED BY LIMITATION. THE CIT(A) OBSERVED THAT AS THE ORDERS WERE DATED 30.12.2016 AND IN ABSENCE OF ANY MATERIAL TO SHOW THAT THE ASSESSING OFFICER REVISITED THESE ORDERS AFTER 30.12.2016 UPHELD THE ORDERS AND DRAWN SUPPORT FROM THE DECISION OF HONBLE 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 ENVELOPE BY WHICH THE ORDERS OF ASSESSMENT WERE SENT TO THE ASSESSEE BY THE ASSESSING OFFICER AND COPY OF TRACK RECORD OF 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 THA T AS THE ORDERS WERE DISPATCHED AFTER 30.12.2016, THEREFORE, THE ORDERS OF ASSESSMENT WERE BARRED BY LIMITATION. HE PLACED RELIANCE ON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE 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 THE 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 DISPATCHED ON OR BEFORE 31.12.2016. 10. WE FIND THAT SECTION 153B(1)(A) READS AS UNDE R: 153B (1) NOTWITHSTANDING ANYTHING CONTAIN IN SECTION 153, THE AO SHALL MAKE AN ORDER OF ASSESSMENT OR REASSESSMENT (A) IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS] REFERRED TO IN CLAUSE (B) OF SUB - SECTION (1) OF SECTION IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 10 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 P ERUSAL OF THE ABOVE PROVISIONS SHOW THAT THE LANGUAGE USED BY THE LEGISLATURE IN THE ABOVE PROVISION IS IN NEGATIVE AND THE WORDS USED ARE ORDER OF ASSESSMENT 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 LIABILITY ON A PIECE OF PAPER AND SIGNING THE SAME MAY CONSTITUTE 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 OF ASSESSMENT, ITS COMMUNICATION MUST BE WITHIN A PERIOD OF LIMITA TION PRESCRIBED BY THE LAW THOUGH THE COMMUNICATION MAY END AFTER THE PRESCRIBED PERIOD OF LIMITATION. OUR ABOVE VIEW DERIVES SUPPORT FROM THE DECISION OF HONBLE KARNAKATA HIGH COURT IN THE CASE OF B J N HOTELS LTD (SUPRA), WHEREIN, IT HAS BEEN HELD AS UN DER: 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 ESTABLISH THAT THE ORDERS WERE COMPLETE AND EFFECTIVE I.E. IT WAS ISSUED, SO AS TO BE BEYON D THE CONTROL OF THE AUTHORITY CONCERNED WITHIN THE PERIOD OF LIMITATION I.E. 29.4.2007. ADMITTEDLY, THE ASSESSMENT ORDERS WERE SERVED ON THE ASSESSEE ON 30.4.2007. HENCE, THE ASSESSMENT ORDERS PASSED WERE BARRED BY LIMITATION. IN THE ABOVE DECISION, HO NBLE HIGH COURT FOLLOWS ITS ONE EARLIER DECISION AND HAS STATED AS UNDER: AN IDENTICAL ISSUE WAS BEFORE THIS COURT IN ITA NO.832/2008 (D.D. 14.10.2014 IN THE CASE OF MAHARAJA SHOPPING COMPLEX VS DCIT. THIS COURT FOLLOWING THE JUDGMENT OF KERALA HIGH CO URT IN THE CASE OF GOVERNMENT 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 B ARRED BY LIMITATION. THE SAID JUDGMENT SQUARELY APPLIES TO THE FACTS OF THE PRESENT CASE. 13. TO THE SAME EFFECT ARE THE DECISIONS OF HONBLE KERALA HIGH COURT, WHICH ARE IN THE CASE OF (I) K. JOSEPH JACOB VS AGRICULTURAL INCOME TAX OFFICER & ANOTHER (1 991) 190 ITR 464 IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 11 (KER) AND (II) COMMISSIONER OF AGRICULTURAL INCOME TAX OFFICER VS. KAPPUMALAI ESTATE, 234 ITR 187 (KER). 14. THE JODHPUR BENCH OF THIS TRIBUNAL ALSO HELD SIMILARLY IN THE CASE OF SHANTI LAL GODAWAT AND OTHERS VS. ACIT, REPORTED IN 126 TTJ (JD) 135. 15. IN VIEW OF ABOVE PLETHORA OF JUDICIAL PRECEDENTS, IN OUR CONSIDERED OPINION, THE DECISION OF HONBLE CALCUTTA HIGH COURT RELIED UPON BY THE CIT(A) IN THE CASE OF BINANI 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 HONBLE HIGH COURTS, NONE OF WHICH ARE HONBLE JURISDICTIONAL HIGH COURT, THEN THE VIEW FAVOURABLE TO THE ASSESSEE SHOULD BE FOLLOWED. FOR THIS, WE DERIVE SUPPORT FROM THE DECISION OF HON BLE SUPREME 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 EN D 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 YEARS 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 ASSESSMENT UNDER CONSIDERATION WERE DISPATCHED ONLY ON 7.1.2017. HENCE, IN OUR CONSIDERED OPINION, THE SAID ORDERS OF ASSESSMENT WERE TIME BARRED AND CONSEQUENTLY, WE SET ASIDE THE SAME AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE FOR ALL THE SEVEN YEARS UNDER APPEAL. 22. IN VIEW OF ABOVE, AS IN THE INSTANT CASE, THE COMMUNICATION PROCESS OF THE ASSESSMENT WAS NOT INITIATED ADMITTEDLY WITHIN THE PRESCRIBED PERIOD OF LIMITATION, HENCE IT DID NOT BECOME AN ORDER OF ASSESSMENT WITHIN THE PERIOD OF LIMITATION. WE, THEREFORE, HAVE NO HESITATION IN HOLDING THAT THE IMPUGNED ORDER OF ASSESSMENT IS BARRED BY LIMITATION. 23. IN THE INSTANT CASE, THE ALLEGED APPROVAL LETTER DATED 27.3.2015 OF THE ADDL. CIT, RANGE - 1, BHUBANESWAR READS AS UNDER: 'DESPITE A REMINDER GIVEN ON 19TH MARCH, 2015 T O SUBMIT THE TIME BARRING DRAFT ASSESSMENT ORDERS FOR APPROVAL 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 IL L 26TH MARCH, 2015 IN THE AFTERNOON. THE DRAFT ORDERS HAVING BEING SUBMITTED ONLY 5 DAYS BEFORE FINAL ORDERS ARE GETTING BARRED BY LIMITATION,, I HAVE NO OTHER OPTION BUT TO ACCORD THE APPROVAL TO THE SAME AS THE APPROVAL IS STATUTORILY REQUIRED U/S. IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 12 153D, EVEN THOUGH THERE IS NO TIME LEFT 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 THE ENQUIRIES AND INVESTIGATIONS THAT ARE REQUIRED TO BE MADE ARE ACTUALLY MADE BEFORE FINALIZATION OF THE ASSESSMENT ORDERS. IT WOULD HAVE BEEN MUCH BETTER AND IN THE INTEREST OF REVENUE, IF YOU HAD SUBMITTED THE DRAFT ORDERS ATLEAST ONE MONTH EARLIER SO AS TO ALLOW THE UNDERSIGNED SOMETIME TO GO THROUGH AND ANAL YSE THE SAME VIS - A - VIS THE APPRAISAL REPORT AND SEIZED RECORDS. IT ALSO GOES 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 T HROUGH 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 CONTAINED IN SECTION 153D AS ENACTED BY THE PARLIAMENT CANNOT BE TREATED AS AN EMPTY FORMALITY. THE PROVISION HAS CERTAIN PURPOSE. IT IS APPARENT THAT THE PURPOSE BEHIND THE ENACTMENT OF THE ABOVE PROVISION IN THE STATUTE BY THE PARLIAMENT ARE TWO FOLDS. FIRSTLY, THE APPROVAL OF THE SENIOR AUTHORITY WILL ENSURE THAT THE ASSESSEE IS NOT PREJUDICED BY THE UNDUE OR IRRELEVANT ADDITION OR ASSESSMENT. SECONDLY, THE APPROVAL BY SENIOR AUTHORITY WILL ALSO ENSURE THAT PROPER ENQUIRY OR INVESTIGATION ARE CARRIED OUT BY THE ASSESSING AUTHORITY. THUS, THE ABOVE PROVISION PROVIDES FOR MENTAL APPLICATION OF A SENIOR OFFICER OF THE DEPARTMENT, WHICH IN TURN, PROVIDES SAFEGUARD TO BOTH I.E. REVENUE AS WELL AS THE ASSESSEE. THEREFORE, THIS IMPORTANT PROVISION LAID DOWN BY THE LEGISLATURE CANNOT BE TREATED AS A MERE EMPTY FORMALITY. THE SAME VIEW W AS 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 APPROVAL WAS GRANTED WITHOUT PROPER APPLICATION OF MIND, THE OR DER OF ASSESSMENT WILL BE BAD IN LAW. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT - II VS SHRI AKIL GULAMALI SOMJI, IN INCOME TAX APPEAL (L) NO.1416 OF 2012 ORDER DATED 15.1.2013 CONCURRED WITH THE VIEW OF THE TRIBUNAL THAT NOT FOLLOWING OF THE PROVISIO NS OF SECTION 153D OF THE ACT WILL RENDER THE RELATED ORDER OF ASSESSMENT VOID. 25. IN THE INSTANT CASE, WE FIND THAT THE SUPERVISORY AUTHORITY HAS HIMSELF ADMITTED THAT BECAUSE OF REASONS STATED BY HIM, COULD NOT APPLY HIS MIND AND HAS ACCORDED THE APPR OVAL 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. IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 13 26. FURTHER, WE FIND THAT THE APPROVING AUTHORITY HAS REQUIRED THE ASSESSING AUTHORITY TO CONDUCT FURTHER ENQUIRY IN RESPECT OF OPENING CASH IN HAND. THE ASSESSING AUTHORITY THEREAFTER HAS NEVER COMMUNICATED HIS FINDINGS OF THE FURTHER ENQUIRY TO THE SUPERVISORY AUTHORITY AND NOT TAKEN THE APPROVAL OF JUSTIFICATION OF HIS FINDINGS. THUS, IN OUR CONSIDERED OPINION, ALLEGED APPROVAL LETTER DATED 27.3.2015 OF THE ADDL. CIT, RANGE1, BHUBANESWAR DOES NOT CONSTITUTE THE APPROVAL WHICH IS ENVISAGED BY THE PROVISIONS OF SECTION 15 3D OF THE ACT. THUS, FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF AKIL GULAMALI SOMJI (SUPRA), WE HOLD THAT THE IMPUGNED ORDER OF ASSESSMENT IS VOID AND BAD IN LAW. THEREFORE, THE IMPUGNED ORDER OF ASSESSMENT IS HEREBY CANCELLED A ND GROUND NO.2 AND GROUND NO.4 OF APPEAL IN CASE OF BOTH THE ASSESSEES ARE ALLOWED. 13 . WE CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE ORDERS OF LOWER AUTHORITIES AND THE JUDICIAL PRECEDENCE AND APPLYING THE RATIO OF JUDGMENT OF ABOVE DE CISION IN THE PRESENT CASE , FOUND THAT THE REASSESSMENT ORDER IS DATED 30.03.2015 AND THE SAME WAS SERVED ON 06.04.2015, WHICH IS NOT DISPUTED BY THE REVENUE AND WHICH IS SIMILAR FACTS OF THE DECISION OF COORDINATE BENCH OF THE TRIBUNAL IN CASE OF GEET ARANI PANDA (SUPRA) , WHERE SERVICE OF ORDER IS BARRED BY LIMITATION . ACCORDINGLY , WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND ALLOW THE ADDITIONAL GROUNDS OF APPEAL OF THE ASSESSEE - TRINADH CHOWDARY FO R THE ASSESSMENT YEAR 2004 - 2005 IN IT(SS)A NO. 44/CTK/2016 . 14 . NOW, WE SH ALL TAKE UP THE APPEALS IN IT(SS)A NO.45&46/CTK/2016, IT(SS)A NO.03/CTK/2017 , IT(SS)A NO.13&14/CTK/2017 AND IT(SS)A NO.08 TO 10/CTK/2017 , WHEREIN THE ASSESSEE HAS RAISED THE ADDITIONAL GROUND ON LIMITATION . IN THESE APPEALS THE LD. AR HAS NOT PRESSED THE G ROUNDS OF APPEAL ENCLOSED ALONG WITH FORM NO. 36 AND ACCORDINGLY ARE DISMISSED . HOWEVER, THE LD. AR OF THE ASSESSEE HAS ARGUED ONLY ON THE IT (SS) A NO. 44 - 46 /CTK/201 6 IT(SS)A NO.03/CTK/201 7 IT(SS)A NO.13&14/CTK/2017 IT(SS)A NO.08 - 10 /CTK/2017 14 ADDITIONAL GROUND, WHICH IS SIMILAR TO THE APPEAL FOR ASSESSMENT YEAR 2004 - 2005 IN IT(SS)A NO.44/CTK/2016, WHEREIN WE , RELYING ON THE DECISIONS OF COORDINATE BENCH OF THE TRIBUNAL, HAVE SET ASIDE THE ORDER OF LOWER AUTHORITIES AND HELD THAT THE ASSESSMENT ORDER PASSED BY THE AO IS BARRED BY LIMITATION THEREFORE, OUR OBSERVATIONS IN THE AFORESAID APPEAL FOR THE ASSESSMENT YEAR 2004 - 2005 , SHALL APPLY MUTATIS MUTANDIS TO THE APPEALS FOR THE ASSESSMENT YEARS 2005 - 06 & 200 - 07 IN CASE OF ASSESSEE - TRINADH CHOWDARY, FOR ASSESSMENT YEAR 2006 - 07 IN CASE OF ASSESSEE MADHUSUDAN PANIGRAHI, FOR ASSESSMENT YEARS 2004 - 05 TO 2006 - 07 IN CAS E OF ASSESSEE - TIRUPATI PANIGRAHI AND FOR ASSESSMENT YEARS 2004 - 05 TO 2006 - 07 IN CASE OF ASSESSEE - HARERAM CHOWDARY, RESPECTIVELY. 15 . IN THE RESULT, ALL THE APPEAL S I.E. IT(SS)A NO.44 TO 46/CTK/2016, IT(SS)A NO.03/CTK/2017, IT(SS)A NO.13&14/CTK/2017 AND IT( SS)A NO.08 TO 10/CTK/2017 FILED BY THE DIFFERENT ASSESSEES ARE ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 27 / 09 / 201 8 . SD/ - ( N.S.SAINI ) SD/ - ( PAVAN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 27 / 09 /201 8 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER , ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. [ / GUARD FILE. //TRUE COPY//
