Surendra Kr. Sharma, Kolkata V. DCIT, CC-III, KOLKATA, Kolkata

ITSSA 44/KOL/2015

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9885 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 26-08-2019
• Assessment Year: misc
• Appeal Filed On: 04-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Assessment record; Onus to prove
• Section: 250; 201; 274; 143(2); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI ABY T. VARKEY, JUDICIAL MEMBER) I.T(SS).A. NO. 44/KOL/2015 ASSESSMENT YEAR: BLOCK PERIOD-1988-89 TO 1997 TO 1997-98 AND 01.04.1998-29.10.1998 SURENDRA KUMAR SHARMA.............APPELLANT 11/12, BANGALAXMI ABASAN RAJARHAT, GOPALPUR 24, PARGANAS (NORTH) [PAN : AKJPS 3480 K] VS. DEPUTY COMMISSIONER OF INCOME TAX, CC-III, KOLKATA.........RESPONDENT APPEARANCES BY: SHRI SOMNATH GHOSH, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. DR. P.K. SRIHARI, CIT, SR. D/R APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 26 TH , 2019 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 20 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 20, KOLKATA, (HEREINAFTER THE LD. CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 12/01/2015, WHEREIN, HE PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AGAINST THE ORDER OF THE ASSESSING OFFICER PASSED U/S 158BC(C)/251/254 OF THE ACT. 2. GROUND NO. 1, OF THE ASSESSEE READS AS FOLLOWS:- 1. THAT THE LD. CIT(A) IS WRONG TO CONFIRM THE A.O.S CONTENTIONS THAT THE ASSESSMENT U/S 158BC(C)/251/254 WAS COMPLETED WITHIN TIME AND TRIED TO SERVED THE SAME UPON THE ASSESSEE TWO TIMES THROUGH NOTICE SERVER THOUGH THE SAME WAS RECEIVED BY THE ASSESSEE AFTER THE LAPSE OF 14.5 MONTHS WITHOUT ANY VERIFICATION OF DISPATCH REGISTER AND/OR PEON BOOK. THE ASSESSMENT IS BARRED BY LIMITATION U/S- 153(1A) OF THE I.T. ACT. 3. WE HAVE HEARD BOTH THE PARTIES, ONLY ON THIS ISSUE OF LIMITATION, AS RAISED IN GROUND NO. 1. THE CASE OF THE ASSESSEE IS THAT, THE ASSESSING OFFICER CLAIMS TO HAVE PASSED THE ASSESSMENT ORDER U/S 158BC(C)/251/254 OF THE ACT ON 31/12/2007 AND WHEREAS, THE ORDER IN QUESTION WAS COMMUNICATED TO THE ASSESSEE ON 16/03/2009 I.E., AFTER A PERIOD OF 435 DAYS, I.E., 14.5 MONTHS FROM THE DATE OF DISPATCH OF ORDER. THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THAT, THE PRESUMPTION IN LAW IS THAT, THE ASSESSMENT ORDER WAS PASSED BEYOND A PERIOD OF LIMITATION. THE LD. CIT(A) RELIED ON THE ORDER SHEET COPY OF THE ASSESSMENT RECORD, ENTRY IN THE DEMAND AND COLLECTION REGISTER AND DECIDED THE ISSUE AGAINST THE ASSESSEE. THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ENTRY IN D & CR ARE UNILATERAL RECORDS OF THE DEPARTMENT AND THAT THESE DO NOT PROVE THAT THE ASSESSMENT ORDER WAS PASSED ON 31/12/2007, WAS REJECTED. 4. AGGRIEVED THE ASSESSEE, IS IN APPEAL BEFORE US. 5. THE LD. COUNSE L FOR THE ASSESSEE, REITERATED THE ARGUMENTS MADE BY HIM BEFORE THE LD. CIT(A). HE RELIED ON THE FOLLOWING CASE ST MIRCOELECTRONICS (P.) LTD. VS. DCIT [2016] 384 ITR 550 (DELHI) STATE OF ANDHRA PRADESH VS. M. RAMAKIS JUDGMENT DT. FEBRUARY 17 5.1. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT, MODE OF SERVICE OF AN ORDER HAS BEEN PROVIDED U/S 282 OF THE ACT, WHEREIN THE SERVICE OF NOTICE THROUGH A NOTICE SERVER IS NOT MENTIONED. HE POINTED OUT THAT THE ASSESSING OFFICER HAS STATED IN THE R EMAND REPORT THAT, THE NOTICE SERVER HAS ATTEMPTED TO SERVE ASSESSEE, BUT FAILED. HE FURTHER POINTED OUT THAT THE ONLY ATTEMPT THAT WAS MADE BY THE NOTICE SERVER AS PER THE ACKNOWLEDGEMENT SLIP AVAILABLE IN THE ASSESSMENT RECORD ON 3 RD JANUARY, 2008. HE SUBMITTED THAT THIS ACKNOWLEDGMENT SLIP HAS NO EVIDENTIARY VALUE AS IT IS NOT COUNTER SIGNED BY ANY WITNESSES AND ONLY THE NOTICE SERVER HAS RECORDED THAT THE ASSESSEE WAS NOT FOUND AT THE GIVEN ADDRESS. HE VEHEMENTLY CONTENDED THAT THE SO- CALLED ATTEMPT BY THE NOTICE SERVER CANNOT BE LEGALLY SINCE IT IS NOT AUTHENTICATED BY ANY INDEPENDENT WITNESS. HE RELIED ON THE DECISION OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF SUBMITTED THAT, IF THERE IS ANY INORDINATE DELAY IN THE SERVICE OF THE ASSESSMENT ORDER, ONE CAN PRESUME THAT THE ORDER WAS NOT MADE ON THE DATE ITS WAS PURPORTED TO HAVE BEEN MADE AND THAT IT WAS MADE AFTER EXPIRY OF PERIOD OF LIMITATION. FOR THIS PROPOSITION, HE RELIED ON THE JUDGMENT OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME 298 (MADHYA PRADESH). 5.1.1. HE POINTED OUT THAT THE ASSESSMENT ORDER CLAIMED TO HAVE BEEN FRAMED ON 31/01/2007, WAS DISPATCHED THROUGH REGISTERED POST OF THE INDIAN POSTAL DEPARTMENT 2 I.T ASSESSMENT YEAR: BLOCK PERIOD-1988- 89 TO 1997 TO 1997 ORDER SHEET COPY OF THE ASSESSMENT RECORD, ENTRY IN THE DEMAND AND COLLECTION REGISTER AND DECIDED THE ISSUE AGAINST THE ASSESSEE. THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ENTRY IN D & CR B OOK AND IN THE ORDER SHEET OF THE ASSESSMENT RECORD ARE UNILATERAL RECORDS OF THE DEPARTMENT AND THAT THESE DO NOT PROVE THAT THE ASSESSMENT ORDER WAS PASSED ON 31/12/2007, WAS REJECTED. AGGRIEVED THE ASSESSEE, IS IN APPEAL BEFORE US. L FOR THE ASSESSEE, REITERATED THE ARGUMENTS MADE BY HIM BEFORE THE LD. CIT(A). HE RELIED ON THE FOLLOWING CASE -LAW:- ST MIRCOELECTRONICS (P.) LTD. VS. DCIT [2016] 384 ITR 550 (DELHI) STATE OF ANDHRA PRADESH VS. M. RAMAKIS H TAIAH & CO. IN CIVIL APPEAL NO. 4 JUDGMENT DT. FEBRUARY 17 TH , 1994. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT, MODE OF SERVICE OF AN ORDER HAS BEEN PROVIDED U/S 282 OF THE ACT, WHEREIN THE SERVICE OF NOTICE THROUGH A NOTICE SERVER IS NOT MENTIONED. HE POINTED OUT THAT THE ASSESSING OFFICER HAS STATED IN EMAND REPORT THAT, THE NOTICE SERVER HAS ATTEMPTED TO SERVE ASSESSEE, BUT FAILED. HE FURTHER POINTED OUT THAT THE ONLY ATTEMPT THAT WAS MADE BY THE NOTICE SERVER AS PER THE ACKNOWLEDGEMENT SLIP AVAILABLE IN THE ASSESSMENT RECORD JANUARY, 2008. HE SUBMITTED THAT THIS ACKNOWLEDGMENT SLIP HAS NO EVIDENTIARY VALUE AS IT IS NOT COUNTER SIGNED BY ANY WITNESSES AND ONLY THE NOTICE SERVER HAS RECORDED THAT THE ASSESSEE WAS NOT FOUND AT THE GIVEN ADDRESS. HE VEHEMENTLY CALLED ATTEMPT BY THE NOTICE SERVER CANNOT BE LEGALLY SINCE IT IS NOT AUTHENTICATED BY ANY INDEPENDENT WITNESS. HE RELIED ON THE DECISION OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF M. RAMAKISHTAIAH & CO. (SUPRA) IF THERE IS ANY INORDINATE DELAY IN THE SERVICE OF THE ASSESSMENT ORDER, ONE CAN PRESUME THAT THE ORDER WAS NOT MADE ON THE DATE ITS WAS PURPORTED TO HAVE BEEN MADE AND THAT IT WAS MADE AFTER EXPIRY OF PERIOD OF LIMITATION. FOR THIS ON THE JUDGMENT OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE COMMISSIONER OF INCOME -TAX VS. TARACHAND KHUSHIRAM REPORTED IN HE POINTED OUT THAT THE ASSESSMENT ORDER CLAIMED TO HAVE BEEN FRAMED ON WAS DISPATCHED THROUGH REGISTERED POST OF THE INDIAN POSTAL DEPARTMENT I.T (SS) A. NO. 44/KOL/2015 89 TO 1997 TO 1997 -98 AND 01.04.1998-29.10.1998 SURENDRA KUMAR SHARMA ORDER SHEET COPY OF THE ASSESSMENT RECORD, ENTRY IN THE DEMAND AND COLLECTION REGISTER AND DECIDED THE ISSUE AGAINST THE ASSESSEE. THE ARGUMENTS OF THE LD. COUNSEL FOR THE OOK AND IN THE ORDER SHEET OF THE ASSESSMENT RECORD ARE UNILATERAL RECORDS OF THE DEPARTMENT AND THAT THESE DO NOT PROVE THAT THE L FOR THE ASSESSEE, REITERATED THE ARGUMENTS MADE BY HIM BEFORE TAIAH & CO. IN CIVIL APPEAL NO. 4 91 OF 1977, THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT, MODE OF SERVICE OF AN ORDER HAS BEEN PROVIDED U/S 282 OF THE ACT, WHEREIN THE SERVICE OF NOTICE THROUGH A NOTICE SERVER IS NOT MENTIONED. HE POINTED OUT THAT THE ASSESSING OFFICER HAS STATED IN THE NOTICE ON THE ASSESSEE, BUT FAILED. HE FURTHER POINTED OUT THAT THE ONLY ATTEMPT THAT WAS MADE BY THE NOTICE SERVER AS PER THE ACKNOWLEDGEMENT SLIP AVAILABLE IN THE ASSESSMENT RECORD , WAS JANUARY, 2008. HE SUBMITTED THAT THIS ACKNOWLEDGMENT SLIP HAS NO EVIDENTIARY VALUE AS IT IS NOT COUNTER SIGNED BY ANY WITNESSES AND ONLY THE NOTICE SERVER HAS RECORDED THAT THE ASSESSEE WAS NOT FOUND AT THE GIVEN ADDRESS. HE VEHEMENTLY CALLED ATTEMPT BY THE NOTICE SERVER CANNOT BE LEGALLY ACCEPTED, SINCE IT IS NOT AUTHENTICATED BY ANY INDEPENDENT WITNESS. HE RELIED ON THE DECISION OF THE M. RAMAKISHTAIAH & CO. (SUPRA) AND IF THERE IS ANY INORDINATE DELAY IN THE SERVICE OF THE ASSESSMENT ORDER, ONE CAN PRESUME THAT THE ORDER WAS NOT MADE ON THE DATE ITS WAS PURPORTED TO HAVE BEEN MADE AND THAT IT WAS MADE AFTER EXPIRY OF PERIOD OF LIMITATION. FOR THIS ON THE JUDGMENT OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE REPORTED IN [2008] 303 ITR HE POINTED OUT THAT THE ASSESSMENT ORDER CLAIMED TO HAVE BEEN FRAMED ON WAS DISPATCHED THROUGH REGISTERED POST OF THE INDIAN POSTAL DEPARTMENT AND WAS FINALLY SERVED ON THE ASSESSEE ONLY ON 16/03/2009. THUS, HE SUBMITS THAT THE ORDER IN QUESTION DID NOT LEAVE THE HANDS OF THE ASSESSING AUTHORITY TILL MARCH, 2009. H FURTHER SUBMITTED THAT NO NOTICE U/S 143(2) OF THE ACT, WAS ISSUED BY THE ASSESSING OFFICER SUBSEQUENT TO THE ASSESSEE FILING HIS RETURN OF INCOME ON 30/09/1999, IN RESPONSE TO THE NOTICE U/S 158BC OF THE ACT AND HENCE, HE SUBMITS THAT THE ASSESSMENT ORD ER FRAMED WITHOUT ISSUE OF NOTICE U/S 143(2) OF THE ACT, IS BAD IN LAW. FOR THIS PROPOSITION, HE RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME (SC). 6. THE LD. D/R, SHRI P.K. SRIHARI CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT THE ASSESSMENT ORDER IN QUESTION WAS PASSED ON 31/12/2007 AND THAT THIS FACT IS EVIDENCED BY THE ENTRIES IN THE DEMAND AND COLLECTION REGISTER, COPY OF WHICH IS SUBMIT POINTED OUT THAT THE NOTICE SERVER ATTEMPTED TO SERVE THE NOTICE ON THE ASSESSEE TWICE AND THE ASSESSEE WAS NOT PRESENT AT THE ADDRESS GIVEN AND HENCE, THE ASSESSMENT ORDER COULD NOT BE SERVED ON THE ASSESSEE. SUBMITTED THAT THE RECORDING THEREIN DEMONSTRATES THAT THE ASSESSMENT ORDER WAS PASSED ON 31/12/2007. HE DREW THE ATTENTION OF THE BENCH TO THE RECORDINGS MADE BY THE NOTICE SERVER ON THE ACKNOWLEDGEMENT SLIP AND ATTEMPT HAS BEEN MADE BY THE DEPARTMENT TO SERVE THE ASSESSMENT ORDER ON THE ASSESSEE. HE RELIED ON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE SAME SHOULD BE UPHELD. HE FURTHER RELIED ON THE FOLLOWING JUDGMENTS O FOR THE PROPOSITION THAT, DELAY IN SERVICE OF THE COPY OF THE ASSESSMENT ORDER AND NOTICE OF DEMAND ON THE ASSESSEE, WOULD NOT LEAD TO A CONCLUSION THAT THE ASSESSMENT IS BARRED BY LIMITATION.:- CIT VS. SUBRATA ROY [2014] CIT VS. BINANI INDUSTRIES LTD. [2015] 59 TAXMANN.COM 389 (CALCUTTA) 6.1. IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT, IN THE CASE OF ROY (SUPRA) , THE HONBLE HIGH COURT WAS DEALING WITH A CASE, WHERE THE WAS ONLY 47 DAYS AND IT CAME TO A CONCLUSION THAT IT IS NOT TIME LONG ENOUGH WHICH CAN 3 I.T ASSESSMENT YEAR: BLOCK PERIOD-1988- 89 TO 1997 TO 1997 AND WAS FINALLY SERVED ON THE ASSESSEE ONLY ON 16/03/2009. THUS, HE SUBMITS THAT THE ORDER IN QUESTION DID NOT LEAVE THE HANDS OF THE ASSESSING AUTHORITY TILL MARCH, 2009. H FURTHER SUBMITTED THAT NO NOTICE U/S 143(2) OF THE ACT, WAS ISSUED BY THE ASSESSING OFFICER SUBSEQUENT TO THE ASSESSEE FILING HIS RETURN OF INCOME ON 30/09/1999, IN RESPONSE TO THE NOTICE U/S 158BC OF THE ACT AND HENCE, HE SUBMITS THAT THE ASSESSMENT ER FRAMED WITHOUT ISSUE OF NOTICE U/S 143(2) OF THE ACT, IS BAD IN LAW. FOR THIS ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME -TAX V. HOTEL BLUE MOON REPORTED IN [2010] 321 ITR 362 THE LD. D/R, SHRI P.K. SRIHARI , ON THE OTHER HAND, STRONGLY OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT THE ASSESSMENT ORDER IN QUESTION WAS PASSED ON 31/12/2007 AND THAT THIS FACT IS EVIDENCED BY THE ENTRIES IN THE DEMAND AND COLLECTION REGISTER, COPY OF WHICH IS SUBMIT TED BOTH TO THE ASSESSEE AND THE TRIBUNAL. HE POINTED OUT THAT THE NOTICE SERVER ATTEMPTED TO SERVE THE NOTICE ON THE ASSESSEE TWICE AND THE ASSESSEE WAS NOT PRESENT AT THE ADDRESS GIVEN AND HENCE, THE ASSESSMENT ORDER COULD NOT BE SERVED ON THE ASSESSEE. HE ALSO RELIED ON THE ASSESSMENT RECORD AND SUBMITTED THAT THE RECORDING THEREIN DEMONSTRATES THAT THE ASSESSMENT ORDER WAS PASSED ON 31/12/2007. HE DREW THE ATTENTION OF THE BENCH TO THE RECORDINGS MADE BY THE NOTICE SERVER ON THE ACKNOWLEDGEMENT SLIP AND SUBMITTED THAT IT IS CLEAR THAT AN ATTEMPT HAS BEEN MADE BY THE DEPARTMENT TO SERVE THE ASSESSMENT ORDER ON THE ASSESSEE. HE RELIED ON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE SAME SHOULD BE UPHELD. HE FURTHER RELIED ON THE FOLLOWING JUDGMENTS O F THE HONBLE CALCUTTA HIGH COURT FOR THE PROPOSITION THAT, DELAY IN SERVICE OF THE COPY OF THE ASSESSMENT ORDER AND NOTICE OF DEMAND ON THE ASSESSEE, WOULD NOT LEAD TO A CONCLUSION THAT THE ASSESSMENT IS BARRED CIT VS. SUBRATA ROY [2014] 45 TAXMANN.COM 513 (CALCUTTA) CIT VS. BINANI INDUSTRIES LTD. [2015] 59 TAXMANN.COM 389 (CALCUTTA) IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT, IN THE CASE OF , THE HONBLE HIGH COURT WAS DEALING WITH A CASE, WHERE THE WAS ONLY 47 DAYS AND IT CAME TO A CONCLUSION THAT IT IS NOT TIME LONG ENOUGH WHICH CAN I.T (SS) A. NO. 44/KOL/2015 89 TO 1997 TO 1997 -98 AND 01.04.1998-29.10.1998 SURENDRA KUMAR SHARMA AND WAS FINALLY SERVED ON THE ASSESSEE ONLY ON 16/03/2009. THUS, HE SUBMITS THAT THE ORDER IN QUESTION DID NOT LEAVE THE HANDS OF THE ASSESSING AUTHORITY TILL MARCH, 2009. H E FURTHER SUBMITTED THAT NO NOTICE U/S 143(2) OF THE ACT, WAS ISSUED BY THE ASSESSING OFFICER SUBSEQUENT TO THE ASSESSEE FILING HIS RETURN OF INCOME ON 30/09/1999, IN RESPONSE TO THE NOTICE U/S 158BC OF THE ACT AND HENCE, HE SUBMITS THAT THE ASSESSMENT ER FRAMED WITHOUT ISSUE OF NOTICE U/S 143(2) OF THE ACT, IS BAD IN LAW. FOR THIS ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF [2010] 321 ITR 362 , ON THE OTHER HAND, STRONGLY OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT THE ASSESSMENT ORDER IN QUESTION WAS PASSED ON 31/12/2007 AND THAT THIS FACT IS EVIDENCED BY THE ENTRIES IN THE DEMAND AND TED BOTH TO THE ASSESSEE AND THE TRIBUNAL. HE POINTED OUT THAT THE NOTICE SERVER ATTEMPTED TO SERVE THE NOTICE ON THE ASSESSEE TWICE AND THE ASSESSEE WAS NOT PRESENT AT THE ADDRESS GIVEN AND HENCE, THE ASSESSMENT ORDER HE ALSO RELIED ON THE ASSESSMENT RECORD AND SUBMITTED THAT THE RECORDING THEREIN DEMONSTRATES THAT THE ASSESSMENT ORDER WAS PASSED ON 31/12/2007. HE DREW THE ATTENTION OF THE BENCH TO THE RECORDINGS MADE BY SUBMITTED THAT IT IS CLEAR THAT AN ATTEMPT HAS BEEN MADE BY THE DEPARTMENT TO SERVE THE ASSESSMENT ORDER ON THE ASSESSEE. HE RELIED ON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE SAME SHOULD BE F THE HONBLE CALCUTTA HIGH COURT FOR THE PROPOSITION THAT, DELAY IN SERVICE OF THE COPY OF THE ASSESSMENT ORDER AND NOTICE OF DEMAND ON THE ASSESSEE, WOULD NOT LEAD TO A CONCLUSION THAT THE ASSESSMENT IS BARRED 45 TAXMANN.COM 513 (CALCUTTA) CIT VS. BINANI INDUSTRIES LTD. [2015] 59 TAXMANN.COM 389 (CALCUTTA) IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT, IN THE CASE OF SUBRATA , THE HONBLE HIGH COURT WAS DEALING WITH A CASE, WHERE THE DELAY IN SERVICE WAS ONLY 47 DAYS AND IT CAME TO A CONCLUSION THAT IT IS NOT TIME LONG ENOUGH WHICH CAN MAKE ANYONE SUSPICIOUS AS REGARDS THE CORRECTNESS OF THE DATE OF THE ORDER. REGARDING THE JUDGMENT IN THE CASE OF WAS SERVED WITHIN 13 DAYS FROM BEING PASSED AND HENCE THE COURT CAME TO A CONCLUSION THAT THE ASSESSMENT ORDER COULD NOT BE TREATED AS BARRED BY LIMITATION. ALSO SUBMITTED THAT THE JURISDICTIONAL HIGH COURT DID NOT C APEX COURT WHICH IS AN AUTHORITY ON THE ISSUE PRECEDENT. HE ONCE AGAIN POINTED OUT THAT THE DELAY IN THIS CASE IS OF 435 DAYS. 7. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 8. THE DATE APPEARING AT THE ACT IS 31/12/2007. IN FORM 35, THE ASSESSEE HAS STATED THAT THE ASSESSMENT ORDER ON HIM IS 16/03/2019. THUS, THERE WAS A DELAY OF 435 DAYS OF S 31/12/2007, THE DATE OF ORDER MENTIONED IN THE ASSESSMENT ORDER. THIS ISSUE WAS RAISED AS GROUND NO. 1 BEFORE THE LD. CIT(A). THE LD. CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER AND AT PARA 4 PAGE FOLLOWS:- THE AO RESPONDED BY FILING A WRITTEN SUBMISSION ON 28 CONTENDED THAT THE IMPUGNED ORDER WAS PASSED ON 31 LIMIT AS PROVIDED IN SECTION 153(2A) AND THAT THE CAUSED DUE TO THE FAILURE ON THE PART OF THE NOTICE SERVER WHO MADE TWO ATTEMPTS TO SERVE THE ASSESSMENT ORDER AND NOTICE OF DEMAND BUT FAILED. 8.1. IN THIS REMAND REPORT THE ASSESSING OFFICER REITERATED THAT THE ASSESSMENT ORDER WAS PASSED ON 31/12/2007. HE FURNISHED RELEVANT COPY OF THE ORDER SHEET ENTRY, WHICH RECORDS THAT THE PASSING OF THE ORDER FURTHER IN HIS REMAND REPORT STATED THAT THE FINANCIAL YEAR 2007- 08 AT SR. NO. 2 OF PAGE 12, COPY OF WHICH WAS FURNISHED. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE ARE SELF SERVING DOCUMENTS AND UNILATERAL RECORDS OF THE REVENUE. TO THESE ARGUMENTS, T I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD. I FIND FROM THE RELEVANT PAGE OF THE ORDER SHEET OF THE ASSESSMENT RECORD THAT AN ENTRY 4 I.T ASSESSMENT YEAR: BLOCK PERIOD-1988- 89 TO 1997 TO 1997 MAKE ANYONE SUSPICIOUS AS REGARDS THE CORRECTNESS OF THE DATE OF THE ORDER. REGARDING THE JUDGMENT IN THE CASE OF BINANI INDUSTRIES LTD. (SUPRA), HE POI NTED OUT THAT THE ORDER WAS SERVED WITHIN 13 DAYS FROM BEING PASSED AND HENCE THE COURT CAME TO A CONCLUSION THAT THE ASSESSMENT ORDER COULD NOT BE TREATED AS BARRED BY LIMITATION. ALSO SUBMITTED THAT THE JURISDICTIONAL HIGH COURT DID NOT C ONSIDER THE DECISION OF THE WHICH IS AN AUTHORITY ON THE ISSUE ON THE ISSUE AND AS SUCH, HE ONCE AGAIN POINTED OUT THAT THE DELAY IN THIS CASE IS OF 435 DAYS. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: - APPEARING AT COLUMN 8 OF TH E ORDER PASSED U/S 158BC(C)/254/253 OF THE ACT IS 31/12/2007. IN FORM 35, THE ASSESSEE HAS STATED THAT THE DATE OF IS 16/03/2019. THESE DATES ARE NOT DISPUTED BY THE REVENUE. THUS, THERE WAS A DELAY OF 435 DAYS OF S E RVICE OF ORDER ON THE ASSESSEE I.E., 31/12/2007, THE DATE OF ORDER MENTIONED IN THE ASSESSMENT ORDER. THIS ISSUE WAS RAISED AS GROUND NO. 1 BEFORE THE LD. CIT(A). THE LD. CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER AND AT PARA 4 PAGE 3 OF HIS ORDER, THE LD. CIT(A) RECORDED AS THE AO RESPONDED BY FILING A WRITTEN SUBMISSION ON 28 -05- 2009 WHEREIN IT WAS CONTENDED THAT THE IMPUGNED ORDER WAS PASSED ON 31 -12- 2007 WITHIN THE TIME LIMIT AS PROVIDED IN SECTION 153(2A) AND THAT THE DELAY IN THE SERVICE WAS CAUSED DUE TO THE FAILURE ON THE PART OF THE NOTICE SERVER WHO MADE TWO ATTEMPTS TO SERVE THE ASSESSMENT ORDER AND NOTICE OF DEMAND BUT FAILED. REMAND REPORT THE ASSESSING OFFICER REITERATED THAT THE ASSESSMENT ORDER WAS PASSED ON 31/12/2007. HE FURNISHED RELEVANT COPY OF THE ORDER SHEET ENTRY, WHICH THE PASSING OF THE ORDER WAS ON 31/12/2007. T HE ASSESSING OFFICER HAD FURTHER IN HIS REMAND REPORT STATED THAT , THE DEMAND WAS DULY ENTERED IN THE D & CR 08 AT SR. NO. 2 OF PAGE 12, COPY OF WHICH WAS FURNISHED. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE ARE SELF SERVING DOCUMENTS AND UNILATERAL TO THESE ARGUMENTS, T HE LD. CIT(A) RECORDS AS FOLLOWS I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD. I FIND FROM THE RELEVANT PAGE OF THE ORDER SHEET OF THE ASSESSMENT RECORD THAT AN ENTRY I.T (SS) A. NO. 44/KOL/2015 89 TO 1997 TO 1997 -98 AND 01.04.1998-29.10.1998 SURENDRA KUMAR SHARMA MAKE ANYONE SUSPICIOUS AS REGARDS THE CORRECTNESS OF THE DATE OF THE ORDER. REGARDING NTED OUT THAT THE ORDER WAS SERVED WITHIN 13 DAYS FROM BEING PASSED AND HENCE THE COURT CAME TO A CONCLUSION THAT THE ASSESSMENT ORDER COULD NOT BE TREATED AS BARRED BY LIMITATION. THE LD. COUNSEL ONSIDER THE DECISION OF THE AS SUCH, NOT A BINDING HE ONCE AGAIN POINTED OUT THAT THE DELAY IN THIS CASE IS OF 435 DAYS. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES E ORDER PASSED U/S 158BC(C)/254/253 OF DATE OF SERVICE OF THIS THESE DATES ARE NOT DISPUTED BY THE REVENUE. RVICE OF ORDER ON THE ASSESSEE I.E., AFTER 31/12/2007, THE DATE OF ORDER MENTIONED IN THE ASSESSMENT ORDER. THIS ISSUE WAS RAISED AS GROUND NO. 1 BEFORE THE LD. CIT(A). THE LD. CIT(A) CALLED FOR A REMAND REPORT 3 OF HIS ORDER, THE LD. CIT(A) RECORDED AS 2009 WHEREIN IT WAS 2007 WITHIN THE TIME DELAY IN THE SERVICE WAS CAUSED DUE TO THE FAILURE ON THE PART OF THE NOTICE SERVER WHO MADE TWO ATTEMPTS TO SERVE THE ASSESSMENT ORDER AND NOTICE OF DEMAND BUT FAILED. REMAND REPORT THE ASSESSING OFFICER REITERATED THAT THE ASSESSMENT ORDER WAS PASSED ON 31/12/2007. HE FURNISHED RELEVANT COPY OF THE ORDER SHEET ENTRY, WHICH HE ASSESSING OFFICER HAD WAS DULY ENTERED IN THE D & CR , FOR 08 AT SR. NO. 2 OF PAGE 12, COPY OF WHICH WAS FURNISHED. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE ARE SELF SERVING DOCUMENTS AND UNILATERAL HE LD. CIT(A) RECORDS AS FOLLOWS :- I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD. I FIND FROM THE RELEVANT PAGE OF THE ORDER SHEET OF THE ASSESSMENT RECORD THAT AN ENTRY REGARDING PASSING OF THE ASSESSMENT ORDER HAS BEEN MADE ON 31 RELEVANT EXTRACT BEING 'TOTAL UNDISCLOSED INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD 01-04-1988 TO 29-10- 1998 IS ASSESSED U AT RS.1,42,14,392/- AS PER SEPARATE ORDER. DEMAND NOTICE, CHALLAN AND A COPY OF THE ASSESS MENT ORDER ARE ISSUED TO THE ASSESSEE. I ALSO FIND THAT THE CORRESPONDING ENTRY HAS BEEN MADE ON 31- 03 ARGUMENT OF THE LD AR THAT THE AO'S RECORDS ALONE WERE NOT SUFFICIENT TO ESTABLISH THAT THE IMPUGNED ORDER WAS PASSED WITHIN THE DUE DATE. BUT THEN, THE ASSESSEE TOO HAS NOT BEEN ABLE TO BRING ANY POSITIVE MATERIAL ON ESTABLISH THAT THE IMPUGNED ORDER WAS HAS EXPLAINED THAT THE NOTICE ORDER AND NOTICE OF DEMAND BUT FAILED WHICH EVENTUALLY CAUSED THE DELAY IN THE SERVICE OF THE IMPUGNED ORDER. IMPUGNED ORDER WAS PASSED ON 31 INCLINED TO HOLD SIMPLY FOR THE REASON OF INORDINATE DELAY IN SERVICE OF THE IMPUGNED ORDER THAT IT WAS PASSED BEYOND THE DATE OF LIMITATION. GROUND NO FIND FROM THE COPY OF THE D & CR PLACED ON RE MISHRA WAS ALSO MADE ON 31 ON 28-05- 2009, THE AO HAS SUBMITTED THAT THE IMPUGNED ORDER WAS PASSED AFTER CONSIDERING THE ASSESSMENT OF SHIV TOO FAR WHEN HE CONTENDED THAT THE HON'BLE ITAT HAD DIRECTED THE AO TO INCORPORATE THE FINDINGS AND INFERENCES MADE IN THE CASE OF SHIV LALIT MISHRA WHILE MAKING THE ASSESSMENT OF THE ASSESSEE. I FIND THAT THE HON'BLE ITAT HAD SIM CONSIDER THE ASSESSMENT OF SHIV LALIT MISHRA WHILE MAKING THE ASSESSMENT IN THE CASE OF THE ASSESSEE. I THEREFORE DO NOT FIND SUBSTANCE IN THE CONTENTION OF THE LD AR THAT THE AO DID NOT F OLLOW THE DIRECTIONS OF THE HON'BLE ITAT WHIL ASSESSMENT IN THE CASE OF THE ASSESSEE. 8.2. FROM THE ABOVE, WE FIND THAT THE LD. CIT(A) HAS ADJUDICATED THE ISSUE IN FAVOUR OF THE REVENUE, BY PLACING THE BURDEN OF PROOF ON THE ASSESSEE. PROPOSITIONS OF LAW LAID DOWN BY THE COURTS ON THIS ISSUE. THE HONBLE SUPREME COURT IN THE CASE OF STATE OF ANDHRA PRADESH V M. RAMAKISHT AS FOLLOWS:- WE ARE OF THE OPINION THAT THE THEORY EVOLVED CALLED FOR IN THE CIRCUMSTANCES OF THE CASE. WE ARE OF THE OPINION THAT THIS APPEAL HAS TO BE DISMISSED ON THE GROUND URGED BY THE ASSESSEE HIMSELF. AS STATED ABOVE, THE ORDER FOR THE DEPUTY COMMISSIONER IS SAID TO HAVE IT WAS SERVED UPON THE ASSESSEE ON NOVEMBER 21, 1973, I.E., PRECISELY 10 MONTHS LATER. THERE IS NO EXPLANATION FROM THE DEPUTY COMMISSIONER WHY IT WAS SO DELAYED. IF THERE HAD BEEN A PROPER EXPLANATION, IT WOULD HAVE BE THE ABSENCE OF ANY EXPLANATION WHATSOEVER, WE MUST PRESUME THAT THE ORDER WAS NOT MADE ON THE DATE IT PURPORTS TO HAVE BEEN MADE. IT COULD HAVE BEEN MADE AFTER THE EXPIRY OF THE PRESCRIBED FOUR YEARS PERIOD. NO COSTS. ( EMPHASIS OURS) 8.2.1. THE PROPOSITIONS OF LAW LAID DOWN IN THIS CASE LAW APPLIES TO THE FACTS OF THE CASE. 5 I.T ASSESSMENT YEAR: BLOCK PERIOD-1988- 89 TO 1997 TO 1997 REGARDING PASSING OF THE ASSESSMENT ORDER HAS BEEN MADE ON 31 RELEVANT EXTRACT BEING 'TOTAL UNDISCLOSED INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD 1998 IS ASSESSED U /S 158BC(C)/251/ 254 OF THE INCOME TAX ACT AT RS.1,42,14,392/- AS PER SEPARATE ORDER. DEMAND NOTICE, CHALLAN AND A COPY OF THE MENT ORDER ARE ISSUED TO THE ASSESSEE. I ALSO FIND THAT THE CORRESPONDING ENTRY 03 -2007 IN THE DEMAND & COLLECTION REGISTER. I FIND MERIT IN THE ARGUMENT OF THE LD AR THAT THE AO'S RECORDS ALONE WERE NOT SUFFICIENT TO ESTABLISH IMPUGNED ORDER WAS PASSED WITHIN THE DUE DATE. BUT THEN, THE ASSESSEE TOO HAS NOT BEEN ABLE TO BRING ANY POSITIVE MATERIAL ON R ECORD WHICH COULD CONCLUSIVELY ESTABLISH THAT THE IMPUGNED ORDER WAS PASSED BEYOND THE DATE OF LIMI THE NOTICE SERVER MADE TWO ATTEMPTS TO SERVE THE ASSESSMENT ORDER AND NOTICE OF DEMAND BUT FAILED WHICH EVENTUALLY CAUSED THE DELAY IN THE SERVICE OF THE IMPUGNED ORDER. THE RECORDS OF THE AO ALSO SUGGESTED THAT THE IMPUGNED ORDER WAS PASSED ON 31 -12- 2007. UNDER THE CIRCUMSTANCES, I AM NOT INCLINED TO HOLD SIMPLY FOR THE REASON OF INORDINATE DELAY IN SERVICE OF THE IMPUGNED ORDER THAT IT WAS PASSED BEYOND THE DATE OF LIMITATION. GROUND NO . 1 FIND FROM THE COPY OF THE D & CR PLACED ON RE CORD THAT THE ASSESSMENT OF SHIV LALIT MISHRA WAS ALSO MADE ON 31 -12- 2007 BY THE SAME AO. IN HIS WRITTEN SUBMISSION FILED 2009, THE AO HAS SUBMITTED THAT THE IMPUGNED ORDER WAS PASSED AFTER CONSIDERING THE ASSESSMENT OF SHIV LALIT MISHRA. THE LD A R STRETCHED HIS ARGUMENTS TOO FAR WHEN HE CONTENDED THAT THE HON'BLE ITAT HAD DIRECTED THE AO TO INCORPORATE THE FINDINGS AND INFERENCES MADE IN THE CASE OF SHIV LALIT MISHRA WHILE MAKING THE ASSESSMENT OF THE ASSESSEE. I FIND THAT THE HON'BLE ITAT HAD SIM PLY DIRECTED THE AO TO CONSIDER THE ASSESSMENT OF SHIV LALIT MISHRA WHILE MAKING THE ASSESSMENT IN THE CASE OF THE ASSESSEE. I THEREFORE DO NOT FIND SUBSTANCE IN THE CONTENTION OF THE LD AR THAT OLLOW THE DIRECTIONS OF THE HON'BLE ITAT WHIL E FRAMING THE IMPUGNED THE CASE OF THE ASSESSEE. GROUND NO. 1 IS DISMISSED. ( EMPHASIS OURS) FROM THE ABOVE, WE FIND THAT THE LD. CIT(A) HAS ADJUDICATED THE ISSUE IN FAVOUR OF THE REVENUE, BY PLACING THE BURDEN OF PROOF ON THE ASSESSEE. THIS IS AGAINST THE PROPOSITIONS OF LAW LAID DOWN BY THE COURTS ON THIS ISSUE. THE HONBLE SUPREME COURT IN OF ANDHRA PRADESH V M. RAMAKISHT AIAH AND COMPANY (SUPRA) WE ARE OF THE OPINION THAT THE THEORY EVOLVED BY THE HIGH COURT MAY NOT BE REALLY CALLED FOR IN THE CIRCUMSTANCES OF THE CASE. WE ARE OF THE OPINION THAT THIS APPEAL HAS TO BE DISMISSED ON THE GROUND URGED BY THE ASSESSEE HIMSELF. AS STATED ABOVE, THE ORDER FOR THE DEPUTY COMMISSIONER IS SAID TO HAVE BEEN MADE ON JANUARY 6, 1973, BUT IT WAS SERVED UPON THE ASSESSEE ON NOVEMBER 21, 1973, I.E., PRECISELY 10 MONTHS LATER. THERE IS NO EXPLANATION FROM THE DEPUTY COMMISSIONER WHY IT WAS SO DELAYED. IF THERE HAD BEEN A PROPER EXPLANATION, IT WOULD HAVE BE EN A DIFFERENT MATTER. THE ABSENCE OF ANY EXPLANATION WHATSOEVER, WE MUST PRESUME THAT THE ORDER WAS NOT MADE ON THE DATE IT PURPORTS TO HAVE BEEN MADE. IT COULD HAVE BEEN MADE AFTER THE EXPIRY OF THE PRESCRIBED FOUR YEARS PERIOD. THE CIVIL APPEAL IS ACCORDINGLY DISMISSED. EMPHASIS OURS) THE PROPOSITIONS OF LAW LAID DOWN IN THIS CASE LAW APPLIES TO THE FACTS OF THE CASE. I.T (SS) A. NO. 44/KOL/2015 89 TO 1997 TO 1997 -98 AND 01.04.1998-29.10.1998 SURENDRA KUMAR SHARMA REGARDING PASSING OF THE ASSESSMENT ORDER HAS BEEN MADE ON 31 -12-2007, THE RELEVANT EXTRACT BEING 'TOTAL UNDISCLOSED INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD 254 OF THE INCOME TAX ACT AT RS.1,42,14,392/- AS PER SEPARATE ORDER. DEMAND NOTICE, CHALLAN AND A COPY OF THE MENT ORDER ARE ISSUED TO THE ASSESSEE. I ALSO FIND THAT THE CORRESPONDING ENTRY I FIND MERIT IN THE ARGUMENT OF THE LD AR THAT THE AO'S RECORDS ALONE WERE NOT SUFFICIENT TO ESTABLISH IMPUGNED ORDER WAS PASSED WITHIN THE DUE DATE. BUT THEN, THE ASSESSEE TOO ECORD WHICH COULD CONCLUSIVELY PASSED BEYOND THE DATE OF LIMI TATION. THE AO SERVER MADE TWO ATTEMPTS TO SERVE THE ASSESSMENT ORDER AND NOTICE OF DEMAND BUT FAILED WHICH EVENTUALLY CAUSED THE DELAY IN THE THE RECORDS OF THE AO ALSO SUGGESTED THAT THE 2007. UNDER THE CIRCUMSTANCES, I AM NOT INCLINED TO HOLD SIMPLY FOR THE REASON OF INORDINATE DELAY IN SERVICE OF THE IMPUGNED IS DISMISSED. I CORD THAT THE ASSESSMENT OF SHIV LALIT 2007 BY THE SAME AO. IN HIS WRITTEN SUBMISSION FILED 2009, THE AO HAS SUBMITTED THAT THE IMPUGNED ORDER WAS PASSED AFTER R STRETCHED HIS ARGUMENTS TOO FAR WHEN HE CONTENDED THAT THE HON'BLE ITAT HAD DIRECTED THE AO TO INCORPORATE THE FINDINGS AND INFERENCES MADE IN THE CASE OF SHIV LALIT MISHRA WHILE MAKING THE PLY DIRECTED THE AO TO CONSIDER THE ASSESSMENT OF SHIV LALIT MISHRA WHILE MAKING THE ASSESSMENT IN THE CASE OF THE ASSESSEE. I THEREFORE DO NOT FIND SUBSTANCE IN THE CONTENTION OF THE LD AR THAT E FRAMING THE IMPUGNED EMPHASIS OURS) FROM THE ABOVE, WE FIND THAT THE LD. CIT(A) HAS ADJUDICATED THE ISSUE IN FAVOUR OF THIS IS AGAINST THE PROPOSITIONS OF LAW LAID DOWN BY THE COURTS ON THIS ISSUE. THE HONBLE SUPREME COURT IN (SUPRA) , IT WAS HELD BY THE HIGH COURT MAY NOT BE REALLY CALLED FOR IN THE CIRCUMSTANCES OF THE CASE. WE ARE OF THE OPINION THAT THIS APPEAL HAS TO BE DISMISSED ON THE GROUND URGED BY THE ASSESSEE HIMSELF. AS STATED ABOVE, THE BEEN MADE ON JANUARY 6, 1973, BUT IT WAS SERVED UPON THE ASSESSEE ON NOVEMBER 21, 1973, I.E., PRECISELY 10 MONTHS LATER. THERE IS NO EXPLANATION FROM THE DEPUTY COMMISSIONER WHY IT WAS SO DELAYED. EN A DIFFERENT MATTER. BUT, IN THE ABSENCE OF ANY EXPLANATION WHATSOEVER, WE MUST PRESUME THAT THE ORDER WAS NOT MADE ON THE DATE IT PURPORTS TO HAVE BEEN MADE. IT COULD HAVE BEEN MADE AFTER THE IS ACCORDINGLY DISMISSED. THE PROPOSITIONS OF LAW LAID DOWN IN THIS CASE LAW APPLIES TO THE FACTS OF THE CASE. 8.3. IN THE CASE ON HAND, THE ASSESSING OFFICER CLAIMS THAT, THE ASSESSMENT ORDER WAS ATTEMPTED TO BE SERVED ON THE ASSESSEE THROUGH A NOTICE SERVER AND THAT TWO ATTEMPTS WERE MADE BY THE NOTICE SERVER TO SERVE THE ASSESSMENT ORDER. SECTION 282(1) OF THE ACT, READS AS FOLLOWS:- (1) THE SERVICE OF A NOTICE OR SUMMON OR REQUISITION OR ORDER OR ANY OTHER COMMUNICAT ION UNDER THIS ACT (HEREAFTER IN THIS SECTION REFERRED TO AS COMMUNICATION) MAY BE MADE BY DELIVERING OR TRANSMITTING A COPY THEREOF, TO THE PERSON THEREIN NAMED, (A) BY POST OR BY SUCH COURIER SERVICES AS MAY BE APPROVED BY THE BOARD; OR (B) IN SUCH MANNER AS PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, 1908 (5 OF 1908) FOR THE PURPOSES OF SERVICE OF SUM (C) IN THE FORM OF ANY ELECTRONIC RECORD AS PROVIDED IN CHAPTER IV OF THE INFORMATION TECHNOLOGY ACT, 2000 (21 OF 2000); (D) BY ANY O THER MEANS OF TRANSMISSION OF DOCUMENTS AS PROVIDED BY RULES MADE BY THE BOARD IN THIS BEHALF. 8.4. ATTEMPTING TO SERVE AN ASSESSMENT ORDER THROUGH THE NOTICE SERVER IS NOT ONE OF THE FORMS APPROVED FOR SERVICE U/S 282 OF THE ACT. THUS, THE SERVIC NOTICE SERVER, IS NOT A VALID MODE OF SERVICE. BE IT AS IT MAY, FROM THE ACKNOWLEDGEMENT SLIP PROVIDED BY THE NOTICE SERVER IT CAN BE SEEN THAT THERE IS NO PROPER AUTHENTICATION SERVE THE NOTICE. THERE ARE NO INDEPENDENT WITNESSES ATTEMPTED SERVICE . THUS, WE ARE OF THE OPINION THAT THE CLAIM OF THE REVENUE THAT ATTEMPTS HAVE BEEN MADE TO SERVE THE N UNPROVED IN THE CIRCUMSTANCES. SERVED BY THE NOTICE SERVER IS ADMITTED BY THE ASSESSING OFFICER WHEN HE STATES THAT IT WAS A FAILURE OF THE NOTICE SERVER. SERVING THE ORDER IS NOT THE SAME AS ATTEMPTING TO SERVE THE NOTICE. 9. COMING TO THE CASE- LAW RELIED UPON BY THE LD. D/R IN THE CASE OF ROY (SUPRA), THE DELAY WAS 47 DAYS AND THE HONBLE COURT HELD THAT TIME IS NOT TIME LONG ENOUGH WHICH CAN EVEN MAKE ANYONE SUSPICIOUS AS REGARDS THE CORRECTNESS OF THE DATE OF THE ORDER. THE JURISDICTIONAL HIGH COURT ALSO DID NOT CONSIDER THE JUDGMENT OF THE APEX COURT IN THE CASE OF STATE OF ANDHRA PRADESH V M. RAMAKISHTAIAH AND COMPANY (SUPRA) ITS FINDINGS. IN THE CASE OF 6 I.T ASSESSMENT YEAR: BLOCK PERIOD-1988- 89 TO 1997 TO 1997 IN THE CASE ON HAND, THE ASSESSING OFFICER CLAIMS THAT, THE ASSESSMENT ORDER WAS ON THE ASSESSEE THROUGH A NOTICE SERVER AND THAT TWO ATTEMPTS WERE MADE BY THE NOTICE SERVER TO SERVE THE ASSESSMENT ORDER. SECTION 282(1) OF THE (1) THE SERVICE OF A NOTICE OR SUMMON OR REQUISITION OR ORDER OR ANY OTHER ION UNDER THIS ACT (HEREAFTER IN THIS SECTION REFERRED TO AS COMMUNICATION) MAY BE MADE BY DELIVERING OR TRANSMITTING A COPY THEREOF, TO THE PERSON THEREIN NAMED, - BY POST OR BY SUCH COURIER SERVICES AS MAY BE APPROVED BY THE SUCH MANNER AS PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, 1908 (5 OF 1908) FOR THE PURPOSES OF SERVICE OF SUM MONS; OR IN THE FORM OF ANY ELECTRONIC RECORD AS PROVIDED IN CHAPTER IV OF THE INFORMATION TECHNOLOGY ACT, 2000 (21 OF 2000); THER MEANS OF TRANSMISSION OF DOCUMENTS AS PROVIDED BY RULES MADE BY THE BOARD IN THIS BEHALF. ATTEMPTING TO SERVE AN ASSESSMENT ORDER THROUGH THE NOTICE SERVER IS NOT ONE OF THE FORMS APPROVED FOR SERVICE U/S 282 OF THE ACT. THUS, THE SERVIC E OF NOTICE BY THE VALID MODE OF SERVICE. BE IT AS IT MAY, FROM THE ACKNOWLEDGEMENT SLIP PROVIDED BY THE NOTICE SERVER IT CAN BE SEEN THAT THERE IS NO PROPER AUTHENTICATION , THAT AN ATTEMPT HAS BEEN MADE TO ARE NO INDEPENDENT WITNESSES ATTESTING TO SUCH FACTUM OF . THUS, WE ARE OF THE OPINION THAT THE CLAIM OF THE REVENUE THAT ATTEMPTS HAVE BEEN MADE TO SERVE THE N OTICE THROUGH THE NOTICE SERVER IN THE CIRCUMSTANCES. IN ANY EVENT, THE FACT THAT THE ASSESSMENT ORDER WAS NOT SERVED BY THE NOTICE SERVER IS ADMITTED BY THE ASSESSING OFFICER WHEN HE STATES THAT IT WAS A FAILURE OF THE NOTICE SERVER. SERVING THE ORDER IS NOT THE SAME AS ATTEMPTING TO LAW RELIED UPON BY THE LD. D/R IN THE CASE OF THE DELAY WAS 47 DAYS AND THE HONBLE COURT HELD THAT A PERIOD OF 47 DAYS TIME IS NOT TIME LONG ENOUGH WHICH CAN EVEN MAKE ANYONE SUSPICIOUS AS REGARDS THE THE DATE OF THE ORDER. IN THE CASE ON HAND, THE DELAY IS 435 DAYS. THE JURISDICTIONAL HIGH COURT ALSO DID NOT CONSIDER THE JUDGMENT OF THE APEX COURT IN THE STATE OF ANDHRA PRADESH V M. RAMAKISHTAIAH AND COMPANY (SUPRA) IN THE CASE OF ST MICROELECTRONICS (P.) LTD. VS. DEPUTY COMMISSIONER OF I.T (SS) A. NO. 44/KOL/2015 89 TO 1997 TO 1997 -98 AND 01.04.1998-29.10.1998 SURENDRA KUMAR SHARMA IN THE CASE ON HAND, THE ASSESSING OFFICER CLAIMS THAT, THE ASSESSMENT ORDER WAS ON THE ASSESSEE THROUGH A NOTICE SERVER AND THAT TWO ATTEMPTS WERE MADE BY THE NOTICE SERVER TO SERVE THE ASSESSMENT ORDER. SECTION 282(1) OF THE (1) THE SERVICE OF A NOTICE OR SUMMON OR REQUISITION OR ORDER OR ANY OTHER ION UNDER THIS ACT (HEREAFTER IN THIS SECTION REFERRED TO AS COMMUNICATION) MAY BE MADE BY DELIVERING OR TRANSMITTING A COPY THEREOF, BY POST OR BY SUCH COURIER SERVICES AS MAY BE APPROVED BY THE SUCH MANNER AS PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, IN THE FORM OF ANY ELECTRONIC RECORD AS PROVIDED IN CHAPTER IV OF THER MEANS OF TRANSMISSION OF DOCUMENTS AS PROVIDED BY ATTEMPTING TO SERVE AN ASSESSMENT ORDER THROUGH THE NOTICE SERVER IS NOT ONE OF E OF NOTICE BY THE BE IT AS IT MAY, FROM THE ACKNOWLEDGEMENT SLIP PROVIDED BY THE NOTICE SERVER IT THAT AN ATTEMPT HAS BEEN MADE TO ATTESTING TO SUCH FACTUM OF . THUS, WE ARE OF THE OPINION THAT THE CLAIM OF THE REVENUE THAT OTICE THROUGH THE NOTICE SERVER REMAINED EVENT, THE FACT THAT THE ASSESSMENT ORDER WAS NOT SERVED BY THE NOTICE SERVER IS ADMITTED BY THE ASSESSING OFFICER WHEN HE STATES THAT IT WAS A FAILURE OF THE NOTICE SERVER. SERVING THE ORDER IS NOT THE SAME AS ATTEMPTING TO LAW RELIED UPON BY THE LD. D/R IN THE CASE OF CIT VS. SUBRATA A PERIOD OF 47 DAYS TIME IS NOT TIME LONG ENOUGH WHICH CAN EVEN MAKE ANYONE SUSPICIOUS AS REGARDS THE IN THE CASE ON HAND, THE DELAY IS 435 DAYS. FURTHER, THE JURISDICTIONAL HIGH COURT ALSO DID NOT CONSIDER THE JUDGMENT OF THE APEX COURT IN THE STATE OF ANDHRA PRADESH V M. RAMAKISHTAIAH AND COMPANY (SUPRA) IN COMING TO ST MICROELECTRONICS (P.) LTD. VS. DEPUTY COMMISSIONER OF INCOME- TAX [2016] 72 TAXMANN.COM 203 (DELHI) FOLLOWS:- SECTION 144 , READ WITH SECTION ASSESSMENT (PERIOD OF LIMITATION) ITS PREMISES AND UPDATED NEW ADDRESS WITH DEPARTMENT NOTICES, QUESTIONNAIRES, TPO'S ORDER AND DRAFT ASSESSMENT ORDER WERE SENT TO NEW ADDRESS - ASSESSMENT ORDER WAS SHOWN IN DEPARTMENTAL RECORD TO HAVE BEEN ISSUED ONLY AT OLD ADDRESS ASSESSMENT ORDER WAS PASSED WITHIN PERIOD OF LIMITATION COUNTER AFFIDAVIT - IT WAS FOUND THAT ENTIRE ASSESSMENT ORDER CONTAINED DATE ONLY IN ONE PLACE AND THAT TOO VERY SAME DATE UNDER SECTION 274 HAD DATE TYPED FINAL ASSESSMENT ORDER WAS IN FACT PASSED WITHIN PERIOD OF LIMITATION I.E., ON DATE WHICH WAS WRITTEN BY HAND ASSESSMENT ORDER WAS NOT PASSED WITHIN TIME PERIOD SPECIFIED UNDER SECTION 144C(4), READ WITH SECTION 144C(3) AND, HENCE, CONSEQUENT PENALTY AND DEMAND NOTICE WAS TO BE QUASHED 9.1. IN THIS JUDGMENT THE HO ROY (SUPRA) AND BINANI INDUSTRIES LTD. (SUPRA) REFERRENCE:- 24. MR SHIVPURI SOUGHT TO URGE THAT THE REQUIREMENT OF THE LAW AS FAR AS SECTION 144(C)(4) OF TH E ACT WAS ONLY THAT THE FINAL ASSESSMENT ORDER SHOULD BE PASSED WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH THE PERIOD FOR FILING OF OBJECTIONS UNDER SECTION 144(C) WOULD EXPIRE AND NOT THAT IT SHOULD BE DESPATCHED AND DELIVERED TO THE ASSESSEE WIT THE DECISIONS IN CIT V. SUBRATA ROY BINANI INDUSTRIES LTD. SUPPORT THE PROPOSITION THAT THE ASSESSMENT ORDER SHOULD BE TAKEN TO HAVE BEEN FINALLY PASSED ON THE DATE IT IS SIGNED BY DESPATCH OR SERVICE OF SUCH ORDER ON THE ASSESSEE. 9.2. IN THE CASE OF CIT VS. BINANI INDUSTRIES (SUPRA) THE CASE WHERE THE DELAY WAS 13 DAYS. KEEPING IN VIEW THE PROPOSITIONS OF LAW L DOWN BY VARIOUS COURTS ON THIS ISSUE, AS THE UNDISPUTED FACT IS THAT THE ASSESSMENT ORDER IN QUESTION WAS SERVED WITH EXTRAORDINARY DELAY, WE HAVE TO NECESSARILY HOLD THAT WE HAVE TO PRESUME THAT LIMITATION. THUS, WE HAVE NOT OTHER ALTERNATIVE BUT TO GROUND OF LIMITATION. HENCE GROUND NO. 1 OF THE ASSESSEE IS ALLOWED. 7 I.T ASSESSMENT YEAR: BLOCK PERIOD-1988- 89 TO 1997 TO 1997 TAX [2016] 72 TAXMANN.COM 203 (DELHI) , THE HONBLE DELHI HIGH COURT HELD AS , READ WITH SECTION 143 , OF THE INCOME-TAX ACT, 1961 - BEST JUDGMENT ASSESSMENT (PERIOD OF LIMITATION) - ASSESSMENT YEAR 2009-10 - PETITIONER SHIFTED ITS PREMISES AND UPDATED NEW ADDRESS WITH DEPARTMENT - DURING SCRUTINY, ALL NOTICES, QUESTIONNAIRES, TPO'S ORDER AND DRAFT ASSESSMENT ORDER WERE SENT TO ASSESSMENT ORDER WAS SHOWN IN DEPARTMENTAL RECORD TO HAVE BEEN ONLY AT OLD ADDRESS - ASSESSEE MADE SPECIFIC AVERMENTS THAT, IN FACT, NO ASSESSMENT ORDER WAS PASSED WITHIN PERIOD OF LIMITATION - REVENUE FILED NO IT WAS FOUND THAT ENTIRE ASSESSMENT ORDER CONTAINED DATE ONLY IN ONE PLACE AND THAT TOO WAS HAND WRITTEN, WHILE NOTICE ISSUED TO PETITIONER ON VERY SAME DATE UNDER SECTION 274 HAD DATE TYPED - REVENUE FAILED TO SHOW THAT FINAL ASSESSMENT ORDER WAS IN FACT PASSED WITHIN PERIOD OF LIMITATION I.E., ON DATE WHICH WAS WRITTEN BY HAND - WHETHER A P RESUMPTION HAD TO BE DRAWN THAT FINAL ASSESSMENT ORDER WAS NOT PASSED WITHIN TIME PERIOD SPECIFIED UNDER SECTION 144C(4), READ WITH SECTION 144C(3) AND, HENCE, CONSEQUENT PENALTY AND DEMAND NOTICE WAS TO BE QUASHED - HELD, YES IN THIS JUDGMENT THE HO NBLE COURT CONSIDERED THE DECISION IN THE CASE OF BINANI INDUSTRIES LTD. (SUPRA) AT PARA 24 WHICH IS EXTRACTED FOR READY MR SHIVPURI SOUGHT TO URGE THAT THE REQUIREMENT OF THE LAW AS FAR AS SECTION E ACT WAS ONLY THAT THE FINAL ASSESSMENT ORDER SHOULD BE PASSED WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH THE PERIOD FOR FILING OF OBJECTIONS UNDER SECTION 144(C) WOULD EXPIRE AND NOT THAT IT SHOULD BE DESPATCHED AND DELIVERED TO THE ASSESSEE WIT HIN THAT DATE. MR SHIVPURI, RELIES ON THE DECISIONS IN CIT V. SUBRATA ROY [2014] 45 TAXMANN.COM 513 (CAL.) BINANI INDUSTRIES LTD. [2015] 59 TAXMANN.COM 389/233 TAXMAN 14 (CAL.) SUPPORT THE PROPOSITION THAT THE ASSESSMENT ORDER SHOULD BE TAKEN TO HAVE BEEN FINALLY PASSED ON THE DATE IT IS SIGNED BY THE OFFICER AND NOT ON THE DATE OF DESPATCH OR SERVICE OF SUCH ORDER ON THE ASSESSEE. CIT VS. BINANI INDUSTRIES (SUPRA) , THE HONBLE COURT WAS CONSIDERING THE CASE WHERE THE DELAY WAS 13 DAYS. KEEPING IN VIEW THE PROPOSITIONS OF LAW L DOWN BY VARIOUS COURTS ON THIS ISSUE, AS THE UNDISPUTED FACT IS THAT THE ASSESSMENT ORDER IN QUESTION WAS SERVED WITH EXTRAORDINARY DELAY, WE HAVE TO NECESSARILY HOLD THAT WE HAVE TO PRESUME THAT THE ASSESSMENT ORDER WAS PASSED BEYOND THE PERIOD OF HAVE NOT OTHER ALTERNATIVE BUT TO QUASH THE ASSESSMENT ORDER ON THE GROUND OF LIMITATION. HENCE GROUND NO. 1 OF THE ASSESSEE IS ALLOWED. I.T (SS) A. NO. 44/KOL/2015 89 TO 1997 TO 1997 -98 AND 01.04.1998-29.10.1998 SURENDRA KUMAR SHARMA , THE HONBLE DELHI HIGH COURT HELD AS BEST JUDGMENT PETITIONER SHIFTED DURING SCRUTINY, ALL NOTICES, QUESTIONNAIRES, TPO'S ORDER AND DRAFT ASSESSMENT ORDER WERE SENT TO ASSESSMENT ORDER WAS SHOWN IN DEPARTMENTAL RECORD TO HAVE BEEN ASSESSEE MADE SPECIFIC AVERMENTS THAT, IN FACT, NO REVENUE FILED NO IT WAS FOUND THAT ENTIRE ASSESSMENT ORDER CONTAINED DATE ONLY WAS HAND WRITTEN, WHILE NOTICE ISSUED TO PETITIONER ON REVENUE FAILED TO SHOW THAT FINAL ASSESSMENT ORDER WAS IN FACT PASSED WITHIN PERIOD OF LIMITATION I.E., ON DATE RESUMPTION HAD TO BE DRAWN THAT FINAL ASSESSMENT ORDER WAS NOT PASSED WITHIN TIME PERIOD SPECIFIED UNDER SECTION 144C(4), READ WITH SECTION 144C(3) AND, HENCE, CONSEQUENT PENALTY AND DEMAND NBLE COURT CONSIDERED THE DECISION IN THE CASE OF SUBRATA AT PARA 24 WHICH IS EXTRACTED FOR READY MR SHIVPURI SOUGHT TO URGE THAT THE REQUIREMENT OF THE LAW AS FAR AS SECTION E ACT WAS ONLY THAT THE FINAL ASSESSMENT ORDER SHOULD BE PASSED WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH THE PERIOD FOR FILING OF OBJECTIONS UNDER SECTION 144(C) WOULD EXPIRE AND NOT THAT IT SHOULD BE HIN THAT DATE. MR SHIVPURI, RELIES ON [2014] 45 TAXMANN.COM 513 (CAL.) ; CIT V. [2015] 59 TAXMANN.COM 389/233 TAXMAN 14 (CAL.) TO SUPPORT THE PROPOSITION THAT THE ASSESSMENT ORDER SHOULD BE TAKEN TO HAVE BEEN THE OFFICER AND NOT ON THE DATE OF , THE HONBLE COURT WAS CONSIDERING THE CASE WHERE THE DELAY WAS 13 DAYS. KEEPING IN VIEW THE PROPOSITIONS OF LAW L AID DOWN BY VARIOUS COURTS ON THIS ISSUE, AS THE UNDISPUTED FACT IS THAT THE ASSESSMENT ORDER IN QUESTION WAS SERVED WITH EXTRAORDINARY DELAY, WE HAVE TO NECESSARILY HOLD THAT , THE ASSESSMENT ORDER WAS PASSED BEYOND THE PERIOD OF QUASH THE ASSESSMENT ORDER ON THE 10. AS WE HAVE ALLOWED THE GROUND OF APPEAL ADJUDICATE THE OT HER CONTENTIONS OF THE ASSESSEE AS IT WOULD BE AN ACADEMIC EXERCISE. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE SD/- [ABY T. VARKEY] JUDICIAL MEMBER DATED : 20.09.2019 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. SURENDRA KUMAR SHARMA 11/12, BANGALAXMI ABASAN RAJARHAT, GOPALPUR 24, PARGANAS (NORTH) 2. DEPUTY COMMISSIONER OF INCOME TAX, CC 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 8 I.T ASSESSMENT YEAR: BLOCK PERIOD-1988- 89 TO 1997 TO 1997 AS WE HAVE ALLOWED THE GROUND OF APPEAL ON THE ISSUE OF LIMITATION, WE DO NOT HER CONTENTIONS OF THE ASSESSEE AS IT WOULD BE AN ACADEMIC EXERCISE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 20 TH DAY OF SEPTEMBER, 201 9 [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: DEPUTY COMMISSIONER OF INCOME TAX, CC -III, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T (SS) A. NO. 44/KOL/2015 89 TO 1997 TO 1997 -98 AND 01.04.1998-29.10.1998 SURENDRA KUMAR SHARMA THE ISSUE OF LIMITATION, WE DO NOT HER CONTENTIONS OF THE ASSESSEE AS IT WOULD BE AN ACADEMIC EXERCISE. 9 . SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES