ACIT, Central Circle-1, Bhubaneswar V. Nidan, Berhampur

MA 57/CTK/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5081 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 3 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-02-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 25-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Search and seizure; Additional depreciation; Period of limitation; Difference of opinion; Time period of passing order; Change of opinion; Set aside
• Section: 147; 148; 132; 143(3); 153A; 143(2); 254(2); 142(2A); 153

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE S/ AND ARUN KHODPIA, ACCOUNTANT MEMBER Assessment Years: 2009 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015 ACIT, Central Circle Berhampur (Appellant Per Arun Khodpia, A These Income tax Act, 1961 A Nos.32 to 37/CTK/2018 and IT(ss) A No.109/CTK/2018 for the assessment years 2009 2. The contentions of the revenue in the miscellaneous petitions are as under: IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK S/SHRI CHANDRA MOHAN GARG, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015 ACIT, Central Circle-1, Vs. M/s. Nidan, Infront of DIG Officer, Sales Tax road, Berhampur PAN/GIR (Appellant) .. ( Respondent Assessee by : S/Shri D.Parida/C.Parida Revenue by : Shri M.K.Goutam, Date of Hearing : 2 /2/ 20 Date of Pronouncement : 28/ O R D E R Per Arun Khodpia, AM miscellaneous petitions filed by the revenue Income tax Act, 1961 arise out of order dated 16.5.2018 A Nos.32 to 37/CTK/2018 and IT(ss) A No.109/CTK/2018 for the assessment years 2009-10 to 2015-16, respectively. The contentions of the revenue in the miscellaneous petitions are as Page1 | 24 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER M.A.Nos.54 to 59/CTK/2018 IT9SS)A Nos.32 to 37/CTK/2018) 10 to 2014-15 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 M/s. Nidan, Infront of DIG Officer, Sales Tax road, PAN/GIR No.AAEFN 3022 D Respondent) D.Parida/C.Parida, ARs CIT (DR) / 2022 /2/2022 petitions filed by the revenue u/s.254(2) of the dated 16.5.2018 of ITAT in IT(ss) A Nos.32 to 37/CTK/2018 and IT(ss) A No.109/CTK/2018 for the The contentions of the revenue in the miscellaneous petitions are as M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page2 | 24 “A search and seizure operation u/s 132 of the Income Tax Act, 1961 was conducted on 28.05.2014. In pursuance to the said search and seizure operation, assessment order u/s 153A read with 144 of the Income Tax Act, 1961 for the Assessment Years 2009-10 to 2014-15 and assessment order u/s 144 of the Income Tax Act. 1961 for the Assessment Year 2015-16 was passed on 30.12.2016. All these assessment orders were served upon the assessee on 09.01.2017. Being aggrieved, the assessee had preferred appeal before the CIT(A)-2. Bhubaneswar. The assessee contended that all aforesaid assessment orders being dispatch on 07.012017 are barred by time limitation. But Ld. CIT(A)-2, Bhubaneswar had upheld the assessment orders on the ground that assessment orders were made before the expiry of the limitation of time and there was no requirement of that the said orders was to be issued or dispatched or served before the time barring date. Further, citing the decision of Hon'ble High Court at Calcutta in the case of CIT vs Binani Industries Ltd reported in (2015) 59 taxmann.com 389 (Cal), Ld. CIT(A) stated that there was no indication that the assessing officer had revisited the order after 31.12.2016 and therefore grounds of appeal submitted by the assessee was dismissed.” Being aggrieved, the assessee had preferred appeal before the ITAT, Cuttack Bench, Cuttack. In its order Hon'ble ITAT is of the opinion, to become a legal valid order of assessment, its communication must be within a period of time limitation. Therefore Hon'ble ITAT had treated all the aforesaid assessment orders as time barred and allowed all the grounds of appeal of the assessee vide its order ITA No 32 to 37/CTK/2018 , SP No 14 to 20/CTK/2018 and ITA No 109/CTK/2018 for the A.Ys 2009-10 to 2015-16. Hence, as directed by the Ld. Pr. Commissioner of Income Tax, Kolkata-Central, Visakhapatnam contained in letter vide F No.Pr.CIT(C)/VSP/AAO-ITAT/37-CTK-2018/2018-19 dated 20.11.2018 a Miscellaneous Application is required to be filed before the ITAT for reconsideration of the case on the following ground. 1. The Hon'ble Tribunal is not correct in holding that when there are two divergent views of different High Courts, one favoring the assessee should be followed, totally ignoring the fact that decision of High Court favoring the Revenue in the case of CIT vs M/s Binani Industries, 59 Taxman.com 38 dt. 19.112014, which was confirmed by M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page3 | 24 the Apex Court, in as much as SLP filed in this regard was dismissed" 3. Before us, ld CIT DR submitted that the assessment orders were passed by the Assessing Officer on 30.12.2016 and served upon the assessee on 9.1.2017. He submitted that the assessment orders were passed before the expiry of the limitation of time and there was no requirement that the assessment orders should be served upon the assessee before the time barring date. Ld CIT DR also filed a written submission, which read as under: “The official records do not show that the assessment orders were passed by the A.O. beyond the limitation period i.e. 31.12.2016. In fact, it has been passed on 30.12.2016. The legislative intent specified in sections 143(2)/148 and other sections is clear wherein which it is stated that the A. O. should "serve on the assessee" as compared to the language used in section 153(1) of the Act. The legislature in its wisdom has not used the term "shall be served on the assessee" U/s. 153(1) for any assessment order or Demand Notice. Section 153(1) states that " No order of assessment shall be made u/s.143 or section 144 at any time after the expiry of two years from the end of assessment year in which the income was first assessable". Section 263(2) states that " No order shall be made under sub- section (1) after the expiry of two years from the end of the financial year in which order sought to be revised was passed" Thus "made" shall imply that the A.O. should make the assessment order by that date however there is no mention about service of assessment order along with notice of demand. It is cardinal rule of construction that when the words of a Statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning irrespective of the consequences. It is said that the words themselves best declare the intention of the law giver M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page4 | 24 as held by the Hon'ble Supreme Court in the case of Union of India v. Tata Chemicals Ltd. (363 ITR 658) (para-22). i.) In the case of CIT vs. Subrata Roy (45 taxmann.com 513), the Hon'ble Kolkata ITAT observed that "But in the present case before us, it is a fact that despite repeated opportunities to the Revenue, they could not prove any documentary evidence that the assessment was framed on 31.12.2008 i.e. the date of assessment order. It is a fact that the assessment order and demand notice was handed over to Postal Authorities on 12.02.2009 and the same was received by assessee on 16.02.2009". Hence it was held by the Hon'ble ITAT that the assessment order was barred by limitation since the order of assessment and the demand notice were served 47 days after the limitation period. On appeal, however the Hon'ble Kolkata High Court held that even if demand notice and copy of assessment order was served to the assessee after 47 days from date of assessment order which was last date for making such assessment (31.12.2008), such order could be said to have been passed on date it bore, as a period of 47 days time was not long enough to create any doubt regarding correctness of date of order and hence, such assessment could not be held to be barred by limitation of time. Thus this issue was decided in the favour of the Revenue. The observations of the Hon'ble High court in para-10 & 11 are reproduced as under: "10. We have considered the rival submissions advanced by the learned advocates for the parties and are of the opinion that the submission of Mr. Dudharia must be accepted. The submission that the assessment records were taken into account by the CIT(A) without disclosing the same to the assessee is altogether without any merit. The appellate authority cannot be expected to dispose of an appeal without looking into the assessment records. Had the appellate authority relied upon any independent enquiry or the result of any such enquiry, then it would have been incumbent upon the appellate authority to inform the assessee about the result of such enquiry so as to afford an opportunity to the assessee to make his submission with regard thereto. But the appellate authority had no such obligation to disclose the assessment records to the assessee before taking them into account at the time of hearing of the appeal. An appellate court cannot be prevented from perusing the lower court records. It is a M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page5 | 24 strange submission to make that the lower court records could not have been perused without giving an opportunity to the assessee. The submission that the learned Tribunal was justified in drawing an adverse inference is altogether without any merit. The learned Tribunal was hearing an appeal. The learned Tribunal was not taking evidence of the matter as a Court at the first instance would do. The question for consideration was whether the order dated 31st December, 2008 could be said to have been passed on 31st December, 2008 when the demand notice together with a copy of the order was served after 47 days. A period of 47 days time is not time long enough which can even make anyone suspicious as regards the correctness of the date of the order. In any case the presumption arising out of clause (e)of Section 114 proves the fact that the order was passed on 31st December, 2008. The same presumption once again would apply to the order dated 13th November, 2009 passed by the CIT (Appeal). There is, as such, no reason to even entertain any doubt as regards the existence of the file including the order dated 31st December, 2008. There is equally no reason to doubt that the assessment order was passed on 31st December, 2008. 11. We are, as such, of the opinion that the order passed by the learned Tribunal cannot be sustained, which is accordingly set aside and the order of the CIT(A) is restored". In the present case, the assessment orders are dated 30.12.2016. There is no evidence that these were ante-dated. There is no evidence to the effect that such orders were not passed on 30.12.2016. These have been dispatched on 07.01.2017 and received bv the assessee on 09.01.2017. There is no evidence that these have been tempered with bv the A.O. The AO had sought the approval of JCIT u/s.l53D vide letter dated 29.12.2016 which was approved by the Supervisory Officer vide letter dated 30.12.2016. These orders have been entered on page-74 of Demand & Collection Register (Part-XH/144 to 147/2016-17) on 30.12.2016. When the A.O. sends the draft order to the JCIT for approval U/S.153D, the order is beyond his control since after approval, the same order has to be issued to the assessee. Hence the allegation of being antedated shall not apply to such assessment orders. M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page6 | 24 ii.) The decision of the Hon'ble Andhra Pradesh High Court in the case of Kodicasu Appalaswamy & Suryanarayana vs. CIT (46 ITR 735) is pertinent in which their lordships held that where an order of assessment had been passed within the period of limitation then the date on which order of assessment and demand notice were served, was not relevant. iii.) The Hon'ble Gauhati High Court in the case of Ramanand Agarwalla vs. CIT (151 ITR 216) held that as per sub-section 1 of section 153 of the Income Tax Act, 1961, the A.O. is required to pass an order of assessment within the limitation period, it does not require that the demand notice and assessment order should also be issued within that limitation period. The Hon'ble High Court clearly distinguished the legislative intent regarding making of assessment order and service of demand notice. In other words, the statute requires the Income Tax Authority to serve any notice of demand U/s 156 of the Income Tax Act on the assessee not necessarily within the period of limitation U/s 153(1) of the Income Tax Act. In the cited case, the assessment order dated 16.03.1968 (due date 31.03.1968) was served on the assessee on 13.04.1968 and the Hon'ble Gauhati High held that the assessment order was not barred by limitation of time. Similarly in the case of Esthuri Aswathiah vs. CIT (50 ITR 764), the assessment order dated 29.02.1960 (due date 31.03.1960) was served on the assessee on 04.04.1961 and the Hon'ble Mysore High held that the assessment order was not barred by limitation of time, iv.) In the case of K.U. Srinivasa Rao Vs. Commissioner of Wealth-tax (152 ITR 128), the Hon'ble Andhra Pradesh High Court held that an order of assessment was not an administrative order but a quasi-judicial order. Section 17A(l)(a) of the Income Tax Act, 1957, requires that an order of assessment should be made within the prescribed period. It does not further require that it should be communicated within the prescribed period. An order must be deemed to have been made on the date on which it is purported to have been made. Therefore, an assessment order purporting to have been made on 31st March, 1979, but served on the assessee on 20th April, 1979, is deemed to have been passed in the eye of law on 31st March, 1979 and not barred by limitation under section 17A(l)(a). v.) Similarly in the case of India Ferro Alloy Industry Pvt. Limited Vs. Commissioner Of Income Tax (202 ITR 671), the Hon'ble Calcutta High Court held that in its opinion, what was required for completion of the assessment was the detennination of M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page7 | 24 the tax liability and issue of demand notice but certainly not the service of the same on the assessee. In view of above cited decisions and facts of the present case, it is clear that the AO had passed the assessment order within limitation period i.e. 31.03.2015. vi.) The Hon'ble Cuttack ITAT in the case of Sophia Study Circle Vs. ITO, Ward-2(1), Cuttack in ITA NO.286/CTK/2012 dated 10.06.2013 for AY 2008-09 has decided this issue in the favour of the Department (para-6 page-4 of the order). "6. We have considered the rival submissions. At the outset, a perusal of the provisions of section 153 of the Act shows that the word used in the said section 'make'. Similarly, a perusal of the proviso to section 147 of the Act shows that the word used as 'no action shall be taken'. Similarly, in the provisions of section 148 of the Act, the words used are 'shall serve on the assessee'. Similarly, in the provisions of section 149 of the Act, the words used are 'issue to the assessee. Thus, each word used in each section has a different purpose and different meaning. 'Made' cannot be treated on the same footing as served. The fact that the word used is 'made' in section 153 shows that the assessment order should be made on or before the said date. It does not mean that it should be served. On this ground itself as we find that the decision of the Coordinate Bench has erroneously laid down the law on this issue if the word 'made' is given the meaning served then the section itself would become unworkable and it would make all assessment orders made on the last day illegal. In the circumstances, respectfully following the principles and the ratio laid down by the Hon'ble Madras High Court in the case of CIT Vs. HiTech Arai Ltd. (2010) 321 ITR 477, we differ from the decision taken by the Coordinate Bench in the case of Durga Condev Pvt. Ltd. (supra) as also the decision of Shanti Lai Godawat & Ors. Vs. ACIT (2009) 126 TTJ (Jodh) 135. Here, we may specifically mention that in the case of Durga Condev Pvt. Ltd. (supra), though one of us is co-signatory in that order still we differ from the said order as there is no bravery in perpetuating an error in law. The fact that the assessment order is dated 31.12.2010 and there is no evidence available to show that this order was not passed on 31.12.2010 makes this order sustainable in law as under the provisions of the General Clauses Act a government document cannot be questioned unless and until substantial evidence has been produced to dislodge the veracity of the same. Under these circumstances, as it is noticed that the assessment order is dated 31.12.2010 and as no evidence has been produced to show or to prove the allegation that M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page8 | 24 the order was back dated, the technical ground raised by the assessee stands rejected". In the case of Sophia Study Circle, the Hon'ble Cuttack ITAT differed from the earlier decision in the case of Durga Condev Pvt. Ltd. in ITA NO.162/CTK/2012 dated 18.05.2012. Hence there is a judicial precedent which needs to be followed. vii.) Further the Hon'ble Cuttack ITAT has followed the decision of Hon'ble Karnataka High Court in the case of B. J. N. Hotels Ltd. (382 ITR 110) which was rendered on different facts. In the case of B. J. N. Hotels, the premises of the assessee company engaged in hotel business were subjected to search and proceedings. In response to notice U/S.153A, the assessee filed its return of income declaring loss. Proceedings by order dated 31st July, 2006, initiated under section 142(2A) of the Act, appointing a special auditor came to be dropped as no opportunity was provided to the assessee. A notice was issued under section 142(2A) of the Act on 30th November, 2006 proposing to send the books of account of the assessee for special audit. The assessee objected but the Assessing Officer obtained prior permission from the Commissioner on 18th December, 2006 and directed the assessee to get the accounts audited fixing the due date for submission of the special audit report on 28th February, 2007. The assessment was completed U/S.153A r.w.s. 143(3) of the Act by an order dated 27th April, 2007 and the orders were served on the assessee on 30th April, 2007. The Commissioner (Appeals) allowed the appeal filed by the assessee in part. The following questions of law came to be referred to the Hon'ble High Court; "1. Whether the Tribunal was correct in law in holding that the time for furnishing the special audit report could not have been extended beyond 27 th January, 2007 being 180 days from 31st July, 2006 being the date of the first direction and the order of assessment ought to have been made by 26 th March, 2007 and consequently the assessment order passed on 27th April, 2007 is barred by limitation on the facts and circumstance of the case ? 2. Whether the Tribunal is correct in law in holding that the Assessing Officer does not have the power to unilaterally withdraw the direction for audit under section 142(2A) of the Income Tax Act as the original direction was made with the M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page9 | 24 approval of the commissioner of Income Tax on the facts and circumstance of the case ? 3. Whether the Tribunal was correct in law in holding that the assessment order passed on 27th April, 2007 is barred by limitation as successive direction under section 142(2A) is not permissible and the second direction given to obtain the audit report before 28th February, 2007 is to elongate the assessment proceedings and also contrary to section 142(2C) of the Act on the facts and circumstance of the case ? 4. Whether the assessment order is barred by limitation as it was made beyond the period of limitation on the fact and circumstances of the case ?" On appeal, the Hon'ble Karnataka High Court held that the period prescribed under law being sixty days, the assessment orders were required to be issued on or before 26th March, 2007 considering sixty days from 27th January, 2007, the due date for the special auditor's report as specified under section 142(2C) of the Act. The assessment orders were dated 27th April, 2007. The due date for submission of the special audit report upon second reference of the Commissioner dated 18th December, 2006 being 28th February, 2007, the assessment orders were to be issued on or before 29th April, 2007. On the direction of Hon'ble High Court to produce the original records, the same were placed before the court. But it was noticed that there were certain over writings in the order sheet as regards date of passing of the order by the Assessing Officer and moreover, a particular page of the order sheet was maintained on a rough sheet (in an unusual manner) different from other pages of the order sheet. Besides this flaw in the records, the counsel for the Revenue was neither able to point out from the records that the assessment orders were dispatched on 27th April, 2007 nor produced the dispatch register to establish that the orders were complete and effective i.e. if these were issued then these were beyond the control of the authority concerned within the period of limitation. Hence in these peculiar facts, it was held that the assessment orders were barred by limitation. These facts & circumstances do not exist in the present case. Here the assessment orders have been passed before the prescribed period as laid down in section 153 of the Act. There is no allegation against the A.O. to the effect that there are certain over-writings in the order sheet as regards the date of M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page10 | 24 passing order by the A.O. The A.O. has not used any rough paper (other than order sheet) for writing the entries, viii.) The Hon'ble Mumbai ITAT in the case of Jai Jinendra Cold Storage Pvt. Ltd. vs. ITO in ITA No.2584 & 2585/Mum/2011 dated 08.02.2012 has decided this issue in the favour of the Revenue. In this case, it was argued by the assessee that since the assessment order dated 30.12.2009 was dispatched by the department on 01.01.2010 which was received by the assessee on 02.01.2010 as per postal receipt, therefore, the assessment order dated 30.12.2009 was barred by limitation as according to the Act the assessment order was required to be served by 31.12.2009. Reliance was also placed on the decision of Hon'ble Jodhpur Tribunal in the case of Shantilal Godawat & Others vs. ACIT (2009) 30 DTR 413, wherein it was held that "the assessment order passed on 28.12.2007 but served on 02.01.2008, beyond the period of limitation of 31.12.2007 was barred by limitation and thus non-est in law". On appeal, the Hon'ble Mumbai ITAT held in paras-7 to 8 as under: "7. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that there is no dispute that the impugned assessment order was passed on 30.12.2009. It is also not in dispute that the same was received by the assessee within three days i.e. on 2.1.2010. Under the provisions of section 153 of the Act, it has been mentioned that the order of assessment has to be made within twenty one months from the end of the relevant assessment year i.e. in the case of the assessee on or before 31.12.2009. It is not necessary that the order of the assessment should be communicated to the assessee or that notice of demand in pursuance thereof should be served on him within the above period. The assessee placed no material on record to show that the order of assessment was not passed on 30.12.2009. Merely because according to the assessee that it was dispatched on 01.01.2010 does not mean that the assessment order was passed after the statutory time limit provided under the Act. 8. In BJ. Shelat vs. State of Gujarat, AIR 1978 SC 1109, it has been held (at page 471): " The question as to when an order can be stated to have been made was the subject of consideration by this court in Government Wood Workshop vs. State of Kerala [1988] 69 STC 62 ; [1987] 1 KLT 804 in which this court stated, after relying on various M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page11 | 24 decisions of the Supreme Court culminating in BJ. Shelat v. State of Gujarat, AIR 1978 SC 1109, as follows (at page 69): "The order of any authority cannot be said to be passed unless it is in some way pronounced or published or the party affected has the means of knowing it. It is not enough if the order is made, signed, and kept in the file, because such order may be liable to change at the hands of the authority who may modify it, or even destroy it, before it is made known, based on subsequent information, thinking or change of opinion. To make the order complete and effective, it should be issued, so as to be beyond the control of the authority concerned, for any possible change or modification therein. This should be done within the prescribed period, though the actual service of the order may be beyond that period".(emphasis supplied). Respectfully following the same and in the absence of any material to show that the order passed by the AO was not made on 30.12.2009. we hold that the order passed bv the AO was within the limitation and not barred bv limitation. The plea taken by the learned counsel for the assessee is without any merit and hence, the same is rejected". ix.) Similar to section 153 of the Act, there is no mention in section 263(2) of the Act to the effect that the revision order passed by Pr. CIT should be served within prescribed due date of passing such order. In the case of Jaidurga Minerals vs. Pr. CIT in ITA No.276/CTK/2015 dated 10.08.2020, the Hon'ble Cuttack ITAT has observed in para-10 as under: "10. In ground No.l Id. AR raised an issue regarding service of order which has been served by the assessee on 04.04.2015, which is placed in paper book at page No.21 wherein in the right side top, it has been mentioned that the order dated 30.03.2015 passed u/s.263 of the Act was received through speed post by the office staff on 04.04.2015. According to the arguments of the assessee the order should be served up to the end of the financial year i.e. 31.03.2015 but the order has been received by the assessee on 04.04.2015, which is illegal. In this regard, we refer to the provisions of Section 263(2) of the Act, which reads as under: "263(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed." From the record, it is clear that the assessment order U/S.143(3) of the Act was passed on 30.03.2017 and the Pr. CIT has passed his order on 28.03.2019, M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page12 | 24 therefore, the order is within two years from the relevant date. From the reading of the provisions of Section 263(2) of the Act, it is clear that there is no mention about the "service" of the order, however, it is only mentioned that the order shall be "made". With regard to "service" it has clearly been defined in the section 143(2) of the Income Tax Act but in section 263 of the Act nowhere about service of order has been mentioned. Therefore, this argument of the assessee with regard to ground No.l, is dismissed". x.) In the case of CTT vs. HiTech Arai Limited (321 ITR 477), the Hon'ble Madras High Court held that there is no merit in argument that the Tribunal should blindly follow its own earlier decision even if such earlier decision did not reflect the correct position of the law. Thus where the Tribunal by the impugned order had applied section 32(l)(iia ) to the facts involved in the case of the assessee and had found that the assessee was entitled for the additional depreciation claimed under the said provision, it could not be held that simply because a co-ordinate Bench of the Tribunal had earlier taken a different view, the Tribunal on this occasion also ought to have followed the same, especially when it was found that the Tribunal had applied the law correctly in the impugned order. xi.) In the case of Kothakota Rama Rao vs. ACIT in ITA NO.132/CTK/2018 dated 31.08.2020 (latest decision on this issue) for AY 2013-14, the fifth ground of appeal (third legal ground) pertained to the fact that the Assessing Officer had passed the assessment orders U/S.153A on 29.12.2017 but these were served on the assessee on 15.01.2018. Hence these orders were barred by limitation of time and thus liable to be quashed. It was stated by the counsel of the assessee that this issue was covered in his favour by the decision of Hon'ble Cuttack ITAT in the case of Nidan Diagnostic in IT(SS) No.32 to 37/CTK/2018 wherein the decision of Hon'ble Karnataka High Court in the case of DCIT vs. B J N Hotels (supra) had been followed. Reliance was also placed on the decision of Hon'ble Delhi ITAT in the case of Pankaj Sharma vs. DCIT in ITA No.3566 to 3567/Del/2015. After considering the above submissions/judicial ratios and arguments of the CIT (DR), the Hon'ble Cuttack ITAT discussed the findings of CIT(A), Bhubaneswar in para-10 wherein he had dealt with this issue in an elaborate manner. The CIT (A) held that the Hon'ble Jurisdictional Tribunal, in their order dated 10.06.2013 in the case of Sophia Study Circle Vs. ITO in ITA NO.286/CTK/2012 has held that the Assessing Officer is required to make the M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page13 | 24 assessment order before the time barring date and is not required to serve the order before the time barring date. The CIT (A) further held that the decision of Hon'ble Jurisdictional Tribunal in the case of Sophia Study Circle was not placed before the Hon'ble Tribunal, during the hearing in the case of M/s.Nidan. Therefore, as such, the decision in the case of M/s.Nidan is Per incuriam. Thus the Hon'ble Cuttack ITAT came to conclusion in Para- 11 that said assessment orders U/S.153A had been made within prescribed time limit. It was further held that there was no mention of service in the relevant provisions of the Act. It was highlighted that unlike section 143(2) wherein word "service" was mentioned, the section 153 used the words "made". Thus such legal ground raised by the assessee was dismissed. Considering the above decision wherein the Hon'ble Cuttack ITAT had examined the plethora of decisions, it is requested that M.A. filed by the Department should be allowed.” 4. Ld CIT DR, precisely reiterating to above written submission, submitted that the time barring limit for six assessment years i.e. 2009-10 to 2014-15 was 31.12.2016. However, in the year of search i.e. 2015-16, the last date of passing the assessment orders u/s.143(3) r.w.s 153A of the Act was 31.12.2017, therefore, the assessment order pertaining to year of search cannot be alleged as time barred. Therefore, there is an apparent mistake in the order of the Tribunal dated 16.5.2018. Ld CIT DR further submitted that the order of ITAT Cuttack Bench in the case of Sophia Study Circle vs ITO in ITA No.286/CTK/2012 order dated 10.6.2013 clearly ruled out that in a case when order has been passed within the prescribed limitation period, then the date of service of order is not relevant for the purpose of adjudicating the issue of time barring assessment order. Ld CIT DR submitted that the order of ITAT Cuttack Bench in the case of Sophia M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page14 | 24 Study Circle (supra) was not brought to the notice of the Bench neither by the department nor by the assessee during the course of hearing to be followed by the Bench as an order of Co-ordinate Bench on the similar issue. Ld CIT DR also pointed out that the AO requested the JCIT to grant approval u/s.153D of the Act by letter dated 29.12.2016 which was granted on 30.12.2016 and thereafter assessment orders were passed for all seven assessment years including year of search on 30.12.2016 within the prescribed time limit. Therefore, the Tribunal has committed an error apparent from the record; hence, the order of the Tribunal may kindly be recalled. 5. Ld CIT DR also placed reliance on the decision of ITAT Cochin Bench in the case of ACIT vs Chandragiri Construction Co(2021) 21 taxmann.com 167 (Coch.) (TM) and submitted that the Tribunal is required to follow order passed by it in respect of earlier assessment years and if the Bench is not agreed to follow earlier order, then alternatively, it is bound to refer the matter to a larger Bench if Members of this Bench are not willing to follow earlier order, however, Bench cannot come to a conclusion contrary to conclusion reach in earlier order of the Tribunal. He also drew our attention towards order of Hon’ble A.P. High Court in the case of K.U.Srinivasa Rao vs Commissioner of Wealth Tax (1985) 152 ITR 128 (AP) and submitted that the order of assessment having been passed within prescribed period but served upon assessee after expiry of prescribed period would not be barred M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page15 | 24 by limitation. Ld CIT DR further drew our attention towards the judgment of Hon’ble Calcutta High Court in the case of India Ferro Alloy Industry (P) Ltd., VS cit, (1993) 202 ITR 671 (Cal) and submitted that what is required for completion of the assessment is the determination of the tax liability and issue of demand notice but certainly not the service of the same on the assessee, therefore, the findings and conclusion arrived at by the Tribunal in the order dated 16.5.2018(supra) under challenge are not according to the preposition rendered by Hon’ble High Court and Co-ordinate Benches of the Tribunal. 6. Further placing reliance on the judgment of Hon’ble A.P. High Court in the case of Kodidasu Appalaswamy and Suryanarayana vs CIT (1962) 46 ITR 735(AP), ld CIT DR submitted that when it was not disputed that the order was in fact passed by the Income tax Officer within the period prescribed, then the date on which the notice of demand and the copy of the order of assessment were served on the assessee was not at all material as the language of section 34(3) of 1922 Act is very clear and unambiguous. Ld CIT DR has placed reliance on the judgment of Hon’ble Gauhati High Court in the case of Ramanand Agarwalla vs CIT, (1984) 17 taxman 305 (Gauhati) and submitted that section 153 of the Act requires an ITO to pass an order of assessment within the period prescribed in the Act. It does not require that the demand notice should also be issued within that period. The words ‘order of assessment’ cannot be construed so as to M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page16 | 24 include a demand notice as well. The demand notice does not form part of the order of assessment as is evident from the provisions of section 156 of the Act. The demand notice is prepared after the assessment order is passed and aa tax or interest of penalty, etc is found payable by the assessee in consequence of that order. Therefore, it could not be accepted that the demand notice should also be issued within the period of limitation for passing assessment orders as per section 153B of the Act. 7. Ld CIT DR also vehemently pointed out that the preposition rendered by Hon’ble Karnataka High Court in the case of CIT vs B J N Hotels Ltd., (2017) 79 taxmann.com 336 (Kar), which has been incorrectly applied by the Tribunal while granting relief to the assessee. Ld CIT DR also submitted that in the case of Kothakota Rama Rao vs ACIT in ITA No.132/CTK/2018 for the assessment year 2013-14, order dated 31.8.2010 (latest decision on this issue), the ITAT Cuttack Bench, considering the fact that the AO had passed assessment order u/s.153A of the Act on 29.12.2017 but these were served on the assessee on 15.1.2018. Adjudicating the contention of the assessee that these orders were barred by limitation and thus liable to be quashed, the Tribunal in para 11 held that the said assessment orders u/s.153A had been made within prescribed time limit as there was no mention of service of notice in the relevant provisions of the Act. It was also observed by the Tribunal that unlike section 143(2) , wherein, the word M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page17 | 24 “service” was mentioned, in the section 153B the words “made” has been used. Therefore, the legal ground raised was dismissed by the ITAT. In view of above, ld CIT DR submitted that miscellaneous petitions of the department may kindly be allowed recalling the order of the Tribunal dated 16.5.2018(supra) under challenge. 8. Replying to above, ld A.R. submitted that the contentions raised in the petition cannot be regarded to be a mistake apparent from the record. He also submitted that the Tribunal does not have any power to review its own order. Ld A.R. filed a copy of the recent judgment dated December 3, 2021 of Hon’ble Supreme Court in the case of CIT vs Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC) and submitted that if the Revenue feels the order of the Tribunal is erroneous, then the remedy available on the Revenue to prefer an appeal before the Hon’ble High Court. 9. Ld AR drew our attention towards relevant provisions of clause (a) and (b) of sub-section (1) of Section 153B of the Act and submitted that the AO is required to pass assessment order in both kind of cases i.e. in the case of six assessment years and in the year of search within a period of two years from the end of the financial year in which the last of authorisations for search under section 132 or for requisition under section 132 was executed. Therefore, assessment years 2009-10 to 2014-15, the M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page18 | 24 block period of six years and year of search i.e. assessment year 2015-16 cannot be discriminated for the purpose of time limitation as per provisions of the Act available for the AO for passing the assessment orders. Ld A.R. also drew our attention to paragraphs 3.1 to 7 of the judgment of Hon’ble Supreme Court in the case of Reliance Telecom Ltd (supra) and submitted that the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. The Tribunal is not allowed to revise its order in the garb of rectification application, therefore, the miscellaneous petitions filed by the revenue be dismissed. 10. We have considered the rival submissions and perused the material on record as well as the order of the Tribunal. First of all, we take respectful cognizance of the fact that the Revenue has filed appeal before the Hon’ble High Court of Orissa against the order of the Tribunal under challenge dated 16.5.2018, as informed by the ld CIT DR. We also noted that Revenue, by filing this Misc. Application, desires this Tribunal to review its own order. This Tribunal, in our opinion, does not have any power u/s 254(2) to review its own order. The power vested with the Tribunal relates to the mistake apparent on record. The mistake apparent on record means that the mistake must be apparent on the face of the record. The Tribunal, after considering the grounds raised in appeal, decided the appeal and passed the order. If the Revenue has any grievance against the order of the M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page19 | 24 Tribunal, the Revenue can go before the High Court by filing appeal u/s 260A. The Tribunal cannot recall its own order in the garb of power vested u/s 254(2) of the Act. Recalling of the order will tantamount to rehearing of the appeal. This power is not vested with the Tribunal. The Tribunal after considering the submissions of both the parties has passed the order discussing the provisions of the law. We find that the Hon’ble Supreme Court in the case of Reliance Telecom Ltd (supra) in a recent judgment has held the order passed by the ITAT recalling its earlier order is beyond the scope and ambit of the powers under Section 254(2). In exercise of powers under Section 254(2), the ITAT may amend any order passed by it to rectify any mistake apparent from the record only. The Tribunal cannot revisit its earlier order and go into detail on merits. The powers under Section 254(2) are only to correct and/or rectify the mistake apparent from the record. 11. We also feel it profitable to reproduce paras 3.1 to 7 of the judgment of Hon’ble Supreme Court in the case of Reliance Telecom Ltd (supra), which read as follows: “3.1 We have considered the order dated 18.11.2016 passed by the ITAT allowing the miscellaneous application in exercise of powers under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013 as well as the original order passed by the ITAT dated 06.09.2013. 3.2. Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is beyond the scope and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page20 | 24 has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under Section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 06.09.2013 which has been passed in exercise of powers under Section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under Section 254 (2) of the Act. Therefore, the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page21 | 24 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 7. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court as well as the common order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 06.09.2013 passed in the respective appeals preferred by the Revenue are hereby restored. “ 12. In our humble opinion, the issue regarding the scope of powers of the Tribunal under section 254(2) of the Act has been settled by the Hon’ble Supreme Court in the case of Reliance Telecom Ltd (supra) and thus, the same is no more res integra . 13. From the contention of ld CIT DR placed in the form of written submission as well as precise arguments during the course of hearing before the Bench, we are of the considered view that the case M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page22 | 24 laws/citations relied upon by ld CIT DR may be relevant in favour of the Revenue if this Bench is hearing original second appeal of the assessee or the department but we are cautious that we are not hearing the original second appeal. We have to adjudicate the limited and narrow issue as to whether there is apparent mistake in the order of the Tribunal dated 16.5.2018 (supra) under challenge. Therefore, in view of recent judgment of Hon’ble Supreme Court in the case of Reliance Telecom Ltd (supra) we are not required to go into detail of case laws/citations relied upon by ld CIT DR. Accordingly, we respectfully hold that the benefit of case laws/citations relied upon by ld CIT DR, as noted above, is not available for the Revenue in the present M.As filed u/s. 254(2) of the Act, considering the scope of powers of the Tribunal under the said provisions and prepositions rendered by Hon’ble Supreme Court in the case of Reliance Telecom Ltd (supra). 14. Therefore, respectfully following the prepositions rendered by Hon’ble Supreme Court in the case of Reliance Telecom ltd (supra), we hold that in the instant case, a detailed order has already been passed by the Tribunal allowing the legal ground of the assessee challenging the assessment orders alleged same as being passed beyond the prescribed time limit as per section 153B of the Act. At the same time, we are of the considered view that findings and conclusions recorded by the Tribunal cannot be revised in the garb of rectification petitions u/s.254(2) of the Act. The Tribunal may amend or rectify any order passed by it only the M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page23 | 24 mistake apparent from the record. In the present case, the mistake alleged by the department in these M.As is not a mistake apparent from record and if such kind of allegation/mistake are considered while adjudicating M.A. u/s.254(2) of the Act, then it would amount to re-decide or revise the Tribunal order, which is not permissible. In the above of Judgement, Their Lordships, speaking for the Hon’ble Supreme Court, categorically held that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As per the observations noted above, if the order passed was erroneous on merits, in that case, the remedy available to the assessee to prefer appeal before the Hon’ble High Court, which in fact, was filed by the assessee before the Hon’ble High Court but later withdrawn same in the instant case. 15. In the present case at hand, the revenue has filed appeal before the Hon’ble High Court of Orissa against the order of the Tribunal dated 16.5.2018(supra), as informed by ld CIT DR, before this Bench. 16. In view of aforesaid foregoing, we are of the considered opinion that the Tribunal has passed order after considering the rival submissions of both the sides and material placed on record. As per the provisions of section 254(2) of the Act, this Tribunal has no power to revise the earlier order, hence, M.As. filed by the revenue are dismissed. M.A.Nos.54 to 59/CTK/2018 (in IT9SS)A Nos.32 to 37/CTK/2018) Assessment Years: 2009-10 to 2014-15 M.A.No.49/CTK/2018 (in IT(ss)A No.109/CTK/2018: Asst. Year: 2015-16 Page24 | 24 17. In the result, M.As filed by the revenue are dismissed. Order pronounced on 28 /2/2022. Sd/- sd/- (Chandra Mohan Garg) (Arun Khodpia) JUDICIAL MEMBER ACCOUNTANT MEMBER Cuttack; Dated 28 /02/2022 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : ACIT, Central Circle-1, Berhampur 2. The Respondent. M/s. Nidan, Infront of DIG Officer, Sales Tax road, Berhampur 3. The CIT(A)-2, Bhubaneswar 4. Pr.CIT-2, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//