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2022 (12) TMI 1002 - AT - Income TaxRevision u/s 263 - order barred by limitation - Whether date of dispatch be regarded as the date of the order? - HELD THAT - As per the understanding arrived at with the postal department, a person from the said Department visits the Income-Tax Department on a daily basis for collection of posts, and who again provides a receipt to the despatch clerk in token of his acceptance of the article for post. Needless to add that the said record, evidencing the delivery of the posts to the postal department, which acts as the Revenue s agent for delivery of it s communications, etc., and which would be retained only by its dispatch section, is not available. The despatch register also does not bear either the date of delivery to the postal department or the receipt number/date per which it stands delivered thereto. Further, it is not shown that all the Dak of 31/3/2015, which ranges from serial no. 5248 to 5301, was dispatched along with, i.e., only on 07/4/2015, several days later, which could be the case if the person from the postal department indeed did not visit the Income-tax department all this while. Further still, i.e., in case of non-visit of the concerned person from the postal department, which would require suitable confirmation in this regard being issued by the postal department, dak of the intervening days, i.e., 01/04/2015 to 07/04/2015, i.e., five working days later, would also have been dispatched on the same day, i.e., 07/4/2015, besides requiring a confirming statement from the head of the despatch section, on which he is liable to be questioned. The deposition of the despatch clerk, who would not be only staff in that section, so that his absence, assuming so, would not stall matters, may be required to clarify matters. On this being asked by the Bench, Shri Gotru was unable to even state the name of the concerned staff/clerk; rather, stating that it would not be possible for him to do so. What, then, one may ask, is the basis to say that the IO was indeed received for despatch on 31/3/2015, the date on which it is entered in the despatch register a grossly incomplete record, no basis for entry/s in which is shown, with even the identity of the person maintaining the same being conspicuous by its absence, and nothing to exhibit it as an authenticated document, justifying the entries therein. This Bench has recently passed an order in Suresh Kumar Upadhya Sons 2022 (7) TMI 123 - ITAT JABALPUR similarly received by the assessee on 13/4/2017, i.e., 13 days later, was not considered by the Bench as liable to be construed as not made on the date of the order, i.e., 31/3/2017. This is as the date of dispatch (07/4/2017) could not by itself be regarded as the date of the order, even as explained in CIT v. Mohammed Meeran Shahul Hameed 2021 (10) TMI 363 - SUPREME COURT as claimed by the assessee. No other material was brought on record by the assessee, so that the Tribunal held that the presumption of regularity of official acts u/s. 114(e) of the Indian Evidence Act, shall hold. There could be, it explained, several stages before the despatch of an order. We, in view of the foregoing, hold the impugned revision order as not passed on 31/03/2015, so that it is barred by time u/s. 263(2). The same, as well as the ensuing assessment, disputed by the Revenue, accordingly, fail. It is not necessary therefore to travel to the other Grounds of the Assessee s appeal or that by the Revenue, with, as afore-said, the arguments before us being limited to the status of the revision order as a valid order in law in view of the challenge to it being within the time prescribed by law.
Issues Involved:
1. Timeliness of the revision order under section 263 of the Income Tax Act, 1961. 2. Validity of the ensuing assessment. Detailed Analysis: 1. Timeliness of the Revision Order: The primary issue in the assessee's appeal was whether the revision order dated 31/03/2015, under section 263 of the Income Tax Act, 1961, was passed within the prescribed time limit. The assessee contended that the order, though dated 31/03/2015, was not actually passed on that date but later, making it time-barred. The assessee supported this contention with several pieces of evidence: - A reply from the Principal Commissioner of Income Tax, Jabalpur, explaining the dispatch process and indicating that the order was booked for dispatch on 07/04/2015. - An affidavit from a partner in the assessee-firm stating the same. - Correspondence with the postal department confirming receipt of the order for delivery on 08/04/2015. - An order-sheet entry from the Tribunal requiring the Revenue to furnish evidence that the order was passed on 31/03/2015. The Revenue failed to provide satisfactory evidence to support its claim that the order was indeed passed on 31/03/2015. The dispatch register, the only document produced by the Revenue, did not bear the date of delivery to the postal department or the receipt number/date of delivery. The Tribunal noted several discrepancies and lack of authentication in the dispatch register, leading to doubts about its veracity. The Tribunal referred to a recent order in a similar case (Suresh Kumar Upadhya & Sons v. ITO), where the date of dispatch was not considered as the date of the order. However, in the present case, the Tribunal found that the Revenue failed to clarify the delay in dispatching the order and did not provide corroborative material, leading to an adverse inference against the Revenue. The Tribunal concluded that the statutory presumption of regularity of official acts under section 114(e) of the Indian Evidence Act was not applicable in this case. The Revenue's failure to produce necessary evidence led to the conclusion that the revision order was not passed on 31/03/2015, making it time-barred under section 263(2). 2. Validity of the Ensuing Assessment: Since the revision order was held to be time-barred, the ensuing assessment, which was disputed by the Revenue, also failed. The Tribunal did not find it necessary to address other grounds of the assessee's appeal or the Revenue's appeal, as the arguments were limited to the validity of the revision order in terms of its timeliness. Conclusion: The Tribunal allowed the assessee's appeal, holding that the revision order dated 31/03/2015 was time-barred and invalid. Consequently, the ensuing assessment was also invalid. The Revenue's appeal was dismissed. The order was pronounced in open court on December 09, 2022.
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