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2019 (1) TMI 295 - AT - Income TaxApplicability of provisions of section 153(2A) - contention of the assessee was that through the orders of assessment was dated 30.12.2011, those orders were despatched only on 09.01.2012 through the Bangalore GPO through Speed Post to the assessee and the same was served on the assessee only on 10.01.2012 - period of limitation - whether the date of despatch has to be construed as the date of order of assessment and consequentially the orders of assessment have to be held as bad in law? - Held that - It is undisputed that the order of assessment was despatched by the AO only on 09.01.2012 and that the last date of limitation for passing the order of assessment, pursuant to the directions of the Tribunal in all the three assessment years was 31.12.2011 as relying on M/S MAHARAJA SHOPPING COMPLEX VERSUS THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1 (2) 2014 (10) TMI 880 - KARNATAKA HIGH COURT the orders of assessment have to be held as barred by time and all the orders of assessment are therefore liable to be annulled and are hereby annulled. - decided in favour of assessee
Issues Involved:
1. Limitation period for passing the order of assessment. 2. Validity of the assessment orders based on the date of despatch versus the date of the order. Detailed Analysis: 1. Limitation Period for Passing the Order of Assessment: The primary issue raised by the Assessee was that the assessment orders dated 30.12.2011 for AYs 2001-02 to 2003-04 were barred by limitation as per Section 153(2A) of the Income Tax Act, 1961. The Assessee argued that the orders were dispatched on 09.01.2012 and received on 10.01.2012, beyond the stipulated period ending on 31.12.2011. The Tribunal noted that the relevant provision, Section 153(2A), mandates that an order of fresh assessment must be made within nine months from the end of the financial year in which the Tribunal’s order was received by the Commissioner. In this case, the last date for passing the order was 31.12.2011. The Tribunal observed that the orders were dispatched only on 09.01.2012, thus raising the question of whether the date of despatch should be considered as the date of the order. 2. Validity of the Assessment Orders Based on Date of Despatch: The Tribunal referred to the decision of the Hon’ble High Court of Karnataka in Maharaja Shopping Complex v. DCIT, which held that an order is not considered passed unless it is pronounced, published, or the party affected has the means of knowing it. The High Court emphasized that an order must be issued beyond the control of the authority concerned within the prescribed period to be valid. Applying this principle, the Tribunal concluded that the date of despatch should be construed as the date of the order. Since the orders were dispatched on 09.01.2012, they were beyond the limitation period of 31.12.2011, making them barred by time. The Tribunal also considered a contrary decision by the Hon’ble Calcutta High Court in CIT v. Subrata Roy, which held that an assessment order passed within the limitation period cannot be doubted merely because the demand notice was served later. However, the Tribunal chose to follow the jurisdictional High Court's decision, which is binding. Conclusion: The Tribunal annulled the assessment orders for being barred by time, following the jurisdictional High Court’s ruling that the date of despatch should be considered the date of the order. Consequently, the appeals of the Assessee were allowed, and the appeals by the Revenue were dismissed. The Tribunal did not adjudicate other issues raised due to the decision on the preliminary point of limitation. Pronouncement: The judgment was pronounced in the open court on 04th January 2019.
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