2019 (2) TMI 789 - AT - Income Tax

Assessment u/s 153A - assessment being time barred - Held that - As perused the relevant records especially the documentary evidences filed by the assessee in the Paper Book as mentioned above and the Written Submissions filed by both the parties, especially the Written Submissions of the CIT(DR) and we are of the considered view that in this case the AO has passed the assessment order on 28.03.2013 and according to the evidence of the postal authority which we have reproduced under para no. 5.1 at page no. 14 & 15 of this order. We are also of the view that the assessment order dated 28.03.2013 has been dispatched on 01.04.2013. Therefore, keeping in view of the order passed in the case of Sri Trinadh Chowdary vs. ACIT, Corporate Circle 1(2), Bhubaneswar & Ors. 2018 (9) TMI 1798 - ITAT CUTTACK we are of the considered view that assessment in dispute is time barred, hence, respectfully following the ITAT, Cuttack Bench decision in the case of Sri Trinadh Chowdary vs. ACIT (Supra), we set aside the assessment order and allow the ground no. 1 raised by the assessee

Summary

Issues Involved:
1. Whether the assessment order passed under Section 153A/143(3) of the Income Tax Act, 1961 is barred by limitation.
2. Whether the principles of natural justice were violated due to the lack of an opportunity for the appellant to be heard before passing the assessment order.

Detailed Analysis:

Issue 1: Limitation of Assessment Order
The primary issue raised by the assessee was that the assessment order dated 28.03.2013, passed under Section 153A/143(3) of the Income Tax Act, 1961, was barred by limitation. The assessee argued that although the order was dated 28.03.2013, it was not served until 18.04.2013, thus beyond the statutory limit.

The Tribunal examined the relevant facts, including the notice issued under Section 153A dated 18.09.2012, the return filed by the assessee on 17.01.2013, and the subsequent assessment order. The assessee contended that the order was antedated to appear as if it was passed on 28.03.2013, while it was actually completed later.

The CIT(DR) argued that the assessment was completed within the statutory period, as the order was passed on 28.03.2013 and dispatched on 31.03.2013. The CIT(A) also supported this view, stating that the law requires the assessment to be made within the given period, not necessarily served within that period.

However, the Tribunal found merit in the assessee's contention, supported by evidence of postal booking and dispatch records indicating that the order was dispatched only on 01.04.2013. The Tribunal referred to several judicial precedents, including decisions from the ITAT Cuttack Bench and the Hon'ble Karnataka High Court, which emphasized that an order must be communicated within the statutory period to be considered valid.

The Tribunal concluded that the assessment order was indeed barred by limitation, as it was dispatched after the statutory period had expired. Consequently, the assessment order was set aside.

Issue 2: Violation of Principles of Natural Justice
The assessee also argued that the principles of natural justice were violated as no opportunity for a hearing was provided before the assessment order was passed. The Tribunal noted that this issue was not specifically adjudicated upon due to the resolution of the primary issue regarding the limitation of the assessment order. Since the assessment order was set aside on the ground of being time-barred, the Tribunal did not find it necessary to address the issue of natural justice separately.

Conclusion:
The Tribunal allowed the appeals filed by the assessee, setting aside the assessment orders for the relevant assessment years 2010-11 and 2011-12 on the ground that they were barred by limitation. The Tribunal did not adjudicate on the other grounds raised by the assessee, as the primary issue regarding the limitation was decided in the assessee's favor. The appeals were partly allowed, and the orders pronounced on 08-02-2019.