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TMI Blog2009 (7) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of limitation prescribed under law - appeals of the assessee are allowed on question of law - appeals of the Department dismissed - - - - - Dated:- 24-7-2009 - Member(s) : B. R. JAIN., K. S. S. PRASADA RAO. ORDER-K.S.S. PRASAD RAO, J.M.: This is a bunch of 23 appeals preferred by the assessee and the Department for the assessment years stated. Since in all these appeals there is a common question of assessment having been barred by limitation is involved, they were heard together and disposed of by this common order for the sake of convenience. 2. Both the parties were heard regarding the issue of limitation in framing assessment by the AO and its legal implications as detailed herein. 3. On careful consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed within the period of limitation applicable as contemplated under the relevant provisions of law. As per the records maintained during the course of their official functions and records maintained in the office, the orders passed by the AO were handed over to the concerned personnel for service of them on the asses sees on 31st Dec., 2007. Accordingly, they were dispatched to the assessees within the period of limitation provided under law. In that view of the matter, the assessment orders are to be held to be passed within the period of limitation as contemplated under relevant provisions of law. Therefore, the contentions of the assessee that they are to be held as passed beyond limitation period, is not tenable under law. Accordingly h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s so done after making assessment order which stood duly signed along with the making of demand notice/challan for recovery of tax and other notices. Copies of all such demand notices and income-tax Form 36 are also enclosed. The AO thus lost control of the assessment order after he has sought the approval from the superior authority and made entries in the register which are regularly maintained in the Department as a matter of practice and are evidence of making assessment by him. The AO has handed over the assessment order complete in all respect to the dispatch clerk on 31st Dec., 2007 for onward transmission of the same to the assessee and the dispatch clerk has made entries thereof in the dispatch register on 31st Dec., 2007 as per co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in all these matters is 7th March, 2006 and the assessment orders were passed on 28th Dec., 2007. The said orders were dispatched to the assessee on 2nd Jan., 2008 and accordingly served on the assessee. Basing on these undisputed facts, it is found that s. 153B is as follows: "(1) Notwithstanding anything contained in s. 153, the AO shall make an order of assessment or reassessment- (a) in respect of each assessment year falling within six assessment years referred to in cl. (b) of sub-s. (1) of s. 153A within a period of two years from the end of the financial year in which the last of the authorizations for search under s. 132 or for requisition under s. 132A was executed. (b) in respect of the assessment year relevant to the prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered in the case of CIT vs. Kappumalai Estate (1998) 148 CTR (Ker) 565 : (1998) 234 ITR 187 (Ker) and the judgment of the same High Court in the case of K. Joseph Jacob vs. Agrl. ITO Anr. (1991) 190 ITR 464 (Ker), wherein provisions contained in s. 35(2) of Agrl. IT Act were considered wherein same language was used by the legislature. The Hon'ble Kerala High Court has found that the order passed by the concerned officer is beyond the period of limitation and accordingly such an order is ineffective as it is barred by limitation. The facts are that the assessment order is passed on 13th March, 1985 and it was dispatched on 22nd April, 1985 and received by the assessee on 26th April, 1985 for the asst. yr. 1979-80 and orders were passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by limitation. Respectfully following the rule of precedence, in these matters also, in view of no change in the facts and circumstances of the case as well as provisions of law under consideration, we hereby hold that the assessments in all these years are barred by limitation. Therefore, such assessment orders are non est and ineffective under law. Accordingly we find that the issue raised by the assessees is meritorious and it is hereby allowed, in respect of assessments under s. 153A as well as under s. 143(3) of the IT Act. 8. Though both the parties have addressed on the issues relating to merits of the additions also, we are of the considered opinion that in view of holding the assessment orders as non est having been passed be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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