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TMI Blog2016 (5) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... that the AO who passed the assessment order ceased to have any control over such order and that it left his hand soon after it was passed. The Department having failed to do so, a presumption has to be drawn that the final assessment order was not passed within the time period specified under Section 144(C) (4) read with Section 144(C)(3) of the Act. In that view of the matter, the impugned assessment order dated 22nd April, 2013 under Section 143(3) of the Act and the consequent penalty order dated 26th June, 2013 under Section 271(1)(c) of the Act and the notice dated 22nd April, 2014 under Section 221 of the Act are hereby quashed. - Decided in favour of assessee - W.P.(C) 3648/2014 - - - Dated:- 18-5-2016 - S.MURALIDHAR VIBHU BAKHRU JJ. For the Appellant: Mr Ajay Vohra, Senior Advocate with Mr Aditya Vohra, Advocate. For the Respondent: Mr Dileep Shivpuri, Senior Standing Counsel and Mr Sanjay Kumar, Junior Standing Counsel. O R D E R Dr.S. Muralidhar, J.: 1. The challenge in this writ petition by ST Microelectronics Pvt. Ltd. is to: (a) an assessment order dated 22nd April, 2013 passed by the Additional Commissioner of Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed a draft assessment order dated 18th March, 2013 under Section 144C of the Act consistent with the addition proposed by the TPO. The AO made further addition on account of training expenses. The total income was thereafter assessed at ₹ 87,92,52,013/-. This draft assessment order was also sent to the Petitioner at the changed address and was received by the Petitioner on 22nd March, 2013. 7. It is pointed out that under Section 144(C)(2) of the Act, the Assessee has an option of filing an appeal before the Commissioner of Income Tax (Appeals) ['CIT(A)'] against the additions as proposed in the draft order or file objections to the variation with the Disputes Resolution Panel ('DRP') as well as the AO. Under Section 144(C)(2) of the Act, the Assessee has a time period of 30 days from receipt of the draft assessment order to exercise the above options. Where the Assessee informs the AO of the acceptance of the variation as proposed or if no objections are received by the AO or the DRP within 30 days of the Assessee receiving the draft order, then under Section 144C (3), the AO has to complete the assessment on the basis of the draft order. The time perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner, accordingly, asked for copies of the said orders along with proof of despatch of the same to enable the Petitioner to verify the date of service of the said order and notice. It was thereafter that the DCIT provided the Petitioner with the final assessment order dated 22nd April, 2013 along the notice of demand under Section 156 of the Act of the same date. The petitioner was also provided with the penalty notice dated 5th June, 2013 under Section 271(1)(c) of the Act, the penalty order dated 26th June, 2013 under Section 271(1)(c) of the Act along with the notice of demand under Section 156 of the Act and the notice dated 26th March, 2014 under Section 221(1) of the Act. 14. In its letter dated 15th May 2014, the Petitioner pointed out to the DCIT that the aforementioned documents were issued only at the old address of the Petitioner even though the change of address was updated and within the knowledge of the department and the fact that after the change of this address every communication had been served on the Petitioner by the Department at the changed address. The Petitioner specifically requested the DCIT to furnish it with the following information:- a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply and required the records to be kept ready for perusal by the Court. 18. At this stage, it is required to note that the Petitioner's specific case is that the final assessment order was not passed on the date mentioned therein, i.e., 22nd April, 2014 and was probably antedated in order to avoid the expiry of the period of limitation as stipulated under Section 144(C)(4) of the Act read with Section 144(C)(3) of the Act. The specific pleadings in this regard are to be found in paras in the following paragraphs 13, 16 18 of its petition, the relevant portions of which read as under: 13. Petitioner filed letter with the First Respondent clearly stating the above mentioned facts and pointing out that the above mentioned documents were all issued at the old address of the Petitioner company even when the entire communication with the Petitioner was from current address of the company. The said documents were never received by the Petitioner. The Petitioner also filed affidavit stating that the said documents were never received by the company. It was specifically pleaded that the Assessment order passed is verbatim copy of the draft assessment order and when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have to be quashed as being time barred. What has precipitated the matter in the present case is that the Respondents have interpolated the orders and have tried to cover up the expiry of the limitation by issuing an order while addressing it at the old address of the Petitioner. This gross misuse of administrative powers cannot be condoned and is not an appealable Act. 19. The fact of the matter is that no counter affidavit has been filed to rebut any of the above averments, but even the record that has been produced does not reveal any proof of despatch of the assessment order soon after it was passed, i.e., on or after 22nd April, 2013. This is, as noted earlier, despite several opportunities given to the Respondent. 20. The only way to effectively rebut the above assertion of the Petitioner, particularly, in view of the absence of any other proof of despatch of the assessment order either on the same date or soon thereafter would have been for the AO himself to have filed an affidavit verifying that he, in fact, passed the final assessment order on the date mentioned in the assessment order, i.e., 22nd April, 2013. 21. It requires also to be noticed at this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch or service of such order on the Assessee. 25. Mr Vohra does not dispute the general proposition that an assessment order should be taken to have been passed on the date of the assessment order and that the date will not get postponed to the date of its service on the Assessee. However, he urges that it is essential that the order must have been despatched for being served on the Assessee. He placed reliance on the decision of the Supreme Court in Collector of Central Excise, Madras v M.M. Rubber and Co., Tamil Nadu AIR 1991 SC 2141. 26. There is an important aspect that has been pointed out by the Supreme Court in Collector of Central Excise, Madras v M.M. Rubber and Co. (supra) regarding the officer who passed the order ceasing to have any authority to change it or vary it. This can be ensured only when such order leaves the hand of the officer making the order. In para 12 of the judgment after discussing the earlier case law the Supreme Court observed as under: It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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