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TMI Blog2019 (1) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... s the aforesaid ground of appeal raised by the Assessee are that the Assessee which is a partnership firm, is engaged in Transport business. For AYs 2001-02 to 2003-04, the Assessee filed returns of income on 23.10.2001, 31.10.2002 and 28.11.2003 respectively. In AY 2001-02 an order of assessment u/s.143(3) of the Act dated 3.3.2003 was passed. As far as AY 2002¬03 is concerned, the return of income was processed u/s.143(1) of the Act on 3.3.2003. As far as AY 2003-04 is concerned the return of income was processed u/s.143(3) of the Act on 7.7.2004. 4. The Assessment for AYs 2001-02 to 2003-04 were reopened by issue of notice u/s.148 of the Act. Notice u/s. 148 of the Act was issued dated 12.12.2007 for AYs 2001-02 & 2002-03 and dated 18.03.2007 for the AY 2003-04. In the assessment completed for all the 3 assessment years, additions were made to the total income of the assessee on account of inflation of expenses, disallowance u/s. 40A(3), unexplained investments in purchase of trailer and other additions. 5. Aggrieved by the additions in the aforesaid orders of assessment, the assessee filed appeal before the CIT(Appeals), who by three orders all dated 12.11,2009 gave parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing contained in sub-sections (1), (1A), (1B) and (2), in relation to the assessment year commencing on the 1st day of April, 1971, and any subsequent assessment year, an order of fresh assessment in pursuance of an order under section 250 or section 254 or section 263 or section 264, setting aside or cancelling an assessment, may be made at any time before the expiry of one year from the end of the financial year in which the order under section 250 or section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner: Provided that where the order under section 250 or section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, on or after the 1st day of April, 1999 but before the 1st day of April, 2000, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on which the order of Tribunal is received by the Commissioner. The period of limitation if reckoned as per those provisions is 31.12.2011. The plea of the assessee before the CIT(Appeals) was that though the order of assessments were dated 30.12.2011 and appear to be within the period of limitation of 31.12.2011 for passing the order of assessment in terms of section 153(2A) of the Act, yet the date of order of assessment has to be reckoned as 09.01.2012, the date on which the order was despatched by the AO. On such contention, the assessee pleaded before the CIT(Appeals) that the order of assessment is barred by time and is liable to be annulled. On such a plea, the CIT(Appeals) held that the order of assessment is within time with the following observations:- "2.5 In the instant case, the date of assessment order was mentioned on 30/12/2011 and sent by Registered Post with Acknowledgment. In the remand report also, the present AO held that the assessment was concluded on 30/12/2011. Further, a perusal of the order sheet shows that the completion of date of assessment order was on 30/12/2011. In view of the ratio of the decision of the various High Courts as cited above, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it should be issued, so as to be beyond the control of the authority concerned, for any possible change or modification therein. This should be done within the prescribed period, though the actual service of the order may be beyond that period. This aspect of the matter had not come up for consideration in the cases of Viswanaihan Chettiar [1954] 25 ITR 79 (Mad.) and Laxmidas & Co. [1969] 72 ITR 88 (Bom) where the only question dealt with was whether service of the order after the prescribed period rendered it invalid. Unless, therefore, the order of the Deputy Commissioner in this case had been so issued from his office within the period prescribed, it has to be held that the proceedings are barred by limitation. This question has not been considered by the Tribunal. The Tribunal, which passed the order, apparently did not have the benefit of the decision in Malayil Mills case (T. R. C. Nos. 15 and 16 of 1981 decided on 7th June, 1982-Kerala High Court) which, so far as we could see, remains, unreported. The matter has therefore to go back to the Tribunal for an examination of the records to ascertain whether the order of the Deputy Commissioner had been issued from his office wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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