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TMI Blog2021 (11) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment concluded under section 143(3) of the Act for Assessment Year 2013-14 dated 29.09.2015 in the case of the assessee, a sum of Rs. 4,23,825/- was added to the income declared in the return of income under the heard "Capital Gains". The CIT in exercise of his powers u/s.263 of the Act was of the view that the aforesaid order of the AO allowing deduction to the assessee under section 54/54F of the Act while computing capital gain was erroneous and prejudicial to the interest of the Revenue. The CIT accordingly issued a show cause notice dated 12.03.2018. The CIT, after considering the reply to the show cause notice under section 263 of the Act, held that the order of the AO was erroneous and prejudicial to the interest of the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the order. It is plea of the assessee, based on the decision of the Hon'ble Karnataka High Court in the case of CIT Vs. PJN Hotels Ltd., 382 ITR 110 that the date of dispatch of the order should be taken as the date of the order because that is the point of time at which the authority would lose control of modifying or changing the order. 5. In the light of the admitted position of date of dispatch of the impugned order only on 4.4.2018 to the postal authority, the question for consideration is whether the date of dispatch has to be considered as the date of the order and consequently the impugned order has to be held as bad in law and barred by limitation. 6. On the above question, the ld. counsel for the assessee has drawn our a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation. In that view of the matter, the additional substantial question of law framed today is answered in favour of the assessee and against the revenue. Accordingly, the appeal is allowed. The impugned orders are set-aside." 9. In our view, the facts of the aforesaid case are squarely applicable to the facts of the present case. Following the aforesaid judgment of Hon'ble High Court of Karnataka, the impugned order has to be held as barred by time and is liable to be annulled and is hereby annulled. 10. In the result, the appeal of the assessee is allowed on the preliminary ground of limitation. The other grounds of appeal are not taken up for consideration in view of the conclusion of the preliminary ground of appeal. 11. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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