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TMI Blog2022 (7) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... .2022 is to be excluded for the purpose of computing the limitation period during the COVID-19 pandemic. Further, a period of 90 days is allowed after 28.02.2022 vide same order. Considering the facts and the explanation of the assessee placed on record, we condone the delay in filing the appeal and admit it for adjudication. 3. Before us, Shri Akshay Ringasia, CA & Shri Tarak Nath Jaiswal, Advocate represented the assessee and Shri Deb Kr. Sonowal, CIT, DR represented the department. 4. The solitary ground taken by the assessee in Form 36 filed in the present appeal is on challenging the jurisdiction assumed by the ld. CIT(E) for invoking the provisions of section 263 of the Act and passing the order therein. In the course of hearing before the Tribunal, assessee took an additional ground vide its submission dated 30.06.2022 and prayed for its admission and adjudication. The additional ground taken by the assessee is reproduced as under: "That the order passed by the Ld. PCIT is null and void as it fails to mention any DIN number on its body or adhere to Circular No. 19/2019 by the CBDT." 5. Assessee states that it is filing an additional ground with the leave of this Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assistant Commissioner of Income-tax, Circle-1(1) (Exempt), Kolkata. Case of assessee was selected for scrutiny for which statutory notices were issued and were complied by the assessee. Assessment was completed for which the order was passed u/s. 143(3) of the Act dated 04.12.2018 determining total income at Rs. NIL. Subsequently, Ld. CIT(E), Kolkata initiated revisionary proceeding u/s. 263 of the Act proposing to revise the aforementioned assessment order for which a show cause notice dated 23.03.2021 was issued on the assessee, placed in the paper book at pages 55 to 57. The said show cause notice required the assessee to submit its reply within six days i.e. by 30.03.2021. Assessee filed its reply on 30.03.2021 and the Ld. CIT(E) passed the impugned order u/s. 263 of the Act on 31.03.2021 by rejecting the contentions of the assessee. Aggrieved, assessee is in appeal before this Tribunal. 8. Before delving into the grounds of appeal set forth in the Memorandum of Appeal in Form 36 filed by the assessee, Ld. Counsel for the assessee insisted and prayed to adjudicate upon the additional ground (supra) which goes to the root of the matter, it being a legal issue affecting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case records can be referred to ascertain if the DIN was actually generated or not and it is merely an inadvertent mistake because of which it remained to be quoted in the impugned order. He thus strongly opposed to the contentions made by the Ld. Counsel claiming to hold the impugned order as 'invalid or deemed to have never been issued'. 11. We have heard the rival submissions and perused the material available on record and given our thoughtful consideration to the submissions made by both the parties. Before adverting on the issue in hand, the CBDT Circle No. 19/2009 dated 14.08.2019, copy of which is placed in the paper book pages 68-69, is reproduced hereunder for ready reference: Circular No. 19 /2019 Government of lndia Ministry of Finance Department of Revenue Central Board of Direct Taxes New Delhi, dated the 14th August, 2019 Subject: Generation/Allotment/Quoting of Document Identification Number in Notice/Order/Summons/letter/correspondence issued by the Income-tax Department - reg. With the launch of various e-governance initiatives, Income-tax Department is moving toward total computerization of its work. This has led to a significant improvement in de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igration. The communication issued under aforesaid circumstances shall state the fact that the communication is issued manually without a DIN and the date of obtaining of the written approval of the Chief Commissioner/ Director General or Income-Tax for isse uor manual communication in the following format- " .. This communication issues manually without a DIN on account of reason/reasons given in para 3(i)/3(ii)/3(iii)/3(iv)/3(v) of the CBDT Circular No ...dated ............ (strike off those which are not applicable) and with the approval of the Chief Commissioner I Director General of Income Tax vide number .... dated ............ " 4. Any communication which is not in conformity with Para-2 and Para-3 above, shall be treated as invalid and shall be deemed to have never been issued. 5. The communication issued manually in the three situations specified in para 3- (i), (ii) or (iii) above shall have to be regularised within 15 working days of its issuance, by - i. uploading the manual communication on the System. ii. compulsorily generating the DIN on the System; iii. communicating the DIN so generated to the assessee/any other person as per electronically generated p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to have never been issued'. 12.1 On a specific query by the bench to the Ld. CIT, DR to point out if there was any exceptional circumstance which led to the manual issue of the order u/s. 263 of the Act, he pointed out that the only possibility of exceptional circumstance as mentioned in the CBDT Circular, could be as listed in para 3(i) which mentioned that "when there are technical difficulties in generating /allotting/quoting the DIN and issuance of communication electronically". For this he requested for verification of the case records. 12.2 On this aspect, Ld. Counsel for the assessee submitted that it is undisputed and verifiable fact that the impugned order is not an electronic communication but a manual order as is evident from the perusal of the order itself. It is an order which has been passed manually and page 9 of the said order does not even bare a full and proper signature of the Ld. CIT(E), Kolkata. Page 10 of the said order bears the signature of TRO(E), Kolkata, dated 31.03.2021, and therefore, the exception pointed out by the Ld. CIT, DR does not apply in the present case since it is relevant only to a communication which is issued electronically. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, in its body, there is no reference to the fact of this order issued manually without a DIN for which the written approval of Chief Commissioner/Director General of Income-tax was required to be obtained in the prescribed format in terms of the CBDT circular. We also note that in terms of para 4 of the CBDT circular, such a lapse renders this impugned order as invalid and deemed to have never been issued. 13.1 It is also important to note about the binding nature of CBDT circular on the Income-tax Authorities for which gainful guidance is taken from the decision of Hon'ble Supreme Court in the case of CIT v. Hero Cycles [1997] 228 ITR 463 (SC) wherein it was held that circulars bind the ITO but will not bind the appellate authority or the Tribunal or the Court or even the assessee. 13.2 In the case of UCO Bank [1999] 237 ITR 889 (SC), Hon'ble Supreme Court while dealing with the legal status of such circulars, observed thus (page 896): "Such instructions may be by way of relaxation of any of the provisions of the sections specified there or otherwise. The Board thus has power, inter alia, to tone down the rigour of the law and ensure a fair enforcement of its provisions, by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Sunita Finlease Ltd (supra), which are as under: 7. We have considered the rival submissions advanced by the learned Advocates. Even assuming that the intention of CBDT was to restrict the time for selection of the cases for scrutiny within a period of three months, it cannot be said that the selection in this case was made within the aforesaid period. Admittedly, the return was filed on 29th October, 2004 and the case was selected for scrutiny on 6th July, 2005. It may be pointed out that Mrs. Gutgutia was, in fact, reiterating the views taken by the learned Tribunal which we also quoted above. By any process of reasoning, it was not open for the learned Tribunal to come to a finding that the department acted within the four corners of Circulars No.9 and 10 issued by CBDT. The circulars were evidently violated. The circulars are binding upon the department under section 119 of the I.T. Act. 8. Mrs. Gutgutia, learned Advocate submitted that the circulars are not meant for the purpose of permitting the unscrupulous assessees from evading tax. Even assuming, that to be so, it cannot be said that the department, which is State, can be permitted to selectively apply the stan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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