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TMI Blog2023 (2) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... DR ORDER Per George George K., JM This appeal at the instance of the assessee is directed against CIT(A)'s order dated 29.07.2022. The relevant assessment year is 2017-2018 2. The grounds raised read as follows:- 1. The order of the learned Commissioner of Income tax (Appeals) passed under Section 250 of the Act in so far as it is against the Appellant is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant's case. 2. The Appellant denies himself liable to be assessed on total assessed income of Rs. 6,94,42,960/- as determined by the learned assessing officer and upheld by the learned CIT(A), as against the returned income by the Appellant of Rs. 5,94,42,960/- under the facts and circumstances of the case. 3. Grounds on assessment order being barred by Limitation. (i) The learned Commissioner of Income tax (Appeals) failed to appreciate that the assessment order passed by the learned assessing officer under section 153A r.w.s. 143(3) of the Act is barred by limitation on the facts and circumstances of the case. (ii) The learned Commissioner of Income tax (Appeals) erred in not calling for the disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. (iii) The learned Commissioner of Income tax(Appeals) failed to appreciate that the notice issued under section 153A of the Act is bad in law under the facts and circumstances of the case. (iv) The learned Commissioner of Income tax (Appeals) failed to appreciate that the satisfaction regarding the inference of liability must be recorded and in the absence of the same, the proceedings is bad in law and liable to be quashed totally on the facts and circumstances of the case. (v) The learned Commissioner of Income tax (Appeals) failed to appreciate that assessment made u/s. 153A r.w.s. 143(3) of the Act is bad in law when neither any incriminating material was found in the course of search nor any addition has been made in the assessment on the basis of material seized during the course of search in the case of the Appellant on the facts and circumstances of the case. (vi) The learned Commissioner of Income tax (Appeals) failed to appreciate that a valid search is a sine qua non for making a valid assessment under section 153A of the Act on the parity of ratio of the decision of the Hon'ble Apex Court in the case of Ajit Jain reported in 260 ITR 80 on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) erred in upholding the addition made without appreciating that the section 69 of the Act is not applicable in the case of the Appellant under the facts and circumstances of the case. (iii) The addition confirmed by the Commissioner of Income tax (Appeals) is not in accordance with law under the facts and circumstances of the case. (iv) The finding of the learned Commissioner of Income tax (Appeals) for confirming the addition of Rs. 1,00,000/- is perverse on the facts and circumstances of the case. 8. The learned Commissioner of Income tax (Appeals) erred in not admitting the additional grounds of appeal filed by the Appellant before the learned Commissioner of Income tax (Appeals). '4. The learned Assessing Officer failed to appreciate that the search conducted in the case of the appellant is not a valid search and the conditions contemplated under section 132 of the Act have not been complied and more so when no addition was made in the case of the appellant based on the materials seized in the course of search of the appellant on the facts and circumstances of the case.' 9. The learned Commissioner of Income tax (Appeals) erred in not admitting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the impugned order dated 29.07.2022. 5. Aggrieved by the impugned order of the ld. CIT(A), the assessee has filed the present appeal before the Tribunal. The assessee has filed a paper book comprising of sixty seven pages, enclosing therein the written submission filed before the income tax authorities, the details with regard to the dispatch of the assessment order, the case laws relied on etc. The ld. AR submitted the assessment order is barred by limitation since the same has been dispatched only on 07.04.2015. It is submitted that the assessment order should be issued from the office of the AO within the time limit i.e 31.03.2015 and the dispatch seal of postal authority being 07.04.2017, the assessment order is barred by limitation. In this context, the ld. AR relied on the judgment of the Hon'ble jurisdictional High Court in the case of M/s. Maharaja Shopping Complex vs. DCIT in ITA No. 832/2008 dated 14.10.2014 and the order of the Tribunal in the case of M/s. Globe Transport Corporation vs. ACIT in ITA No. 629-631/Bang/2014 (order dated 04.01.2019). 6. The ld. DR on the other hand submitted the order has been made within the date of limitation period and dispat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Jurisdictional High Court in the case of M/s. Maharaja Shopping Complex vs DCIT (supra). The relevant observation of the Hon'ble High Court reads as follows:- 5. Learned Counsel for the revenue is unable to point out from the records whether the assessment order was dispatched from the office before 31.03.2006. Therefore, it is clear when the same was received by the assessee on 18.04.2006, it might have been dispatched few days prior to that an subsequent to 31.03.2016. In that view of the matter, the law laid down as aforesaid squarely applies to the facts of this case and therefore, any just conclusion that could be reached is that the order passed is barred by limitation . 9. The Hon'ble Supreme Court in the case of B.J. Shelat vs. State of Gujarat reported in AIR 1978 SC 1109 had held for the proviso to become operative it is necessary Government should not only take a decision but communicate it to the Government Servant. It is not necessary that the communication should reach the Government Servant. It would be sufficient if such order is sent out and goes out of control of the appointing authority before the relevant date. Further, it was observed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cknowledgment. 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 assessment order passed on 30/12/2011 but served on the appellant on 09/01/2012 was not barred by limitation u/s. 153(2A) of the Act. The appeal in this ground is therefore dismissed. 9. Aggrieved by the aforesaid order of CIT(Appeals), the assessee has raised ground No. 2 before the Tribunal, which we have set out in the earlier part of this order. 10. We have heard the rival submissions. As we have already observed, it is undisputed that the order of assessment was despatched by the AO only on 09.01.2012 and that the last date of limitation for passing the order of assessment, pursuant to the directions of the Tribunal in all the three assessment years was 31.12.2011. The question which arises for consideration is, whether the date of despatch has to be construed as the date of order of assessment and consequentially the orders of assessment have to be held as bad in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 within the period of four years prescribed in Section 35(2) of the Act. The Tribunal will adjudicate the matter in the light of the observations contained herein and in the judgment in the case of Malayil Mills (T.R.C. Nos. 15 and 16 of 1981 decided on 7th June, 1982 - Kerala High Court) extracted earlier. 13. The Hon'ble Kerala High Court thereafter held that the date of despatch of the order of assessment should be construed as the date of order of assessment and consequently quashed the orders of assessment as barred by limitation with the following observations:- 5. Learned counsel for the revenue is unable to point out from the records whether the assessment order was dispatched from the office before 31.03.2006. Therefore, it is clear when the same was received by the assessee on 18.04.2006, it might have been dispatched few da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be said to be dispatch with the limitation period (i.e 31.03.2015 in this case), though the actual service of the order may be beyond that period. 14. The ld. DR had relied on the judgment of the Hon'ble Supreme Court judgment in the case of CIT vs. Mohammed Meeran Shahul Hameed (supra). The judgment of Hon'ble Apex Court relied on by the ld. DR is distinguishable on facts. In the above said case, the revisionary order u/s. 263 of the I.T. Act was to be passed on or before 31.03.2012. The order of the ld. CIT was passed u/s. 263 of the I.T. Act on 26.03.2012. There was a categoric finding, the order of the ld. CIT(A) passed u/s. 263 of the I.T. Act was dispatched within the period of limitation i.e on 28.03.2012. Whereas in the instant case, the evidence on record clearly point out that dispatch of the assessment order was not within period of limitation so as to go beyond the control of the AO. For the aforesaid reasoning and judicial pronouncement cited supra, we hold that the assessment order is barred by limitation. 15. Since we had decided that the assessment order is barred by limitation. The other grounds with regard to the merits is not adjudicate and are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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