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TMI Blog2022 (11) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of the approval u/s.153D from the JCIT. It does not prove that the order has been passed on 30.12.2016. A perusal of the order of M/s. Nidan [ 2018 (5) TMI 1024 - ITAT CUTTACK] clearly shows that this issue has been considered by the Tribunal, wherein, it is held that the assessment order therein is barred by limitation, as upheld by the Hon ble Jurisdictional High Court [ 2022 (7) TMI 1444 - ORISSA HIGH COURT] - The assessee, herein, is a partner in M/s. Nidan (supra). Thus, the facts in the case of M/s. Nidan (supra) most specifically in respect of period of limitation would apply paripasu in respect of the assessee also. In these circumstances, we are of the view that the assessment orders passed in assessee s case purported to have been passed on 30.12.2016 is barred by limitation and, therefore, quashed. Appeal of assessee allowed. - S/SHRI GEORGE MATHAN, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER For the Assessee : Shri D.Parida, CA/C.Parida, Adv For the Revenue : Shri M.K.Gautam, CIT DR ORDER Per Bench These are appeals filed by the assessee against the separate orders of the ld CIT(A)-2, Bhubaneswar dated 21.8.2019 in Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Co-ordinate Bench of this Tribunal in the case of M/s. Nidan (supra) by holding in paras 7 to 11 as follows: 7. As rightly noted by the ITAT the requirement under Section 153B (1) is for the AO to make the assessment order within a period of twenty-one months from the end of the financial year in which the last of the authorization for the search under Section 132 of the Act was executed. In the present case, there is no doubt that the last date by which the assessment had to be made was 31st December, 2016. As further rightly noticed Section 153B (1) uses the expression order of assessment and not merely 'assessment'. Therefore, the assessment order becomes an order only when in fact it is communicated and therefore the communication of the order had to be prior to the end of the limitation period. In BJN Hotels Ltd. (supra) the Karnataka High Court, held as under: That the revenue is neither able to point out from the records that the assessment orders were dispatched on 27.4.2007 nor produced the dispatched register to establish that the orders were complete and effective i.e. it was issued, so as to be beyond the control of the authority concerned w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt is satisfied that no error has been committed by the ITAT in allowing the Assessee's appeal. This Court is, therefore, not persuaded to frame the questions of law as urged by the Revenue. 5.It was the submission that the assessment orders were liable to be annulled being passed beyond the period of limitation. 6.In reply, ld CIT DR vehemently supported the order of the Assessing officer and ld CIT(A). He has filed written submission, as follows: The official records do not show that the assessment order was passed by the A.O. beyond the limitation period i.e. 31.12.2016. In fact, it has been passed on 30.12.2016 Section 153(1) states that No order of assessment shall be made u/s.143 or section 144 at any time after the expiry of two years from the end of assessment year in which the income was first assessable . The legislative intent specified in sections 143(2)/148 and other sections is clear wherein which it is stated that the A. O. should serve on the assessee as compared to the language used in section 153(1) of the Act. The legislature in its wisdom has not used the term shall be served on the assessee U/s. 153(1) for any assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the same A.O. (Shri V. Sivaji) on 30.12.2016 which have been entered in the Demand Collection Register prior to entries of Smt. Sujata Panda on 30.12.2016. v.)The decision of the Hon'ble Andhra Pradesh High Court in the case of Kodicasu Appalaswamy Suryanarayana vs. CIT (46 ITR 735) is pertinent in which their lordships held that where an order of assessment had been passed within the period of limitation then the date on which order of assessment and demand notice were served, was not relevant. vi.)The Hon'ble Gauhati High Court in the case of Ramanand Agarwalla vs. CIT (151 ITR 216) held that as per sub-section 1 of section 153 of the Income Tax Act, 1961, the A.O. is required to pass an order of assessment within the limitation period, it does not require that the demand notice and assessment order should also be issued within that limitation period. The Hon'ble High Court clearly distinguished the legislative intent regarding making of assessment order and service of demand notice. In other words, the statute requires the Income Tax Authority to serve any notice of demand U/s 156 of the Income Tax Act on the assessee not necessarily within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be taken'. Similarly, in the provisions of section 148 of the Act, the words used are 'shall serve on the assessee'. Similarly, in the provisions of section 149 of the Act, the words used are 'issue to the assessee. Thus, each word used in each section has a different purpose and different meaning. 'Made' cannot be treated on the same footing as served. The fact that the word used is 'made' in section 153 shows that the assessment order should be made on or before the said date. It does not mean that it should be served. On this ground itself as we find that the decision of the Coordinate Bench has erroneously laid down the law on this issue if the word 'made' is given the meaning served then the section itself would become unworkable and it would make all assessment orders made on the last ,daY illegal. In the circumstances, respectfully following the principles and the ratio laid down by the Hon'ble Madras High Court in the case of CIT Vs. Hi-Tech Arai Ltd. (2010) 321 ITR 477, we differ from the decision taken by the Coordinate Bench in the case of Durga Condev Pvt. Ltd. (supra) as also the decision of Shanti Lai Godawat Ors. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Hence, I am of the view that the learned Accountant Member should have restrained from dissenting or he should have persuaded the learned Judicial Member for referring the matter to the larger Bench. For the sake of uniformity, at least, the very same Bench should have followed its own order. The Bench should not come to a conclusion contrary to the conclusion reached in the earlier order of the Tribunal. In this case, the Bench being the same, definitely contrary view should not have been taken . Therefore the decision of Hon'ble Cuttack ITAT in the case of Sophia Study Circle (supra) being a binding precedent needs to be applied with full force or it should be referred to a larger Bench. xi.)It may please be appreciated that section 263(2) is also similarly worded. Section 263(2) states that No order shall be made under subsection (1) after the expiry of two years from the end of the financial year in which order sought to be revised was passed . Thus made shall imply that the Pr. CIT should make the revision order by that date however there is no mention about service of revision order u/s.263 of the Act. The Hon'ble Supreme Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Commissioner was barred by period of limitation, as provided under sub-section (2) of section 263 of the Act. xii.) In the case of CIT vs. Subrata Roy (45 taxmann.com 513), the Hon'ble Kolkata ITAT observed that But in the present case before us, it is a fact that despite repeated opportunities to the Revenue, they could not prove any documentary evidence that the assessment was framed on 31.12.2008 i.e. the date of assessment order. It is a fact that the assessment order and demand notice was handed over to Postal Authorities on 12.02.2009 and the same was received by assessee on 16.02.2009 . Hence it was held by the Hon'ble ITAT that the assessment order was barred by limitation since the order of assessment and the demand notice were served 47 days after the limitation period. On appeal, however the Hon'ble Kolkata High Court held that even if demand notice and copy of assessment order was served to the assessee after 47 days from date of assessment order which was last date for making such assessment (31.12.2008), such order could be said to have been passed on date it bore, as a period of 47 days time was not long enough to create any doubt regarding c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cember, 2008. There is equally no reason to doubt that the assessment order was passed on 31st December, 2008. 11. We are, as such, of the opinion that the order passed by the learned Tribunal cannot be sustained, which is accordingly set aside and the order of the CIT(A) is restored , xiii.) In the case of Nidan, the Hon'ble Cuttack ITAT has followed the decision of Hon'ble Karnataka High Court in the case of B. J. N. Hotels Ltd. (382 ITR 110) which was rendered on different facts. In the case of B. J. N. Hotels, the premises of the assessee company engaged in hotel business were subjected to search and proceedings. In response to notice u/s.l53A, the assessee filed its return of income declaring loss. Proceedings by order dated 31st July, 2006, initiated under section 142(2A) of the Act, appointing a special auditor came to be dropped as no opportunity was provided to the assessee. A notice was issued under section 142(2A) of the Act on 30th November, 2006 proposing to send the books of account of the assessee for special audit. The assessee objected but the Assessing Officer obtained prior permission from the Commissioner on 18th December, 2006 and directed the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April, 2007. On the direction of Hon'ble High Court to produce the original records, the same were placed before the court. But it was noticed that there were certain over writings in the order sheet as regards date of passing of the order by the Assessing Officer and moreover, a particular page of the order sheet was maintained on a rough sheet (in an unusual manner) different from other pages of the order sheet. Besides this flaw in the records, the counsel for the Revenue was neither able to point out from the records that the assessment orders were dispatched on 27th April, 2007 nor produced the dispatch register to establish that the orders were complete and effective i.e. if these were issued then these were beyond the control of the authority concerned within the period of limitation. Hence in these peculiar facts, it was held that the assessment orders were barred by limitation. These facts circumstances do not exist in the present case. Here the assessment orders have been passed before the prescribed period as laid down in section 153 of the Act. There is no allegation against the A.O. to the effect that there are certain over-writings in the order sheet as regards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Kerala [1988] 69 STC 62 ; [1987] 1 KLT 804 in which this court stated, after relying on various decisions of the Supreme Court culminating in B.J. Shelat v. State of Gujarat, AIR 1978 SC 1109, as follows (at page 69): The order of any authority cannot be said to be passed unless it is in some way pronounced or published or the party affected has the means of knowing it. It is not enough if the order is made, signed, and kept in the file, because such order may be liable to change at the hands of the authority who may modify it, or even destroy it, before it is made known, based on' subsequent information, thinking or change of opinion. To make the order complete and effective, 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 . (emphasis supplied). Respectfully following the same and in the absence of any material to show that the order passed by the AO was not made on 30.12.2009. we hold that the order passed by the AO was within the limitation and not barred by limitation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found that the assessee was entitled for the additional depreciation claimed under the said provision, it could not be held that simply because a co-ordinate Bench of the Tribunal had earlier taken a different view, the Tribunal on this occasion also ought to have followed the same, especially when it was found that the Tribunal had applied the law correctly in the impugned order. In view of binding precedent in case of Sophia Study Circle, it is humbly requested that this legal issue raised by the assessee needs to rejected and dismissed. 7. Ld CIT DR has placed before us the original of the demand and collection register. It was the submission that the demand and collection register clearly register the date of the assessment order as 30.12.2016. It was the submission that the assessment order had been passed within the prescribed time limit and approval of JCIT has also been taken on 30.12.2016. It was the submission that the assessment orders are liable to be upheld as it has been passed within the period of limitation. It was the submission that the delay in dispatch of the assessment order should not be a ground for treating the assessment orders as being barred by lim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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