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TMI Blog2024 (4) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... is received by the authorities mentioned in the said Section. Evidently, from the extract of the relevant portion of the judgment in Odeon Buildwell (supra) in the preceding paragraph, it is seen that the contextual interpretation of the phrase received postulates the time when are the parties notified about the pronouncement and are represented at that instant in the open court. As held that the solitary reason of non-receiving of the order by the concerned authority cannot consequently make the period of limitation cease to run. Court further noted that once a responsible authority including the Department s Representative is aware of the order, the communication of the order is purely an administrative arrangement which has to be carried out internally within the Department. Recently, in the case of Lakhpatrai Agarwal [ 2023 (2) TMI 533 - BOMBAY HIGH COURT] has held that the legislative intent behind the enactment of Section 254(3) of the Act does not prescribe shifting of the onus of proving the receipt of the order under the said provision on the assessee. As safely concluded that the expression received employed in Section 153(3) of the Act would not strictly mean that a cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or Direction under Article 226/227 of the Constitution of India directing the Respondents to give appeal effect of the orders passed by Ld. ITAT, Delhi in ITA No. 787/DEL/2014 ITA No. 5517/DEL/2017 for A.Y. 2008-09. b. This Hon'ble Court be pleased to allow the present Writ Petition and pass a writ of mandamus, or any other appropriate Writ, Order or Direction under Article 226/227 of the Constitution of India directing the Respondents to issue refund of Rs. 25,44,671/- along with interest thereby de-freeze the three bank accounts maintained with Indian Overseas Bank Limited bearing A/C No. (003502000022314), ICICI Bank Ltd. bearing A/C, No. (000705035988) Punjab Sind Bank bearing A/c No. (00131100015265) and two properties attached namely as Vishal Infrabuild Limited situated at CTS No. 5853, I Floor, Emer Corner, Maratha Colony, Congress Road, Belgaum, Karnataka-590006 another property namely as DLF Limited, Flat No. 2701 , R Tower, Moti Nagar, New Delhi. 2. The facts of the present case exhibit that the petitioner had filed its Income Tax Return [ ITR ] for the Assessment Year [ AY ] 2008-09, declaring a total income of ₹19,92,354/- which was processed by the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RTI Act, 2005 ] on 13 August 2021 to Tax Recovery Officer to give appeal effect to the order passed by the ITAT. Pursuant to the said RTI application, an order was passed by respondent no. 3 on 3 November 2021, wherein, it expressed its inability to give appeal effect on the ground that it had not received the order passed by the ITAT for the concerned AY through a proper channel. 9. Further, on 10 December 2021, the petitioner preferred an appeal against the order dated 3 November 2021, passed by respondent no. 3 under Section 7 of the RTI Act, 2005. The said appeal was decided by the first appellate authority under the RTI Act, 2005 on 13 January 2022 stating that the information provided to the petitioner is adequate. 10. Subsequently, upon receipt of the information dated 13 January 2022, an application was preferred by the petitioner on 1 February 2022 before the registry of the ITAT in order to seek information of service of order passed on 8 October 2018. On 10 March 2022, the petitioner was provided with the information by the registry of the ITAT that the order passed in the case of the petitioner was duly sent to the CIT ( Judicial ) on 24 October 2018 for further action. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remand as directed by the ITAT order dated 8 October 2018 could not be complied with. He submitted that the ITAT is bestowed with the responsibility to provide the order to the concerned authority which it had failed to perform. 16. While drawing our attention to the copy of the emails written to the DCIT, Central Circle, which is annexed as Annexure-R1 and letter dated 16 July 2021 written to the Registrar of the ITAT, annexed as Annexure-R2, learned counsel submitted that upon receipt of the application from the petitioner for giving the appeal effect, the respondents had promptly written to various concerned authorities for providing the order in question. He, however, submitted that no reply was received from the concerned authorities. 17. He further contended that as per Section 153(3) of the Act, the limitation period of nine months or twelve months, as the case may be, would start at the point when the order from the ITAT is received by the Principal Commissioner or the Commissioner. He, therefore, contended that since in the instant case, the order was never received by the CIT (Judicial) or any other Principal Commissioner or Commissioner, the limitation period to pass a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner or Commissioner, as the case may be,]: [Provided that where the order under 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 Commissioner or Commissioner on or after the 1st day of April, 2019, the provisions of this sub-section shall have effect, as if for the words nine months , the words twelve months had been substituted.] 22. The respondents have heavily stressed upon the usage of the word received in Section 153(3) of the Act in order to strike a distinction between the receipt of the order and knowledge of the order by the concerned authorities. According to the respondents, a plain and literal interpretation of the said provision would yield that the latter would not constitute a valid interpretation and the same has to be strictly confined to the receiving of the certified copy of the order by the concerned authorities. 23. Additionally, much reliance has been placed by the respondents on the dictum laid down by the Full Bench of this Court in the case of Odeon Buildwell (supra), which according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment such as its Departmental representative or the Commissioner of Income-tax (Judicial) is aware of the order, then from that point it is a purely internal administrative arrangement as to how the said officer obtains and further communicates the order to the officer who has to take a decision on filing the appeal. Of course, the time taken to obtain a copy of the order by such Departmental representative or Commissioner of Income-tax (Judicial) would be excluded. However, the period of limitation will not cease to run only because the concerned officer has not yet received the order. *** 43. Viewed differently, the contextual interpretation of the expression receive would be when the parties notified of the pronouncement are represented at that time in the open court. When pronounced, both parties are said to receive it. The agency which they choose for transmission to the official or executive component to authorise an appeal is not the concern of the judicial system. [Emphasis supplied] 25. Evidently, from the extract of the relevant portion of the judgment in Odeon Buildwell (supra) in the preceding paragraph, it is seen that the contextual interpretation of the phrase rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officer of the Department becomes aware of the order, the period of limitation would commence form that point in time. [Emphasis supplied] 27. Recently, the High Court of Bombay in the case of Lakhpatrai Agarwal v. CIT [2023 SCC OnLine Bom 372] has held that the legislative intent behind the enactment of Section 254(3) of the Act does not prescribe shifting of the onus of proving the receipt of the order under the said provision on the assessee. It was further noted that the expression is received used in Section 153(3) of the Act cannot mean to extend the limitation till perpetuity. The relevant paragraph of the said decision is reproduced as under:- 26. We are unable to agree with the respondent's counsel's contention that they have not received the order dated February 18, 2010. Section 254(3) itself provides for the Income-tax Appellate Tribunal to send a copy of the order to both the assessee and to the Commissioner; therefore, the onus would lie on the respondent to prove that they had not received the said order. If we had to accept the contention of the respondent it would have led to extending the time for compliance with the order dated February 18, 2010 for alm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner sent a letter dated 1 February 2022, addressed to the Assistant Registrar of the ITAT, enquiring about the dispatch details of the ITAT order dated 8 October 2018 sent to the concerned authorities. The said letter, which has been annexed with the writ petition as Annexure P-13, was responded by the Assistant Registrar, ITAT, which noted that the copy of the said order dated 8 October 2018 was forwarded to the CIT (Judicial) on 24 October 2018. 33. It is also manifested from the penalty appeal order dated 2 March 2020 that the Senior Departmental Representative duly participated in the proceedings, wherein, the appeal was disposed of while placing reliance on the order of the ITAT dated 8 October 2018. Also, the representations made by the petitioner to various officers of the Department would show that the Department was apprised of the ITAT order in question. 34. The facts, thus, show that the ITAT sent the order to the Department on 24 October 2018, however, the Department denies having received the same. In any case, for deciding controversy in the instant case, it is sufficient to take note of the ITAT s stand of sending a copy the order to the Department. Moreover, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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