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TMI Blog2024 (4) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... ,086/- on account of rejection of claim of Performance Incentive paid during the year because: a) he has failed to appreciate that the appellant in its computation of income has added back the provision of performance incentive of Rs 1,11,48,788/- and claimed Rs 1,46,60,086 paid during the year but the AO has added back the entire amount of payment without giving the benefit of amount which was already added back. This resulted in to the addition of same amount twice. b) He has failed to appreciate that due to the inadvertent mistake of the accountant identical amount of Rs 1,11,48,788/- was claimed in AY 2014- 15. The rectification request of the same was rejected by the AO during the assessment proceeding. c) The Ld CIT (A) has erred in law as well as on facts in holding that appellant could not justifies its claim of Rs 1,46,60,086/- on account of performance incentive paid with evidence despite the fact that appellant has produced all the books of account before the AO and payment proof of performance incentive paid before the CIT (A). 3. That the learned CIT(A) has erred both on facts and in law in upholding the levy of interest under the provisions of section 234B, se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion prescribed under law. 7. The identical issue came for consideration before the Coordinate Bench of the Tribunal in the case of Pankaj Sharma Vs. DCIT Central Circle in ITA No. 3556 and 3557/Del/2017 and vide order dated 08/02/2019, by relying on the judicial precedents held that, when the Assessment Order has been passed within the period of limitation, but the Assessment Order has been dispatched the subsequent date, the Assessee has been construed as assessment framed beyond the time limit, which is barred by limitation and quashed the Assessment Order in following manners:- "5.2 After perusing the aforesaid Tract Report, it is crystal clear that Income Tax Department has booked the DAK containing assessee's assessment order dated 28.03.2013 in dispute only on 01/04/2013 at 19:20:00 from Model Town S.O. (Ghaziabad) which was received on 02/04/2013 10:02:45 Kavi Nagar, S.O., and did establish that when the assessee has received the assessment order, hence, the assessment is barred by limitation and deserves to be set aside on this account. In this regard, we draw support from the decision dated 27.09.2018 of the ITAT, Cuttack Bench passed in IT(S)A No. 44 to 46/CTK/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n authority is required to act in a quasi-judicial capacity, it is imperative to give appellant an adequate opportunity of being heard before deciding the appeal. The aim of the rule of natural justice is to prevent miscarriage of justice and denial of principles of audi alteram partem results into such miscarriage of justice. Therefore, the Learned CIT(A) should have afforded reasonable opportunity of being heard to the assessee. Therefore, in order to impart substantial justice to the assessee, we reverse the orders of ld. CIT(A) and restore the appeals to the file of the AO to decide Ground Nos.1 to 3 afresh after giving reasonable opportunity to the assessee. 8. As we have restored Ground Nos.1 to 3, rest of the issues taken in Ground Nos.4 to 8 also restored to the file of the AO for deciding the same afresh. AO is directed to frame denovo assessment as per law." Accordingly, as per the directions of the Tribunal the AO has passed the reassessment order on 30.03.2015 against which the assessee has filed an appeal with the first appellate authority and was dismissed by the CIT(A). The contention of ld. AR is that the reassessment order passed on 30.03.2015 is barred by limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The facts relating to this issue are that a search and seizure operation was conducted in the case of the assessee on 28.5.2014. In pursuance to the said search, order u/s. 153A r.w.s 144 of the Act was passed for the assessment years 2009-2010 to 2014-15 and assessment for the assessment year 2015-16 was made u/s. 144 of the Act. The said orders of assessment were served upon the assessee on 9.1.2017 though all the orders were dated 30.12.2016. 6. Before the CIT(A), the assessee contended that the aforesaid orders being dispatched on 7.1.2017 are barred by limitation. The CIT(A) observed that as the orders were dated 30.12.2016 and in absence of any material to show that the Assessing Officer revisited these orders after 30.12.2016 upheld the orders and drawn support from the decision of Hon'ble Calcutta High Court in the case of CIT vs. Binani Industries ltd., (2015) 59 taxmann.com 389 (Cal). 7. Before us, the assessee produced copy of envelope by which the orders of assessment were sent to the assessee by the Assessing Officer and copy of track record of Speed Post to show that the impugned orders of assessment were, in fact, dispatched by the Assessing Officer on 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol of the authority concerned within the period of limitation i.e. 29.4.2007. Admittedly, the assessment orders were served on the assessee on 30.4.2007. hence, the assessment orders passed were barred by limitation." In the above decision, Hon'ble High Court follows its one earlier decision and has stated as under: "An identical issue was before this Court in ITA No.832/2008 (D.D. 14.10.2014 in the case of Maharaja Shopping Complex vs DCIT. This court following the judgment of Kerala High Court in the case of Government Wood works vs State of Kerala (1988) 69 STC 62 has held that in the absence of dispatch date made available to the Court from the records, to prove that the order is issued within the prescribed period, order passed by AO is barred by limitation. The said judgment squarely applies to the facts of the present case." 13. To the same effect are the decisions of Hon'ble Kerala High Court, which are in the case of (i) K. Joseph Jacob vs Agricultural Income Tax Officer & another (1991) 190 ITR 464 (Ker) and (ii) Commissioner of Agricultural Income Tax Officer vs. Kappumalai Estate, 234 ITR 187 (Ker). 14. The Jodhpur Bench of this Tribunal also held simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even though there is no time left for undersigned to ensure that all the points raised in the appraisal report, the appellate proceedings, audit inspection etc. are duly taken into account, and the enquiries and investigations that are required to be made are actually made before finalization of the assessment orders. It would have been much better and in the interest of Revenue, if you had submitted the draft orders atleast one month earlier so as to allow the undersigned sometime to go through and analyse the same vis-a-vis the appraisal report and seized records. It also goes without saying that you never cared even to discuss these cases with the undersigned for guidance and line of investigation to be taken. However, despite all this, I have gone through the material available on records and some of the observations, in respect of the following cases are given in subsequent paras." 24. In our considered view, the provisions contained in Section 153D as enacted by the Parliament cannot be treated as an empty formality. The provision has certain purpose. It is apparent that the purpose behind the enactment of the above provision in the Statute by the Parliament are two fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d No.2 and Ground No.4 of appeal in case of both the assessees are allowed." 13. We considering the facts and circumstances of the case and the orders of lower authorities and the judicial precedence and applying the ratio of judgment of above decision in the present case, found that the reassessment order is dated 30.03.2015 and the same was served on 06.04.2015, which is not disputed by the Revenue and which is similar facts of the decision of coordinate bench of the Tribunal in case of Geetarani Panda (supra), where service of order is barred by limitation. Accordingly, we set aside the orders of lower authorities and allow the additional grounds of appeal of the assessee-Trinadh Chowdary for the assessment year 2004-2005 in IT(SS)A No.44/CTK/2016." 5.3 We have heard both the parties and perused the relevant records especially the documentary evidences filed by the assessee in the Paper Book as mentioned above and the Written Submissions filed by both the parties, especially the Written Submissions of the Ld. CIT(DR) and we are of the considered view that in this case the Assessing Officer has passed the assessment order on 28.03.2013 and according to the evidence of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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