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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI V. DURGA RAO& SHRI D.S. SUNDER SINGH
आदेश /O R D E R
PER D.S. SUNDER SINGH, Accountant Member:
This appeal is filed by the assessee against the order of the Commissioner of Income Tax (Appeals) [CIT(A)], Vijayawada vide ITA No.337/CIT(A)/VJA/2016-17 dated 13.03.2018 for the Assessment Year (A.Y.)2010-11.
2 I.T.A. No.162/Viz/2018 Smt. Kosanam Pushpavathi, Vijayawada
In this case, the assessee raised total four grounds in appeal and Ground No.1 and 4 are general in nature which does not require specific adjudication.
Ground No.2 is related to the validity of the assessment made by the AO u/s 143(3) of the Income Tax Act, 1961 (hereinafter called as ‘Act’). In this case, the assessment was completed u/s 143(3) by an order dated 04.03.2012, the said order was served on the assessee on 05.12.2013 with inordinate delay of 9 months. Therefore, the Ld.AR contended that the assessment order passed u/s 143(3) is ante dated and it was passed after the limitation period specified in the Act, therefore, contended that the order passed u/s 143(3) is invalid and accordingly requested to quash the assessment order passed u/s 143(3). On appeal, the Ld.CIT(A) upheld the validity of the assessment order stating that the assessment order was passed on 04.03.2013 and there is no time limit specified in the Act for serving the assessment order and relied on the decision of Hon’ble High Court of Calcutta in the case of CIT Vs. Subrata Roy,(2014(7) TMI42) wherein the Hon’ble Court reversed the order of ITAT, Delhi holding that service of the assessment order and demand notice would not invalidate
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the order or notice which bore date with in limitation.
Aggrieved by the order of the Ld.CIT(A), the assessee is in appeal before this Tribunal. During the appeal hearing, the Ld.AR argued that the assessment order was stated to have been passed on 04.03.2013, but it was served on the assessee on 05.12.2013 and there was inordinate delay in serving the assessment order, which gives presumption that the said assessment order was not passed before the time limit allowed under the Act and it was ante dated. Hence, the assessment order required to be annulled.
On the other hand, the Ld.DR supported the order of the Ld.CIT(A).
We have heard both the parties and perused the material placed on record. In this case, assessment order was stated to have been passed on 04.03.2013, but it was served on the assessee on 05.12.2013 i.e after 9 months. For a query from the bench, the Ld.DR replied that the assessment order and demand notice was served through the departmental notice server. Though the Ld.DR argued that the assessment order was passed on 04.03.2013, no evidence was placed before us to establish that the order infact was passed on 04.03.2013. Though the
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limitation period is available for passing the assessment order, but not for service of the assessment order and demand notice, the order must be served on the assessee within the reasonable time as held by the various high courts. The Ld.CIT(A) relied on the decision of CIT Vs. Subrata Roy cited supra, wherein, the facts are completely different and distinguishable. In the said case, the order was passed u/s 143(3) on 31.12.2008, but the assessee refused to accept the order, hence the assessment order and the demand notice was sent through registered post which caused delay of 47 days and the Hon’ble High Court held that the delay of 47 days is not time long enough which can even make any one suspicious as regards correctness of the date of the order. In the instant case, there was no such default or refusal from the assessee and the delay was 9 months. The department did not establish with any evidence that the said order was passed on 04.03.2013 and explained the reasons for delay in service of the assessment order and the demand notice. Therefore, we are unable to accept the contention of the department that there was a reasonable cause for delay of 9 months in the service of the demand notice and the assessment order. In the absence of any evidence to establish that the order was passed within the time limit allowed u/s 143(3) and failure of the department to explain the delay of nine months from the date of
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passing the order, we are unable to accept the contention of the revenue that the order was passed on 04.03.2013. The Ld.AR relied on the decision of ACIT Vs. Orissa Stevedores Ltd., wherein, Hon’ble ITAT Cuttack in (2012) 16 ITR 0431 held that the order passed with a delay of 85 days is barred by limitation. Similarly, the Ld.AR relied on the decision of Hon’ble Supreme Court in the case of State of Andhra Pradesh Vs. Khetmal Parekh & M.Ramakishtaiah and Co. in Civil Appeal No.491 of 1977 and 1014 of 1977 held as under : “We are of the opinion that the theory evolved by the High Court may not be really called for in the circumstances of the case. We are of the opinion that this appeal has to be dismissed on the ground urged by the assessee himself. As stated above, the order of the Deputy Commissioner is said to have been made on January 6, 1973, but it was served upon the assessee on November 21, 1973, i.e. precisely 10 ½ months later. There is no explanation from the Deputy Commissioner why it was so delayed. If there had been a proper explanation, it would have been a different matter. But, in the absence of any explanation whatsoever, we must presume that the order was not made on the date it purports to have been made. It could have been made after the expiry of the prescribed four years period. The civil appeal is accordingly dismissed. No costs.”
In the instant case, there was a delay of 9 months in serving the demand notice and the assessment order on the assessee. The department did not explain the reasons for service of the said notice and the assessment order with 9 months delay. Therefore, we hold that there is no material to believe that the assessment order was passed on 04.03.2013. Accordingly, we hold that the assessment order passed u/s 143(3) is barred by
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limitation and the same is annulled and the appeal of the assessee is allowed.
Since, we have annulled the assessment order, we consider it is not necessary to adjudicate the issue on merits. Accordingly, the appeal of the assessee is allowed.
8 In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 3rd January, 2019.
Sd/- Sd/- (िी.दुगाा राि) (धड.एस. सुन्दर धसंह) (V. DURGA RAO) (D.S. SUNDER SINGH) न्याधयक सदस्य/JUDICIAL MEMBER लेखा सदस्य/ACCOUNTANT MEMBER नवशधखधपटणम /Visakhapatnam नदनधंक /Dated :03.01.2019 L.Rama, SPS
7 I.T.A. No.162/Viz/2018 Smt. Kosanam Pushpavathi, Vijayawada
आदेश की प्रनतनलनप अग्रेनर्त/Copy of the order forwarded to:- 1. ननधधाऩरती / The Assessee – Smt.Kosanam Pushpavathi, D.No.41-24-2, Ganganamma Temple Street, Brahmarambhapuram, Krishna Lanka, Vijayawada 2. रधजस्व / The Revenue–Income Tax Officer, Ward-2(2), Vijayawada 3. The Pr.Commissioner of Income Tax, Vijayawada 4. The Commissioner of Income Tax-(Appeals),Vijayawada नवभधगीय प्रनतनननध, आयकर अपीलीय अनधकरण, नवशधखधपटणम / 5. DR, ITAT, Visakhapatnam 6. गधर्ा फ़धईल / Guard file
आदेशधनुसधर / BY ORDER // True Copy //
Sr. Private Secretary ITAT, VISAKHAPATNAM