Loading judgment…
Facts
The case concerns the timeliness of an assessment order for Assessment Year 2010-11. The Himachal Pradesh High Court remanded the matter to the ITAT to determine if the assessment order was predated, specifically if it was passed by 28.03.2013 as claimed by the department, or if it was dispatched later (04.04.2013) making it time-barred. The assessee provided evidence from India Post records showing dispatch on 04.04.2013.
Held
The tribunal, after reviewing the evidence including India Post trekking records and various dispatch sheets, found inconsistencies in the department's claims regarding the dispatch date. It was concluded that the assessment orders were booked with the postal department on 04.04.2013. Consequently, the assessment for Assessment Year 2010-11 was held to be barred by limitation.
Key Issues
Whether the assessment order for Assessment Year 2010-11 was time-barred due to discrepancies in the date of its passing or dispatch by the department.
Sections Cited
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, CHANDIGARH BENCH “B”, CHANDIGARH
Before: SHRI. RAJPAL YADAV, VP & SHRI. KRINWANT SAHAY, AM
Order
PER KRINWANT SAHAY, AM:
The present appeal arisesout of the order of Hon’ble Himachal Pradesh High Court vide order, dated 11.07.2019, wherein, the issue has been remanded back to the Bench as per finding given in para 8 of the order of Hon’ble Himachal Pradesh High Court is as under:-
It is true that the Commissioner of Income Tax (Appeals), has recorded a categorical finding that the order was in fact passed on 28.03.2013. But, the question, whether the order was passed actually on 28.03.2013 or whether it was predated, is a question of fact, which the Income Tax Appellate Tribunal, being the final authority on fact, should have gone into. Since the Tribunal did not go into this question, we are of the view that this question has to be answered in favour of the appellant and the matter remanded back to the Appellate Tribunal.
Actually, this remanding of case was on account of ITAT Chandigarh Bench order in wherein, the Hon’ble Bench have decided the case on merits but the legal ground was not 2 adjudicated as per finding given in that order of the ITAT in para 19, which is being reproduced as under:-
“19 In the revised grounds submitted, in Ground No.2, the assessee has challenged that the upholding of Ld. DCIT’s order, dated 28.03.2014 which seems to have been passed after 31.03.2013. Since the quantum additions have been adjudicated on facts of the case and on merits and since the assessee has got substantial relief, any adjudication on this issue becomes academic in nature and hence not being dealt with.”
The only ground is, thus, to be adjudicated as to whether the assessment for Asstt. Year 2010-11 in the case of above assessee is barred by time and reliance of the assessee is on the “India Post Trekking record” alongwith envelope, which as per Ld. Counsel prove that the said documents in the shape of assessment orders were booked by the department on 04.04.2013 and delivered to the assessee on 06.04.2013 and such evidence had been filed during the course of appeal in and copy of the same is being reproduced as under:-
It was further contended that the ‘docket Number as per India Post Trekking’ record is the same on ‘Envelope’ and the said contention have already been submitted by way of submissions, dated September 19,2017 at page 90 to 90 H of the ‘Paper Book’ consisting of 1 to 183 pages, during the course of hearing in ITA No. 136/Chd/2015.
5. It was further contended by the Ld. Counsel that copy of the order sheet entries of Sh.AjayGoel had been placed in the Paper Book for relevant assessment year at page 81 of the ‘ paper book’ and the last entry is dated 28.03.2012. It was further pointed out by Ld. Counsel that the assessments for the earlier assessment years i.e. for Asstt. Year 2005-06 to 2009-10 in the case of same assessee were completed on 4 22.03.2013 and the assessment orders were received by the assessee on 25.03.2023 as per copy of the order sheet entries at pages 78 to 80 of the ‘paper book’ and against such orders, appeals were filed before the CIT(A) Gurgaon, for which, the evidences has been enclosed at pages 92 to 140 of Paper Book and in that Form No. 35, it has clearly been mentioned that such assessment orders for Asstt. Year 2005-06 to 2009-10 were received by the assessee on 25.03.2013.
6. It was further argued that the contention of the department that the assessment orders were given to the ‘Post Office’ on 30.3.2013, of both the assessee i.e‘Sh. Ajay Goel’ and sister concern of the assessee, ‘Ajay Kumar Sood Engineers & Contractors’ is not correct and on examination of record of the ‘dispatch sheet’ of the department for 30th of March 2013, for which, one copy has been placed at page142 of the ‘Paper Book’ for 30.03.2013 and the said copy differs from another copy of the same date, placed at page 85 of the ‘paper book’ and they are different, in as much as,on the copy placed at page 85, there is small ‘initial’ below the stamp of the Post Office but no initials on the copy at page 85 and there is lot of space even left blank, where stamp of Postal department is there.
Further, it was argued that in respect of Sh. Ajay Goel, there were only two assessment orders i.e. for Asstt. Year 2009-10 and 2010-11 and,
5 in the case of ‘Ajay Kumar Sood Engineers and Contractors’ there were seven assessment orders. The third name is also mentioned there and weight of envelopes in all these cases have been mentioned as the same whereas, as per the other sheets showing dispatches, there are different weights as per copies placed in ‘Paper Book’. It was contended that docket number is of 04.04.2013 and, there is no evidence with the department that such assessments orders were dispatched on 30.03.2013. Further, even for 30.03.2013, there is another sheet placed at page 141 of the Paper Book, where lot of space was available but why other sheets for 30.03.2013 were used for same set of dispatches, the department has no answer.
The Ld. Counsel relied upon the judgment of Gujarat High Court, Ahmedabad in the case of “Sh. Kanu Bhai M. Patel HUF Vs HirenBhat in SCA No.5295 of 2010” and “CIT Vs Raj Bahadur Kishore Chand & Sons in of 2007”, of Punjab & Haryana High Court and “Subrata Roy Vs ITO in ITAT, Kolkata Bench for the preposition that, it is the date, when the documents are handed over to the Postal department, that date has to be considered as completion of assessment. It was argued by the Counsel that the above contentions prove that order was not passed before 31.03.2013. Various arguments of the Ld. Counsel have been summarized by way of letter, dated 26
6 August 2017 as addressed in earlier proceedings to the Bench and the same is reproduced for clarity of the issue involved:-
“August 26, 2017 The Hon’ble Members, Income Tax Appellate Tribunal Chandigarh “A” Bench KendriyaSadan, Sector-9 Chandigarh Sir, Re: 1. Ajay Kumar SoodEngg. & Contractor to 325/Chd/2014 for AYS 2005-06 to 2011-12 for A.Y. 2011-12 & ITA No. 263 & 264/Chd/2917 2. Sh. Ajay Goel ITA Nos. 136 & 137/Chd/2015 for 2010-11 & 2011-12. The above said appeals have been fixed for hearing before Bench “A” of the Tribunal for 07.09.2017. During the course of last hearing before the Hon’ble Bench with regard to common ground in all the cases that the assessment order having been passed after 31st of March 2013, since the same was dispatched on 4th of April 2013 and, which is evident from the Online tracking as per Indian Post Office records as filed before the Ld. Commissioner of Income Tax (Appeals). The Hon’ble Bench had called for the record of the Assessing Officer with regard to the dispatch of the assessment orders in the case of Sh. Ajay Kumar and such record was inspected by the Hon’ble Bench. The Assessee had also asked for inspection of such dispatch records of the relevant period as produced by the department and which was granted. The assessee also pointed out variation in the ‘copy’ of the earlier ‘dispatch sheet’, dated 30.03.2013 as supplied by the department, where no signatures of the ‘Post Office officials’ have been recorded and another copy was supplied during the course of last hearing, which copy was in variance with the earlier ‘copy’ supplied during the course of proceedings before the Worthy CIT (A), Gurgaon. It was observed by the Hon’ble Bench that ‘Online tracking’ was on record and the case was adjourned for 07.09.2017 for inspection of the record by the assessee. Similarly, the case of Sh. Ajay Goel, which was fixed, lateron, has also been fixed for 07.09.2017, since the same issue is there. The assessee had inspected the record of the dispatch from the Assessing Officer concerned, and the following points need your kind honour’s consideration: - i) The dispatch register is not bound, the same is in the shape of loose sheets. ii). The copy of one loose sheet, as supplied to the assessee during the course of proceeding before the Ld. CIT(A) and during the course of last hearing by the department, are not only different, but there are no signatures
7 of any postal officials having received the documents on 30th of March 2013 from the department, which could prove that the assessment order was passed on or before 31st of March, 2013. iii). That for the impugned date i.e. 30th of March 2013, when the assessment orders of the assessee were allegedly shown to be dispatched, there is another sheet of the same date bearing dispatch date as 30th of March 2013, where the weight of each document is different and there are signatures of some officials of the Postal department. Thus, it is not understood as to why there are no signatures on the ‘two sheet’ showing the dispatch of the orders as supplied to the assessee and, why two separate sheets of dispatch for the same dates i.e. for 30.03.2013 are there, when sufficient space is available on both the sheets. iv). Further, there is variation with regard to the sheet of alleged dispatch register as supplied to the assessee at the time of appeal before the Ld. CIT (A) and the sheet of dispatch register as supplied to the assessee during the course of appeal before the Hon’ble ITAT. v). In the copy of the loose sheet as provided to us in all the packets, same weight is there but with regard to Sh. Ajay Goel and Ajay Sood, weight cannot be the same, since in the case of Sh. Ajay Goel, only two assessment orders are there and in the case of Sh. Ajay Sood, seven orders are there, thus, weight cannot be the same. Further, the said file of ‘dispatch register’ as maintained on loose sheets on various dates, clearly prove that on each and every ‘dispatch sheet’ showing the documents dispatched, there appear the signatures of some ‘Postal officials’ as would be evident from the following dates as inspected by the assessee: -
Date Signed By Post Office Date Signed By Post Office
Shows documents sent, Shows documents sent, Having signatures of some Having signatures of 30.03.2013 14.03.2013 officials with different some officials with weights different weights 28.032013 -do- 12.03.2013 -do- 26.03.2013 -do- 03.04.2013 -do- 22.03.2013 -do- 05.04.2013 -do- 21.03.2013 -do- 09.04.2013 -do- 19.03.2013 -do- 12.04.2013 -do- 18.03.2013 -do- 23.04.2013 -do- 15.03.2013 -do- 26.04.2013 -do-
Then the orders which were received by the assessee of Sh. Ajay Kumar Sood were from Asstt. Years 2005-06 to 2011-12 i.e. for 7 assessment years and the order of Sh. Ajay Goel were for two years i.e. for Asstt. Year 2010-11 & 2011-12 and in the of column for weight of 8 document, on the loose sheet for both the assessees, the common weight of 100 gms. have been mentioned, whereas the weight of orders of Sh. Ajay Kumar Sood and Ajay Goel cannot be same. Even, same weight has been mentioned of the documents in the case of third person.
That online tracking proves that the orders were received by the postal department on 4th of April 2013 and, whereas, the date of passing the order is of 28th of March 2013 and, as such, sufficient time was available with the department for dispatching the orders, if the orders would have been passed on 28th of March 2013. Thus, from the above said facts and circumstances, it is very clear that the order was not passed upto 31st of March 2013, since they were not ready and by virtue of above submissions, the department have not been able to prove that the assessment orders were passed on 28th of March, 2013 and, therefore, the assessment having become barred by time, the ground of appeal
of the assessee may, please, be allowed and oblige. The same issue is also covered by different judgments as being submitted separately.”
7. The DR relied upon the finding given by the CIT(A) and argued that the case may be decided on merits.
8. We have gone through the order of Hon’ble Himachal Pradesh High Court and the earlier order of the ITAT in and find that the only issue to be decided as to whether the assessment as framed by the Assessing Officer is barred by time or not. We find that in the earlier order of ITAT that this issue was not decided. Now as per the directions of Hon’ble Himachal Pradesh High Court, the case was fixed for hearing and heard. We have gone through the evidence of ‘India Postal record’ as per copies reproduced above and also the various dispatch sheets of different dates as per copies placed in the ‘Paper Book’ at pages 141 to154.
We find that in dispatch sheets, the signature of some official of the Postal department are very close to the last entry. There are different weights of each and every parcel. We have gone through two sheets for 30.03.2013, one is at page 85 and the other sheet has been placed at page 142 of the Paper Book. On the second sheet there is no signatures at the end of the written portion on one sheet. On the other some small initials are there down below. Which cause serious
9 doubts about the authenticity of such evidence. Sample copies of sheets are being reproduced hereunder:-
11 Certain other sample sheets are of other dates are being reproduced hereunder as placed in the paper book as per Departmental Record:-
Thus, there is apparent difference in the dispatch sheets as reproduced above. Signatures of officials of ‘India Post department’ are there just at the close of last entry and apparently differ from two dispatch sheets, dated 30.03.2013 where the name of the assessee appears.
We also find that there is documentary evidence that the orders were booked with the ‘India Post’ on 04.04.2013, which cannot be denied as there is documentary evidence and the ‘Docket Number’, dated 04.04.2013 has been mentioned at the envelope. Further, we find that as per the above sheet reproduced above, there may not be same weight of two orders for Asstt. Year 2009-10 and 2010-11 of the assessee and of the sister concern, where seven assessment orders were sent. In the other sheets as reproduced above, there is apparently different weight of each and every parcel. Besides, no evidence has been produced by the department that the documents were kept by the ‘Postal department’ for a week’s time as no such proof has been submitted. Thus, in view of the above said documentary evidence as furnished and the detailed submissions made by the assessee which have been enclosed in the ‘paper book’. We hold that from the evidence of ‘India Postal department’ and others, we have no hesitation in holding that the assessment as framed by the Assessing
14 officer is barred by limitation. Thus, the said assessment for Asstt. Year 2010-11, is quashed being time barred. 11. In the result, appeal of the Assessee is allowed.