M/S. SUN STEEL INDUSTRIES (P) LTD.,KOLKATA vs. DCIT, CIRCLE - 3(1) , KOLKATA

आदेश /O R D E R This assessee’s appeal for assessment year 2013-14, arises against the Commissioner of Income-tax (Appeals)-2, Kolkata’s order dated 17.04.2017 passed in case No.919/CIT(A)-2/14-15, involving proceedings u/s. 143(3) r.w.s. 115WE(3) of the Income Tax Act, 1961; in short ‘the Act’. Heard both the parties. Case file perused. 2. I come to assessee’s former legal issue as per it’s first substantive ground that the assessment order dated 23.12.2009 has to be time barred since served on 22.01.2010. There is no dispute between the parties that the relevant time limitation for the framing of the impugned assessment was upto 31.12.2009. The precise question that requires my apt adjudication as to it is date of the order or that of actual service of assessment order which requires to be taken as the date of framing of the impugned assessment. I notice in this backdrop that hon'ble Kerala high court’s M/s Sun Steel Industries P. Ltd. Vs. DCIT, Cir-3(1), Kol. Page 2 decision in [1995] 212 ITR 456 CIT vs. Sree Narayana Chandrika Trust holds that it is the date of actual service as per hon'ble apex court’s decision in B.J Shelat vs. State of Gujarat [1978] AIR SC 1109 (SC) that has to be taken as the date of the order in issue. Their lordships detailed discussion to this effect reads as under:- “… We shall now deal with the other references and applications under section 256(2) which have been heard along with these references. The questions referred for the year 1978-79 are similar, except that one further question has been referred at the instance of the assessee, namely, “whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the order of the Commissioner of Income-tax passed under section 263 is not barred by limitation.”. We shall deal with this question which arises in Income-tax References Nos. 81 and 82 of 1986 relating to this year. The Income-tax Officer made an order on January 12, 1981, holding that income accruing to the assessee-trust from the firms of which it was a partner was exempt under section 10(22A), as income accruing to the hospital, deviating from the stand taken by him earlier. The Commissioner of Income-tax took up the matter in revision under section 263 and set aside the order of assessment. The revisional order was passed on January, 11, 1983, and communicated within a period of six days thereafter. The question was whether the exercise of the revisional power was barred by time. The Tribunal held otherwise and sustained the order. It is in these circumstances that the additional question has been referred. Sub-section (2) of section 263 as it stood at the relevant time, prescribed that no order shall be made under sub-section (1) of the section after the expiry of two years from the date of the order sought to be revised. The Tribunal was of the view that the Commissioner had passed his order within the time prescribed, though it was communicated later. The question as to when an order can be stated to have been made was the subject of consideration by this court in Government Wood Workshop v. State 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 concern, 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.’