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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
Per Pavan Kumar Gadale, JM
This is an appeal filed by the revenue against the order of CIT(A)-
Cuttack, dated 26.12.2012, for the assessment year 2007-08.
On the date of hearing before us, none appeared on behalf of the
assessee. However, written submission dated 27.4.2017 was filed and is
on record.
Although the revenue has raised multiple grounds of appeal, but the
sole issue requires for adjudication before us is whether the assessment
order and demand notice dated 29.12.2009 served on the assessee was
barred by limitation u/s.153(1) of the I.T.Act, 1961 or not.
2 ITA No. 165/CT K/ 2013 Asse ssment Year : 20 07- 08
Brief facts of the case are that the assessee company is in the
business of trading of ores and minerals and filed the return of income on
15.11.2007 and the case was selected for scrutiny. Notices u/s. 142(1) and
143(2) of the Act were issued to the assessee. Subsequently, the case
was fixed for hearing and ld A.R. appeared and the case was adjourned to
29.12.2009 with specific direction to produce further evidence/documents
in support of alleged enhancement of share capital, sundry creditors, etc.
Since, there was no compliance from the assessee, the Assessing Officer
made best judgment assessment u/s.144 of the Act, inter alia, making
addition in respect of donations and subscriptions, introduction of share
capital and sundry creditors.
Aggrieved by the said order of the Assessing Officer, the assessee
has filed an appeal before the CIT(A). The CIT(A) relied on the decision of
this co-ordinate Bench of the Tribunal in the case of the assessee for the
assessment year 2007-08 in ITA No.416/CTK/2011 and C.O.
No.13/CTK/2012, wherein, the matter was restored to the file of the CIT(A).
The CIT(A) examined the assessment record for the said assessment year
and called for the photocopy of documents evidencing service of
assessment order and demand notice for the impugned assessment,
whereas the Assessing Officer vide letter dated 13.12.2012 intimated to
the CIT(A) that date of service of the assessment order is 16.4.2010 and
copy of the demand notice was received by the assessee on 16.4.2010.
The limitation date of the assessment is 31.12.2009 whereas the Assessing
3 ITA No. 165/CT K/ 2013 Asse ssment Year : 20 07- 08 officer has passed the order u/s.144 on 29.12.2009 and there is a delay of
106 days beyond the statutory period of limitation being 31.12.2009 and
the CIT(A) relied on the decision of co-ordinate Bench in the case of ACIT
vs. Orissa Stevendors Ltd. (2012) 16 ITR (Trib) 431 (CTC), and observed
that the assessment order and demand notice served is time barred by
limitation and non-est in law and allowed the appeal of the assessee.
Aggrieved by the order of the CIT(A), the revenue has filed an appeal
with the Tribunal .The Ld D.R argued on the grounds that the CIT(A) erred
in treating the service as barred by limitation and action of service of
assessment order as non-est in law. whereas the demand notice and the
assessment order are not barred by limitation u/s.153(1) of the Act. Ld
D.R. relied on the provisions of section 153(2) of the I.T.Act, 1961, and the
decision of Hon’ble Calcutta High Court in the case of Badri Prasad Bajoria
vs CIT (197) 64 ITR 362 (Cal) and other judicial decisions and contended
that the action of the CIT(A) is not in accordance with law and prayed for
restoring the order of the Assessing officer.
We perused the written submissions filed by the assessee and judicial
decisions supporting the action of the CIT(A).
i) Karnani Industrial Bank Ltd., (1978) 113 ITR 380 (Cal)
ii) Viswanathan Chettiar, 25 ITR 79 (Mad)
iii) N. Subba Rao, 48 ITR 808 (Mys)
iv) Badri Prasad Bajoria(1967) 64 ITR 362 (Cal)
v) Andhra Pradesh vs M Rama Krishitah & Co. (1994) 93 STCZ 406 (SC) vi) Tulsi Mohyapatra (ITA Nos.412 & 413/CTk/2011)
4 ITA No. 165/CT K/ 2013 Asse ssment Year : 20 07- 08 vii) Delhi Foot Wear vs Sales Tax Officer order dated 25.9.2014 in W.P(C0 No.2971 of 2009
After considering the written submissions of the assessee and the
findings of the Assessing Officer and the arguments of ld D.R., we are of
the considered opinion that this issue is similar to the decision of this Bench
of the Tribunal in the case of Orissa Stevedors Ltd (supra), wherein, it has
been held as under:
“that the demand notices and assessment orders were served on the same day i.e. March 26,2010 though they were purportedly made on December 29, 2009. There was no material in the assessment records which could indicate that initiative was taken by the AO to serve the assessment orders alongwith demand notices immediately after passing of the assessment orders on December 29,2009. The Commissioner (Appeals) rightly came to the conclusion that the assessment orders in these cases though made on December 29,2009 were served on the assessee on March 26,2010 i.e. after 85 days from the date of order. Since there was a delay of 85 days in serving the assessment orders alongwith demand notices the assessment orders for these years were barred by limitation and accordingly they were ineffective and non-est in law.”
We also perused the decision of Hon’ble Jurisdictional High Court in
the case of Delhi Foot Wear vs Sales Tax Officer order dated 25.9.2014 in
W.P(C0 No.2971 of 2009, wherein, the Hon’ble High Court held that if the
notice issued is in valid for any reason, then the proceeding initiated in
pursuance of such notice would be illegal and invalid. In the case before us,
the assessment order was made on 29.12.2009 and served on the assessee
alongwith demand notice on 16.4.2010, and, there is a delay of 106 days,
which is beyond the limitation time. Accordingly, we find that the disputed
issue is covered by the decision of the co-ordinate bench of the Tribunal in
5 ITA No. 165/CT K/ 2013 Asse ssment Year : 20 07- 08 the case Orissa Stevedors Ltd (supra) and the decision of Hon’ble
Jurisdictional High Court in the case of Delhi Foot wear (supra), and we
respectfully follow the same and concur with the observations of the CIT(A)
and dismiss the ground taken by the revenue.
In the result, appeal filed by the revenue is dismissed.
Order pronounced in the open court on 24 /05/2017 in the presence of parties. Sd/- sd/- (N.S Saini) (Pavan Kumar Gadale) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 24 /05/2017 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : ACIT, Circle 2(2), Cuttack 2. The Respondent. M/s. New Age Data Net Pvt Ltd., C/O. Multi Tech Computer, High Court Square, Chandin Chowk, Cuttack 3. The CIT, Cuttack 4. Pr.CIT, Cuttack 5. DR, ITAT, Cuttack 6. Guard file. //True Copy// BY ORDER,
SR.PRIVATE SECRETARY ITAT, Cuttack