I.T.O WD - 2(1),KOLKATA, KOLKATA vs. PERU PLASTIC COMPANY PVT LTD., KOLKATA

Grounds of appeal

Aggrieved by the aforesaid order of the AO, the assessee preferred an appeal before CIT(A). One of the contentions raised by the assessee before CIT(A) was that order of assessment was in fact not passed by the AO on 31.12.2008 and that was the last date by which order of assessment could be passed for A.Y.2006-07 by the AO in terms of the provision of section 153 of the Act. This time limit of passing the order for A.Y.2006-07 being 31.12.2008 is not disputed by the revenue. The plea of the assessee before CIT(A) was that though the order of assessment is dated 31.12.2008, yet it was sent for service on the assessee by despatch by registered post only 13.01.2009. The said letter sent by the AO was returned by the postal authorities on 19.01.2009. Thereafter the Inspector served a notice of demand arising out of the order of assessment by affixture on 23.01.2009. It was therefore contended by the assessee that the AO could not have passed the order of assessment on 31.12.2008. In the remand report of the AO, the factual aspects of the case as set out above by the assessee with regard to the service of the order of assessment and notice of demand, were not disputed by the AO. The original envelope returned by the postal authorities were also perused by CIT(A). The CIT(A) found that the ITAT in the case of Dilip Mohan Seth vs ITO in order dated 29.06.2012 had taken a view that where despatch of an order of assessment i.e. order of assessment going out of the control of the AO, happens after the last date of period of limitation for passing an order of assessment then it has to be presumed that the order of assessment was passed only after the period of limitation. Following aforesaid decision, the CIT(A) held that the order of assessment dated 31.12.2008 was in fact passed by the AO after the said date and therefore order of assessment is barred by limitation. The order of assessment was accordingly annulled by CIT(A).

Aggrieved by the order of CIT(A) the revenue has preferred the present appeal before the Tribunal.

None appeared on behalf of the assessee. We have heard the submissions of the ld. DR, who could not controvert the findings of CIT(A). We are of the view that in Plastic Company Pvt. Ltd. A.Y.2006-07. the light of the findings of CIT(A) that the order of assessment and the notice of demand left the control of the AO after limitation date i.e. 31.12.2008 for passing an order of assessment for the relevant Assessment year, it has to be presumed that the order of assessment was in fact passed only after the period of limitation. In coming to the aforesaid conclusion we are supported by the decision of ITAT, Kolkata Bench in the case of Dilip Mohan Seth vs ITO (supra). Following the aforesaid decision and taking note of the admitted facts and circumstances of the present case, we are of the view that the order of CIT(A) does not call for any interference. Accordingly the appeal by the revenue is dismissed.

In the result the appeal of the revenue is dismissed.