Income Tax Appellate Tribunal - Cuttack
Nidan, Berhampur vs Acit, Central Circle-1, Bhubaneswar on 16 May, 2018
1
IN THE INCOME TAX APPELLATE TRIBUNAL,
CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER
AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
IT(ss) A Nos .32 to 37/CTK/2018
S.P.Nos.14 to 20/CTK/2018
(In IT(SS) A No.32 to 37/CTK /2018
ITA No.109/CTK/2018
Assessment Years : 2009-2010 to 2015-2016
M/s. Nidan, Infront of DIG Vs. ACIT, Central Circle-1,
Officer, Sales Tax Road, Bhubaneswar.
Berhampur.
PAN/GIR No.AAEFN 3022 D
(Appellant) .. ( Respondent)
Assessee by : Shri D.Parida/C.Parida, AR
Revenue by : Shri Saad Kidwai, CIT DR
Date of Hearing : 15/05/ 2018
Date of Pronouncement : 16 /05/ 2018
ORDER
Per N.S.Saini, AM
These are appeals filed by the assessee against the separate orders of the CIT(A)-2 Bhubaneswar all dated 25.1.2018 for the assessment years 2009-2010 to 2015-2016, respectively.
2. The assessee has raised the following grounds of appeal in the respective assessment years:
2009-2010 "1. That on the facts and in the circumstances of the case the Ld. CIT(A]-
II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus 2 making the assessment arbitrary, excessive, contrary to facts and bad in law.
" 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment order passed by the Ld. Assessing Officer is barred by limitation as the same has been passed and issued beyond the prescribed date i.e. 31.12.2016 and dispatched by the Ld. A.O. on 7.1.2017 through speed post served on the appellant on 9.1.2017.
3. That on the facts and in the circumstances of the case the Ld. CIT(A)-II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 144 in spite of the facts that the provisions of the said section along with the entire requirements of the notices u/s 142(1] and 143(2) have duly been complied during the assessment proceedings contrary to the evidences in support of the same .
4. On the facts and in the circumstance of the case and in law the requirements of the provisions as stipulated U/S 153D have not been complied properly thus making the assessment under section 153A of the Act bad in law.
5. That on the facts and in the circumstances of the case the Ld. CIT(A)II, Bhubaneswar is erred in law and facts in sustaining the rejection of the books of accounts u/s 145(3] but relying upon the Ld. A.O.'s description that no books of accounts was submitted contrary to the evidences in support of producing the said books of accounts along with bills and vouchers furthermore the fact being the said books of accounts was seized by the search team subsequently available with the assessing officer while handing over the seized materials.
6. That the learned C1T[A) has erred in law and on facts of the case in confirming the addition of suppressed receipts of Rs. 1,92,08,201/- on estimation @40% enhancement using the seized documents of non- incriminating nature of other years and statement recorded during the course of search of an employee and statement recorded of one of the partners after search without providing the copies of the said statements which could not have been relied upon in the assessment proceeding U/S 153A when no seized documents of incriminating nature has been found during the search.
7. That the learned CIT[A) has erred in law and on facts of the case in sustaining the disallowance of remuneration and interest to the partners of Rs.28,71,777/- U/S 184(5) without giving the benefit of the said section thus leading to a simple case of double taxation as the partners of the appellant Firm have offered it for taxation and accepted by the same Ld. A.O. 3
8. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for."
2010-2011 "1. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law.
" 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment order passed by the Ld. Assessing Officer is barred by limitation as the same has been passed and issued beyond the prescribed date i.e. 31.12.2016 and dispatched by the Ld. A.O. on 7.1.2017 through speed post served on the appellant on 9.1.2017.
3. That on the facts and in the circumstances of the case the Ld. CIT(A)-II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 144 in spite of the facts that the provisions of the said section along with the entire requirements of the notices u/s 142(1] and 143(2) have duly been complied during the assessment proceedings contrary to the evidences in support of the same.
4. On the facts and in the circumstance of the case and in law the requirements of the provisions as stipulated U/S 153D have not been complied properly thus making the assessment under section 153A of the Act bad in law.
5. That on the facts and in the circumstances of the case the Ld. CIT(A)II, Bhubaneswar is erred in law and facts in sustaining the rejection of the books of accounts u/s 145(3] but relying upon the Ld. A.O.'s description that no books of accounts was submitted contrary to the evidences in support of producing the said books of accounts along with bills and vouchers furthermore the fact being the said books of accounts was seized by the search team subsequently available with the assessing officer while handing over the seized materials.
6. That the learned C1T[A) has erred in law and on facts of the case in confirming the addition of suppressed receipts of Rs.2,01,67,827/- ujsing the losse sheet seized and marked as NIO-94 being non-incriminating nature rather a project report meant for bank finance and statement 4 recorded of one of the partners after search without providing the copies of the said statements which could not have been relied upon in the assessment proceeding U/S 153A when no seized documents of incriminating nature has been found during the search.
7. That the learned CIT[A) has erred in law and on facts of the case in sustaining the disallowance of remuneration and interest to the partners of Rs.53,13,025/- u/s. 184(5) without giving the benefit of the said section thus leading to a simple case of double taxation as the partners of the appellant Firm have offered it for taxation and accepted by the same Ld. A.O.
8. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for."
2011-2012 "1.That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law.
" 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment order passed by the Ld. Assessing Officer is barred by limitation as the same has been passed and issued beyond the prescribed date i.e. 31.12.2016 and dispatched by the Ld. A.O. on 7.1.2017 through speed post served on the appellant on 9.1.2017.
3. That on the facts and in the circumstances of the case the Ld. CIT(A)-II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 144 in spite of the facts that the provisions of the said section along with the entire requirements of the notices u/s 142(1] and 143(2) have duly been complied during the assessment proceedings contrary to the evidences in support of the same.
4. On the facts and in the circumstance of the case and in law the requirements of the provisions as stipulated U/S 153D have not been complied properly thus making the assessment under section 153A of the Act bad in law.
55. That on the facts and in the circumstances of the case the Ld. CIT(A)II, Bhubaneswar is erred in law and facts in sustaining the rejection of the books of accounts u/s 145(3] but relying upon the Ld. A.O.'s description that no books of accounts was submitted contrary to the evidences in support of producing the said books of accounts along with bills and vouchers furthermore the fact being the said books of accounts was seized by the search team subsequently available with the assessing officer while handing over the seized materials.
6. That the learned C1T[A) has erred in law and on facts of the case in confirming the addition of suppressed receipts of Rs.3,29,68,995/- using the losse sheet seized and marked as NIO-94 being non-incriminating nature rather a project report meant for bank finance and statement recorded during the course of search of an employee and statement recorded of one of the partners after search without providing the copies of the said statements which could not have been relied upon in the assessment proceeding U/S 153A when no seized documents of incriminating nature has been found during the search.
7. That the learned CIT[A) has erred in law and on facts of the case in sustaining the disallowance of remuneration and interest to the partners of Rs.66,55,536/- U/S 184(5) without giving the benefit of the said section thus leading to a simple case of double taxation as the partners of the appellant Firm have offered it for taxation and accepted by the same Ld. A.O.
8. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for."
2012-2013 "1.That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law.
" 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment order passed by the Ld. Assessing Officer is barred by limitation as the same has been passed and issued beyond the prescribed date i.e. 31.12.2016 and dispatched by the Ld. A.O. on 7.1.2017 through speed post served on the appellant on 9.1.2017.
63. That on the facts and in the circumstances of the case the Ld. CIT(A)-II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 144 in spite of the facts that the provisions of the said section along with the entire requirements of the notices u/s 142(1] and 143(2) have duly been complied during the assessment proceedings contrary to the evidences in support of the same.
4. On the facts and in the circumstance of the case and in law the requirements of the provisions as stipulated U/S 153D have not been complied properly thus making the assessment under section 153A of the Act bad in law.
5. That on the facts and in the circumstances of the case the Ld. CIT(A)II, Bhubaneswar is erred in law and facts in sustaining the rejection of the books of accounts u/s 145(3] but relying upon the Ld. A.O.'s description that no books of accounts was submitted contrary to the evidences in support of producing the said books of accounts along with bills and vouchers furthermore the fact being the said books of accounts was seized by the search team subsequently available with the assessing officer while handing over the seized materials.
6. That the learned C1T[A) has erred in law and on facts of the case in confirming the addition of suppressed receipts of Rs.3,90,37,105/- using the losse sheet seized and marked as NIO-94 being non-incriminating nature rather a project report meant for bank finance and statement recorded during the course of search of an employee and statement recorded of one of the partners after search without providing the copies of the said statements which could not have been relied upon in the assessment proceeding U/S 153A when no seized documents of incriminating nature has been found during the search.
7. That the learned CIT[A) has erred in law and on facts of the case in sustaining the disallowance of remuneration and interest to the partners of Rs.77,51,592/- U/S 184(5) without giving the benefit of the said section thus leading to a simple case of double taxation as the partners of the appellant Firm have offered it for taxation and accepted by the same Ld. A.O.
8. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for."
2013-2014 "1. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been 7 found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law.
" 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment order passed by the Ld. Assessing Officer is barred by limitation as the same has been passed and issued beyond the prescribed date i.e. 31.12.2016 and dispatched by the Ld. A.O. on 7.1.2017 through speed post served on the appellant on 9.1.2017.
3. That on the facts and in the circumstances of the case the Ld. CIT(A)-II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 144 in spite of the facts that the provisions of the said section along with the entire requirements of the notices u/s 142(1] and 143(2) have duly been complied during the assessment proceedings contrary to the evidences in support of the same .
4. On the facts and in the circumstance of the case and in law the requirements of the provisions as stipulated U/S 153D have not been complied properly thus making the assessment under section 153A of the Act bad in law.
5. That on the facts and in the circumstances of the case the Ld. CIT(A)II, Bhubaneswar is erred in law and facts in sustaining the rejection of the books of accounts u/s 145(3] but relying upon the Ld. A.O.'s description that no books of accounts was submitted contrary to the evidences in support of producing the said books of accounts along with bills and vouchers furthermore the fact being the said books of accounts was seized by the search team subsequently available with the assessing officer while handing over the seized materials.
6. That the learned C1T[A) has erred in law and on facts of the case in confirming the addition of suppressed receipts of Rs. 3,91,09,081/- on estimation @40% enhancement using the seized documents of non- incriminating nature of other years and statement recorded during the course of search of an employee and statement recorded of one of the partners after search without providing the copies of the said statements which could not have been relied upon in the assessment proceeding U/S 153A when no seized documents of incriminating nature has been found during the search.
7. That the learned CIT[A) has erred in law and on facts of the case in sustaining the disallowance of remuneration and interest to the partners of Rs.98,32,528/- U/S 184(5) without giving the benefit of the said section thus leading to a simple case of double taxation as the partners of the appellant Firm have offered it for taxation and accepted by the same Ld. A.O. 8
8. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for."
2014-2015 "1.That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that no incriminating documents whatsoever has been found and seized by the search team during the search U/S 132 of the I.T. Act, 1961 which is sine qua non for making the assessment U/S 153A thus making the assessment arbitrary, excessive, contrary to facts and bad in law.
" 2. That on the facts and in the circumstances of the case the Ld. CIT(A]- II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 153A in spite of the facts that the assessment order passed by the Ld. Assessing Officer is barred by limitation as the same has been passed and issued beyond the prescribed date i.e. 31.12.2016 and dispatched by the Ld. A.O. on 7.1.2017 through speed post served on the appellant on 9.1.2017.
3. That on the facts and in the circumstances of the case the Ld. CIT(A)-II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 144 in spite of the facts that the provisions of the said section along with the entire requirements of the notices u/s 142(1] and 143(2) have duly been complied during the assessment proceedings contrary to the evidences in support of the same.
4. On the facts and in the circumstance of the case and in law the requirements of the provisions as stipulated U/S 153D have not been complied properly thus making the assessment under section 153A of the Act bad in law.
5. That on the facts and in the circumstances of the case the Ld. CIT(A)II, Bhubaneswar is erred in law and facts in sustaining the rejection of the books of accounts u/s 145(3] but relying upon the Ld. A.O.'s description that no books of accounts was submitted contrary to the evidences in support of producing the said books of accounts along with bills and vouchers furthermore the fact being the said books of accounts was seized by the search team subsequently available with the assessing officer while handing over the seized materials.
6. That the learned C1T[A) has erred in law and on facts of the case in confirming the addition of suppressed receipts of Rs.3,16,69,504/- on estimation using the seized documents marked as NIO-102 & NDRBM-
901 to 04 being the cash book of non-incriminating nature never asked by the AO for compliance but used to make the addition which could not have been relied upon in the assessment proceedings u/s.153A when no seized documents of incriminating nature has been found during the search.
7. That the learned CIT[A) has erred in law and on facts of the case in confirming the procedure of estimation adopted by the AO when Bhubaneswar receipts of Rs.2,07,07,968/- shown in the accounts exceeds the receipts estimated at Rs.2,04,61,779/- stated in NDRBM -01 to 04 and wrong calculation of gross receipts out of the seized documents marked as NIO-102.
8. That the CIT(A) has erred in law and on facts of the case in sustaining the disallowance of remuneration and interest to the partners of Rs.94,01,881/- u/s.184(5) without giving the benefit of the said section thus leading to a simple case of double taxation as the partners of the appellant firm have offered it for taxation and accepted by the same AO.
9. That the learned C1T(A) has committed serious error in not quashing the assessment order passed by the ld. assessing officer which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant Firm be given reliefs as prayed for."
2015-2016 "1. That on the facts and in the circumstances of the case the Ld. CIT(A)-II, Bhubaneswar is erred in law and facts in upholding the assessment order passed by the Ld. ACIT, Central Circle-I, Bhubaneswar U/S 144 in spite of the facts that the provisions of the said section along with the entire requirements of the notices u/s 142(1) and 143(2) have duly been complied during the assessment proceedings contrary to the evidences in support of the same .
2. On the facts and in the circumstance of the case and in law the requirements of the provisions as stipulated U/S 153D have not been complied properly thus making the assessment under section 153A of the Act bad in law.
3. That on the facts and in the circumstances of the case the Ld. CIT(A)-II, Bhubaneswar is erred in law and facts in sustaining the rejection of the books of accounts u/s 145(3) but relying upon the Ld. A.O.'s description that no books of accounts was submitted contrary to the evidences in support of producing the said books of accounts along with bills and vouchers and unit wise gross receipts mentioned in the assessment order out of the books readily available with him.
4. That the learned CIT(A) has erred in law and on facts of the case in confirming the addition of suppressed receipts of 10 Rs.3,60,76,821 on estimation @ 40% enhancement using the seized documents marked as NIO-94 pertaining to the A.Y.10-11 & A.Y.11-12.
5. That the learned CIT(A) has erred in law and on facts of the case in sustaining the disallowance of remuneration and interest to the partners of Rs. 24,25,986 U/S 184(5) without giving the benefit of the said section thus leading to a simple case of double taxation as the partners of the appellant Firm have offered it for taxation and accepted by the same Ld. A.O.
6. That the CIT(A) has committed serious error in not quashing the assessment order passed by the AO which is per se illegal, unjust, not based on the facts of the appellant's case and contrary to the provisions of the Act, should be quashed and the appellant firm be given reliefs as prayed for."
4. In all the above seven appeals, the assessee raised a legal ground which is that the orders of assessment passed by the Assessing Officer are barred by limitation.
5. The facts relating to this issue are that a search and seizure operation was conducted in the case of the assessee on 28.5.2014. In pursuance to the said search, order u/s.153A r.w.s 144 of the Act was passed for the assessment years 2009-2010 to 2014-15 and assessment for the assessment year 2015-16 was made u/s.144 of the Act. The said orders of assessment were served upon the assessee on 9.1.2017 though all the orders were dated 30.12.2016.
6. Before the CIT(A), the assessee contended that the aforesaid orders being despatched on 7.1.2017 are barred by limitation. The CIT(A) observed that as the orders were dated 30.12.2016 and in absence of any material to show that the Assessing Officer re-visited these orders after 30.12.2016 upheld the orders and drawn support from the decision of 11 Hon'ble Calcutta High Court in the case of CIT vs. Binani Industries ltd., (2015) 59 taxmann.com 389 (Cal).
7. Before us, the assessee produced copy of envelope by which the orders of assessment were sent to the assessee by the Assessing Officer and copy of track record of Speed Post to show that the impugned orders of assessment were, in fact, dispatched by the Assessing Officer on 7.1.2017, though the orders were dated 30.12.2016. The assessee contended that as the orders were dispatched after 30.12.2016, therefore, the orders of assessment were barred by limitation. He placed reliance on the decision of Hon'ble Karnataka High Court in the case of CIT vs. B J N Hotels Ld., (2017) 79 taxmann.com 336(Kar).
8. On the other hand, ld D.R. placed reliance on the orders of the CIT(A).
9. Ld D.R. could not explain when the orders were prepared on 30.12.2016 why it could not be dispatched on or before 31.12.2016.
10. We find that Section 153B(1)(a) reads as under:
"153B (1) Notwithstanding anything contain in section 153, the AO shall make an order of assessment or reassessment -
(a) In respect of each assessment year falling within six assessment years [and for the relevant assessment year or years] referred to in clause (b) of sub-section (1) of section 153A, within a period of twenty-one months from the end of the financial year in which the last of the authorisations for search under section 132 or for requisition under section 132A was executed."
11. A perusal of the above provisions show that the language used by the legislature in the above provision is in negative and the words used are "order of assessment" and not only "assessment". The word order 12 denotes a command which is to be followed by somebody else. Unless the command is communicated to the person by whom it has to be followed, it does not become an "order".
12. In our considered view, simply determining the total income of an assessee and determining its tax liability on a piece of paper and signing the same may constitute an assessment but only on its communication to the assessee it becomes "order of assessment". Thus, in our considered opinion, to become a legal valid order of assessment, its communication must be within a period of limitation prescribed by the law though the communication may end after the prescribed period of limitation. Our above view derives support from the decision of Hon'ble Karnakata High Court in the case of B J N Hotels Ltd (supra), wherein, it has been held as under"
"That the revenue is neither able to point out from the records that the assessment orders were dispatched on 27.4.2007 nor produced the dispatch register to establish that the orders were complete and effective i.e. it was issued, so as to be beyond the control of the authority concerned within the period of limitation i.e. 29.4.2007. Admittedly, the assessment orders were served on the assessee on 30.4.2007. hence, the assessment orders passed were barred by limitation."
In the above decision, Hon'ble High Court follows its one earlier decision and has stated as under:
"An identical issue was before this Court in ITA No.832/2008 (D.D. 14.10.2014 in the case of Maharaja Shopping Complex vs DCIT. This court following the judgment of Kerala High Court in the case of Government Wood works vs State of Kerala (1988) 69 STC 62 has held that in the absence of dispatch date made available to the Court from the records, to prove that the order is issued within the prescribed period, order passed by AO is barred by limitation. The said judgment squarely applies to the facts of the present case."13
13. To the same effect are the decisions of Hon'ble Kerala High Court, which are in the case of (i) K. Joseph Jacob vs Agricultural Income Tax Officer & another (1991) 190 ITR 464 (Ker) and (ii) Commissioner of Agricultural Income Tax Officer vs. Kappumalai Estate, 234 ITR 187 (Ker).
14. The Jodhpur Bench of this Tribunal also held similarly in the case of Shanti Lal Godawat and Others vs. ACIT, reported in 126 TTJ (Jd) 135.
15. In view of above plethora of judicial precedents, in our considered opinion, the decision of Hon'ble Calcutta High Court relied upon by the CIT(A) in the case of Binani Industries Ltd., (supra) will not deter us as it is a settled position of law that when two divergent views are expressed by two different Hon'ble High Courts, none of which are Hon'ble Jurisdictional High Court, then the view favourable to the assessee should be followed. For this, we derive support from the decision of Hon'ble Supreme Court in the case of CIT vs. Vegetable Products Ltd., 88 ITR 192 (SC).
16. Coming to the facts of the instant case, it is not in dispute that the last authorisation u/s.132 of the Act was executed on 28.5.2014.
Twenty- one months from the end of the financial year 2014-2015 expires on 31.12.2016. Therefore, the orders of assessment in pursuance to the said search for the assessment years 2009-2010 to 2015-2016 were to be made on or before 31.12.2016.
17. It is not in dispute that the orders of assessment under consideration were dispatched only on 7.1.2017. Hence, in our considered opinion, the said orders of assessment were time barred and 14 consequently, we set aside the same and allow this ground of appeal of the assessee for all the seven years under appeal.
18. In view of our above decision, other grounds of appeal taken in all the appeals have become infructuous and, accordingly, not adjudicated upon.
19. The assessee has filed stay applications for stay of demand. As we have heard and decided the appeals of the assessee, the stay petitions of the assessee have become infructuous and accordingly, they are dismissed.
20. In the result, appeals filed of the assessee are allowed and the stay applications filed by the assessee are dismissed.
Order pronounced on 16 /05/2018.
Sd/- sd/-
(Pavan Kumar Gadale) (N.S Saini)
JUDICIALMEMBER ACCOUNTANT MEMBER
Cuttack; Dated 16 /05/2018
B.K.Parida, SPS
Copy of the Order forwarded to :
1. The Appellant : M/s. Nidan, Infront of DIG
Officer, Sales Tax Road, Berhampur
2. The Respondent. ACIT, Central Circle-1,
Bhubaneswar.
3. The CIT(A)- 2, Bhubaneswar
4. Pr.CIT-2, Bhubaneswar
5. DR, ITAT, Cuttack
6. Guard file. BY ORDER,
//True Copy//
SR.PRIVATE SECRETARY
ITAT, Cuttack