Income Tax Appellate Tribunal - Indore
Harendrapal Singh Bratia vs Cit on 11 June, 2004
Equivalent citations: (2004)91TTJ(INDORE)598
ORDER
T.R. Sood, A.M. In this appeal, assessee has taken various grounds. An additional ground has also been taken which is as follows :
"That on the facts and circumstances the order of CIT ostensibly dated 12-12-2000, under section 263 of the Income Tax Act, 1961, against the assessment order dated 12-2-1999, for assessment year 1995-96 was served on the assessee on 30-7-2001, and, therefore, the said order was presumably not passed on the date it bears and it is barred by limitation.
At the time of hearing, learned Authorised Representative submitted that he would press only the additional ground.
2. After hearing both the parties, additional ground was admitted for adjudication as the same involved legal issue.
3. Learned Authorised Representative submitted that impugned order passed by CIT is barred by limitation, as the same was admittedly served upon the assessee after 230 days of passing of the same, i.e., on 30-7-2001. He then referred to letter of Assistant Commissioner, dated 26-8-2003, which was filed by learned Departmental Representative. He contended that this letter is not supported by any reliable evidence or same is not accompanied by any material on the basis of which it could be said that order under section 263 was issued to Income Tax Officer's office on 12-12-2000. He submitted that there is a legal presumption that the order was not passed on the date it bears, if the same has not been served or issued from the office of the authority who has passed the same. He strongly relied on CIT v. Swarna Taneja (1990) 186 ITR 348 (MP), CIT v. Shree Narayana Chandhrika Trust (1995) 212 ITR 456 (Ker), Cochin Plantation Ltd. v. State of Kerala (1997) 227 ITR 38 (Ker), Cornmr. of Agrl. IT v. Kappumalai Estate (1998) 234 ITR 187 (Ker) and State of Andhra Pradesh v. M Ramkishtaiah & Co. 93 STC 406 copy of headnote filed.
4. On the other hand, learned Departmental Representative submitted that there was a distinction between 'service of the order' and 'passing of order'; there are certain sections which make service of order mandatory and some provisions do not require service of the order. He then referred to the provisions of section 263 and submitted that in this case service of order was not required. He further submitted that in any case the order was served by CIT's office on 12-12-2000, and to this effect a copy of letter written by Assistant Commissioner-III(1), Indore, has also been filed on record.
5. We have considered the contentions of the parties very carefully and have gone through the relevant material on record as well as decisions cited by the parties. Sub-section (2) of section 263 reads as under :
"No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed."
A plain reading of this provision would show that revisionary order under section 263 would have been passed upto 31-3-2001, because assessment order was passed on 12-2-1999. Now, we have to examine whether order passed under section 263 is barred by limitation or not. We are unable to agree with the contention of learned Departmental Representative that there is no requirement of service under section 263. Even if there is no requirement, any order passed by any authority the same has to be pronounced or published so that party affected has a means of knowing it. In this connection, we reproduce the para extracted by Hon'ble Kerala High Court in CIT v. Shree Narayana Chandrika Trust (supra).
"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 concerned, 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."
Similarly, Hon'ble Supreme Court in State of Andhra Pradesh v. M Ramkistaih & Co. (supra) observed that in the absence of any explanation whatsoever, the court may presume that the order was not made on the date it is purported to have been made and that it could have been made after the expiry of the period. In the case before us, no explanation has been given that why the order was served on 30-7-2001. Even the contents of letter dated 26-8-2003, are not reliable because there is no evidence in the form of Dak book or memorandum of internal movement which shows that order was issued by the office of the CIT. In view of this, the natural legal presumption as pronounced in the abovenoted two authorities and other cases cited by learned Authorised Representative is that order may have been passed after the limitation of time. In these circumstances, we allow the additional ground raised by the assessee and quash the order under section 263 being time-barred.
6. In the result, appeal is allowed.