Delay In Dispatch Of Assessment Order Renders It Void

From the facts discussed above as well the case laws, it is obvious that this Bench allowed repeated opportunities to the revenue for producing evidences so that the fact regarding date of framing of assessment order could be verified. However, the Department could not produce any evidence which prove that the assessment order was ready as on 31.12.2008. Thus, we have no option but to accept the contention of assessee that the assessment order was not passed on 31.12.2008. No doubt the provisions of section 153 requires that assessment order shall not be passed after the expiry of two years from the end of the assessment year in which the income was first assessable. This is applicable to this case. There is no requirement that service must be effected before the expiry date but there must be evidences to show that assessment order was indeed passed before the limitation. In the present case before us no such evidence has been adduced by revenue that the order was indeed passed on or before 31.12.2008. Even though the assessee has taken up this issue in appeal and revenue has repeatedly been asked to produce evidences to that effect. There is no evidence produced before this Bench to show that the assessment order and demand notice was dispatched by registered post as on the date of assessment order of 31.12.2008. Rather, evidences are against the revenue that the assessment order and demand notice were dispatched only on 12.02.2009 and the same was served on assessee on 16.02.2009 i.e. beyond 47 days of limitation. There can be postal delay of a week’s time or a fortnight’s time at the maximum and it cannot be 47 days’ delay. Hence, we are of the view that in order to make the assessment 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 and this should be done within the limitation period though actual service of the assessment order may be beyond that period. When an assessment order has been purported to have been passed within the prescribed period of limitation but the same is served on the assessee after unreasonable delay without being an explanation coming forward for such delay, in the absence of any explanation whatsoever it can safely be presumed that the order was not made on the date on which it purports to have  been made and on the basis of such presumption it can be held that the order was passed after the expiry of limitation. In such circumstances, taking into consideration all the facts, we hold that the assessment order was barred by limitation. Hence, we allow this jurisdictional issue in favour of assessee.

ITAT “A” BENCH: KOLKATA

I.T.A No. 240/Kol/2010
I.T.A No. 985/Kol/2010
Assessment Year: 2006-07

Please become a Premium member. If you are already a Premium member, login here to access the full content.