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04-01-2019, Globe Transport Corporation, Section 153(2A), Tribunal Bangalore

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2 months 1 week ago #8288 by amit
Section - 153(2A), 250, 254, 263, 264
Order Date - 04-01-2019
Favouring - Assessee
Court - Tribunal Bangalore
Appellant - Globe Transport Corporation
Respondent - ACIT
Justice - N.V. VASUDEVAN VP & JASON P. BOAZ AM
Citation - 119Taxpundit85
Appeal No. - ITA Nos. 629 to 631/Bang/2014
Asstt. Year - 2001-02, 2002-03 & 2003-04

Order

PER : N.V. VASUDEVAN

These are appeals by the Revenue and Assessee against three orders all dated 30.1.2014 of CIT(Appeals)-I, Bangalore, relating to assessment years 2001-02 to 2003-04.

2. First we shall take up for consideration the common issue raised in Gr.No.2 in the three appeals filed by the Assessee for AYs 2001-02 to 2003-04 respectively. In Gr.No.2, the Assessee has raised a plea that the orders of assessment passed by the AO dated 30 12.2011 in all the three AYs 2001-02 to 2003-04 were barred by limitation as laid down in Sec.153(2A) read with second proviso thereto of the Income Tax Act, 1961 (Act).

3. The material facts as far as the aforesaid ground of appeal raised by the Assessee are that the Assessee which is a partnership firm, is engaged in Transport business. For AYs 2001-02 to 2003-04, the Assessee filed returns of income on 23.10.2001, 31.10.2002 and 28.11.2003 respectively. In AY 2001-02 an order of assessment u/s.143(3) of the Act dated 3.3.2003 was passed As far as AY 2002¬03 is concerned, the return of income was processed u/s.143(1) of the Act on 3.3.2003. As far as AY 2003-04 is concerned the return of income was processed u/s.143(3) of the Act on 7.7.2004.

4. The Assessment for AYs 2001-02 to 2003-04 were reopened by issue of notice u/s.148 of the Act. Notice u/s. 148 of the Act was issued dated 12.12.2007 for AYs 2001-02 & 2002-03 and dated 18.03.2007 for the AY 2003-04. In the assessment completed for all the 3 assessment years, additions were made to the total income of the assessee on account of inflation of expenses, disallowance u/s. 40A(3), unexplained investments in purchase of trailer and other additions.

5. Aggrieved by the additions in the aforesaid orders of assessment, the assessee filed appeal before the CIT(Appeals), who by three orders all dated 12.11,2009 gave partial relief to the assessee. The assessee as well as the department filed appeals before the Tribunal against the order of CIT(Appeals). The Tribunal in ITA Nos. 92 to 92/Bang/2010 vide order dated 05.10.2010 in all the assessee’s appeals set aside the orders of CIT(Appeals) and remanded for fresh consideration by the AO the assessments for all the three assessment years Following were the relevant observations of the Tribunal in this regard:-

“16. Therefore, in the interest of justice and fair play, we find that these assessments be redone by the assessing authority after following all the principles of natural justice and confining to the materials already available on record. Accordingly, we set aside the orders of the lower authorities and remit back the cases to the Assessing Officer for fresh disposal in according with law. We refrain our elves from expressing any opinion on the grounds raised before us both of law and of facts. The remands are open.” (emphasis supplied by us)

6. After the order of ITAT, the AO completed the order of assessment in all the three assessment years on 30.12.2011. Against the addition made in the aforesaid orders of assessment, the assessee filed appeals before the CIT(Appeals) for all the three assessment years. Before the CIT(Appeals), the assessee contended that the order of assessment dated 30.12.2011 passed by the AO for all the three assessment years is barred by time as per the provisions of section 153(2A) of the Act. The contention of the assessee was that through the orders of assessment was dated 30.12.2011, those orders were despatched only on 09.01.2012 through the Bangalore GPO through Speed Post to the assessee and the same was served on the assessee only on 10.01.2012. The above fact is not in dispute and is evident from the postal cover in which the order of assessments were despatched to the assessee and the reply of the post office on the date of despatch of those letters to the assessee. The postal department has confirmed that the orders of assessment were despatched for service on the assessee only on 09.01.2012. A copy of the post-office letter in this regard is placed at page 133 of PB of assessee filed for AY 2001-02.

7. The provisions of section 153(2A) applicable for the relevant assessment years insofar as it is relevant for the present appeal reads as follows:-

“(2A) Notwithstanding anything contained in sub-sections (1), (1A), (1B) and (2), in relation to the assessment year commencing on the 1st day of April, 1971, and any subsequent assessment year, an order of fresh assessment in pursuance of an order under section 250 or section 254 or section 263 or section 264, setting aside or cancelling an assessment, may be made at any time before the expiry of one year from the end of the financial year in which the order under section 250 or section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner:

Provided that where the order under section 250 or section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, on

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