INCOME-TAX APPELLATE TRIBUNAL - LUCKNOW "A" BENCH

I. T. A. No. 410/LKW/2012 (block period ending on 14.9.2002).

SUNIL KUMAR YADAV (Judicial Member) and
J. SUDHAKAR REDDY (Accountant Member)

Praveen Kumar, Commissioner of Income-tax, for the appellant.
Rakesh Garg, Advocate, for the respondent.

The order of the Bench was delivered by

1 SUNIL KUMAR YADAV (Judicial Member}.-This appeal is preferred by the Revenue against the order of the learned Commissioner of Income-tax (Appeals) who has set aside the assessment after holding that the assess­ment framed is barred by limitation. However, the grounds of appeal raised in this appeal are extracted hereunder : .

1. That the learned Commissioner of Income-tax (Appeals) has erred in law and on facts in annulling the assessment, without appreciating the fact that the communication of dismissal of the assessee's writ petition against the proceedings initiated under section 158BC of the Income-tax Act, was made to the Assessing Officer only on November 9, 2010, and that the Assessing Officer could not have proceeded to take up the assess­ment proceedings before November 9, 2009, consequently, the period of limitation was counted from such date.

2. That the learned Commissioner of Income-tax (Appeals) has erred in law and on facts in erroneously applying the ratio of the decision of the hon'ble Court in the case of CCE v. M. M. Rubber & Co. [1992] Suppl (1) SCC 471 \VP(C) No. 4821 of 2010 pages 16 of 68 and Municipal Corpo­ration of Delhi v. Qimat Rai Gupta [2007] 7 SCC 309, wherein it has been expressly held in paragraph 18 as quoted in the Commissioner of Income­tax (Appeals)'s order as " ... If the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order ... ". Thus the period of limitation has rightly been reckoned from the date of commu­nication of order of the hon'ble High Court in this case, Le., November 9, 2009.

3. That the learned Commissioner of Income-tax (Appeals) has erred in law and on facts in applying a ratio which is not applicable to the present proceedings under the Income tax Act and that too erroneously applying the explicit ratio.

4. That the order of the learned Commissioner of Income-tax (Appeals) deserves to be vacated and the assessment order passed by the Assessing Officer be restored.

2 The facts in brief culled out from the orders of the lower authorities and the documents available on record are that a search was conducted at the assessee's premises on September 14, 2002 and notice under section 158BC of the Income-tax Act, 1961 (hereinafter called in short "the Act") was issued on April 29, 2003. Consequent thereto return was filed by the asses­see on June 16, 2003. The search proceedings were challenged by the assessee before the hon'ble High Court by filing a writ petition and the assessment proceedings was stayed vide interim order dated February 12, 2004. Subsequently the stay order was vacated on August 26, 2009.

The normal time for passing the order under section 158BC of the Act is of 3 two years from the end of the month in which search took place and in the instant case up to September 30, 2004. Since the proceedings were stayed by the hon'ble High Court, the time during which proceedings were stayed by the order of the hon'ble High Court, i.e., February 12, 2004 to August 26, 2009 was to be excluded. Therefore, the time available with the Assessing Officer to frame the assessment was up to April 15, 2010, but the Assessing Officer passed the order on June 22, 2010. Against this order, the assessee preferred an appeal before the learned Commissioner of Income-tax (Appeals) with the submission that the vacation of stay order was communicated to the Assessing Officer on November 9,2009, therefore, the remaining period available for framing assessment would start from November 9, 2009 and not from August 26, 2009. The contentions of the assessee were not accepted by the learned Commissioner of Income-tax (Appeals) and the held that it is not the practice of the High Court~ to send copy of the order to the appellant or -respondent as is done when the order is passed by the Assessing Officer, the learned Commissioner of Income-tax (Appeals), the Income-tax Appellate Tribunal or the Settlement Commission. The order of the hon'ble High Court is pronounced in the open court and the limitation starts from the very day of pronouncement and if any party is interested in seeking the copy of the order, he/she may apply to the registrar of the court for a copy and time taken for obtaining the copy is excluded from the period of limitation. The relevant observations of the learned Commissioner of Income-tax (Appeals) are extracted hereunder:

"On going through the assessment order and the submission made (which have been extracted above), I am of the considered view that the stay granted by the hon'ble High Court got vacated as soon as the hon'ble court pronounced it in the open court. It is not the practice of the High Courts to send copy of the order to the appellant or the respondent as is done when the orders are passed by the Assessing Officer, the Commissioner of Income-tax (Appeals), the Income-tax Appellate Tribunal or even the Settlement Commission. The order of the hon'ble High Court is pronounced in the open court and if a party is interested in seeking a copy of the order, he/she has to apply to the registrar of the court for a copy. Thus, the date of the order of the High Court is the date on which the same is pronounced/passed, which in the instant case is August 26, 2009. The Assessing Officer has taken the date of vacation of the injunction as November 9, 2009, which was the date on which the copy of the order was received by him. It is not understood as to from which law did the Assessing Officer get the impression that the date of the order of the hon'ble High Court would be the date on which he receives a copy ? Clause (i) of Explanation 1 to section 158BE is crystal clear in this regard. When the law is clear, nothing more can be added, subtracted or sub­stituted. Reference is made to the decision of the hon'ble Supreme Court in the case of State of Madhya Pradesh v. G. S. Dall & Flour Mills [1991] 187 ITR 478 (SC), page 785. In this view of the matter, since the assessment order has been framed beyond the time of limitation as provided in section 158BE, the impugned assessment cannot survive and is, therefore, annulled."

4 Aggrieved the Revenue has preferred an appeal before the Tribunal. The learned Commissioner of Income-tax (Departmental representative), Shri Praveen Kumar has contended that limitation only starts when the order is received. Since the order was received by the Assessing Officer on Novem­ber 9, 2009, the limitation for the balance period would only start from November 9, 2009 and not from August 26, 2009. Therefore, the assess- , ment order was passed within the period of limitation.

5 Learned counsel for the assessee, Shri. Rakesh Garg, advocate strongly refuted the contentions of the learned Commissioner of Income-tax (Departmental representative) with the submission that as per the Income­tax Act or the Rules, the orders of the authorities are required to be communicated by post to the assessee/respondent and the limitation starts from the date of receipt of the order. But in the High Court, the Supreme Court or any other civil courts, the limitation always starts from the date when the order is pronounced in the open court. However, whatever time is taken in obtaining the certified copy of the order would be excluded as per the provisions of section 12 of the Limitation Act. Nowhere it has been mentioned in any High Court rule or under the Limitation Act that the limitation starts only from the receipt of the order of the court. Whenever the Legislature is conscious about this fact, they had made a specific pro­vision in the particular Act. Since the time available for the balance period starts from August 26, 2009, the assessment could have been completed up to April 15, 2010. Since the assessment was framed on June 22, 2010, it is barred by limitation. Learned counsel for the assessee has placed reliance upon the judgment of the hon'ble Supreme Court in the case of Regional Director, ONCC Ltd. v. Association of Scientific and Technical Officers, ONCC Ltd. [2013] 354 ITR 156 (SC), in which it has been categorically held that the moment writ petition is dismissed and interim relief is vacated, the parties are to revert back to the position they had on the day when the interim relief was granted.

Having heard the rival submissions and from a careful perusal of the orders of the lower authorities, we find that undisputedly the stay granted by the hon'ble High Court was vacated on August 26,2009 and from that day if the limitation starts, the time available with the Assessing Officer was only April 15, 2010, but the assessment order was passed on June 22, 2010. In the civil courts and the High Courts, limitation always starts horn the date of pronouncement of the judgment/order and as per provisions of section 12 of the Limitation Act, whatever time is consumed in obtaining the certified copy of the order, the same is excluded from the computation of period of limitation. Wherever the limitation starts from the date of receipt of the judgment/order by the appellant/respondent, the Legislature has made a specific provision in the concerned Act. In the Income-tax Act/ Rules specific provisions are made to clarify that the period of limitation always starts from the date of receipt of order by the appellant/respondent. But such type of clarification has not been given either in the High Court Rules or the General Clauses Act or any other civil laws. The writ petitions are filed as per the High Court Rules or the General Clauses Act where the limitation always starts from the date of pronouncement of the order/judg­ment. Therefore, once the stay is vacated, the assessee has to revert back to its position as on February 12, 2004 and the balance time available for framing the assessment was only up to April 15, 2010. Since the assess­ment order was passed on June 22, 2010, it is certainly barred by limitation. Similar view has already been expressed by the apex court in the case of Regional Director, ONCC Ltd. v. Association of Scientific and Technical Officers, ONCC Ltd. [2013] 354 ITR 156 (SC).Therefore, in the light of the aforesaid judgment, we are. of the considered view that the assessment framed by the Assessing Officer is barred by limitation. Accordingly, we do not find any infirmity in the order of the learned Commissioner of Income- tax (Appeals) who has rightly annulled the assessment being barred by limitation.

In the result, the appeal of the Revenue is dismissed.