ACIT, Cuttack v. Dr Tulasi Prasad Mohaptra, Cuttack

ITA 412/CTK/2011 | 2007-2008
Pronouncement Date: 17-02-2012

Appeal Details

RSA Number 41222114 RSA 2011
Assessee PAN AERPM5641N
Bench Cuttack
Appeal Number ITA 412/CTK/2011
Duration Of Justice 4 month(s) 19 day(s)
Appellant ACIT, Cuttack
Respondent Dr Tulasi Prasad Mohaptra, Cuttack
Appeal Type Income Tax Appeal
Pronouncement Date 17-02-2012
Appeal Filed By Department
Bench Allotted DB
Tribunal Order Date 17-02-2012
Date Of Final Hearing 17-01-2012
Next Hearing Date 17-01-2012
Assessment Year 2007-2008
Appeal Filed On 28-09-2011
Judgment Text
IN THE INC O ME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE : SHRI K.K.GUPTA AM AND SHRI K.S.S.PRASAD RAO JM ITA NO S . 412 AND 413/CTK/2011 AND C.O.NOS.27 & 28/CTK/2011 (ASSESSMENT YEAR S 2007 - 08) (C.OS. FILED BY THE ASSESSEES) ASST.COMM ISSIONER OF INCOME - TAX CIRCLE 2(2) CUTTACK. VERSUS 1 . DR. TULSI PRASAD MOHAPATRA BH. PURI BUS STAND SRIRAM NAGAR ARUNODAYA MARKET BADAMBADI CUTTACK PAN NO. AERPM 5641 N 2 . DR.(SMT.) DEBADUTTA MALLICK ADDRESS AS ABOVE PAN: AERPM 5907 M. (APPELLANT) (RE SPONDENT) FOR THE APPELLANT: SHRI A.BHATTACHARJEE DR FOR THE RESPONDENT S: SHRI S.N.SAHOO AR DATE OF HEARING : 17.01.2012 DATE OF PRONOUNCEMENT : ORDER SHRI K.S.S.PRASAD RAO JM : THE APPEALS ARE FILED BY THE DEPARTMENT WHEREAS TH E CROSS OBJECTIONS ARE FILED BY THE ASSESSEES AGAINST THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) PASSED FOR THE ASSESSMENT YEAR 2007 - 08 IN CASE OF THE ASSESSEES. SINCE THE ASSESSEES ARE HUSBAND AND WIFE AND THE ISSUES IN BOTH THE APPEALS PLEADED BY THE DEPARTMENT AND THE ISSUES IN BOTH THE CROSS OBJECTIONS ARE COMMON AND SIMILAR THEY WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. THE ASSESSEE DR. TULASI PRASAD MOHAPATRA IS AN INDIVIDUAL. HE IS EMPLOYED WITH M.K.C.G.MEDCICAL COLLEGE AND HOSPTITAL BERHAMPUR AS ASSOCIATE PROFESSOR (UROLOGY) AND DERIVES INCOME FROM SERVING IN CUTTACK UROLOGY CENTRE A PROPRIETARY CONCERN OF HIS WIFE SMT.DEBADU T TA MALLICK AND INTEREST INCOME ON FIXED DEPOSITS . THE ASSESSEE DR.(SMT.)DEBADUTTA MALLICK IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF RUNNING A NURSING HOME IN THE NAME AND STYLE OF CUTTACK UROLOGY CENTRE IN PROPRIETORSHIP. A SURVEY OPERATION ITA NOS.412 AND 413/CTK/2011 AND C.O.NOS.27 & 28/CTK/2011 2 U/S.133A OF THE I.T.ACT 1961 WAS CONDUCTED IN THE CLINICAL RE MISES OF M/S.CUTTACK UROLOGY CENTER ON 16.1.2007. BASED ON THE MATERIAL GATHERED DURING SURVEY ADDITIONS UNDER DIFFERENT HEADS WERE MADE BY THE ASSESSING OFFICER IN THE CASE OF THE RESPECTIVE ASSESSEES AS UNDER: 1. DR.TULASI PRASAD MOHAPATRA CONSULTAN CY FEES. .. 4 29 400 FEES FROM SURGICAL OPERATINS. .. 12 97 310 DISALLOWANCE OF SALARY TO STAFF .. 48 000 2. DR.(SMT.)DEBADUTA MALLICK. TOTAL BUSINESS INCOME. .. 23 14 885 DISALLOWANCE OF SALARY TO STAFF .. 45 600 PAYMENT OF DOCOTRS FEES. .. 20 900 AGGRIEVED THE ASSESSEES FILED APPEALS BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS). BESIDES CHALLENGING THE MERITS OF ADDITIONS THE ASSESSEES RAISED A SPECIFIC GROUND THAT THE ORDER PASSED ON 31.2.2009 AND SERVED ON 10.5.2010 IS BARRED BY LIMITATION BEING PASSED BACK - DATED AND HENCE SHOULD BE QUASHED IN TOTO. THE LEARNED CIT(A) CONSIDERED THIS GROUND AND AFTER HEARING THE ASSESSEES IN HIS ELABORATED ORDER CAME TO THE CONCLUSION THAT THE APPELLANT RECEIVED T HE ORDERS OF ASSESSMENT ALONG WITH DEMAND NOTICE ON 10.5.2010 I.E. AFTER 130 DAYS OF THE DATE OF ORDER. HE WAS OF THE VIEW THAT AS COMMUNICATION IS CONDITION PRECEDENT TO AN ORDER OF ASSESSMENT BECOMING EFFECTIVE AND THERE IS A DELAY OF 130 DAYS IN SERVIN G THE ASSESSMENT ORDER ALONG WITH NOTICE OF DEMAND THE ASSESSMENT IN THE CASE OF BOTH THE ASSESSEES ARE BARRED BY LIMITATION. THEREFORE HE HELD THAT THE ASSESSMENT ORDERS ARE NON EST AND INEFFECTIVE UNDER LAW. IN VIEW OF THIS PERHAPS THE LEARNED CIT(A) H AS NOT ADJUDICATED ON OTHER GROUNDS RELATING TO AGITATION ON MERITS OF THE ADDITIONS. AGAINST THE ASSESSMENT ORDERS THE REVENUE IS IN APPEAL BEFORE US. WHEREAS THE ASSESSEES HAVE SUPPORTED THE IMPUGNED ORDERS OF THE LEARNED CIT(A). HOWEVER THEY RAISED A DDITIONAL GROUNDS WITH A ITA NOS.412 AND 413/CTK/2011 AND C.O.NOS.27 & 28/CTK/2011 3 PRAYER TO ADJUDICATE THE MERITS OF ADDITIONS IN CASE THE APPEALS OF THE REVENUE ARE ALLOWED SETTING ASIDE THE ORDERS OF THE LEARNED CIT(A) BECAUSE SINCE THE LEARNED CIT(A) HAS HELD THE ASSESSMENT ORDERS AS NON EST HE HAS NOT CONS IDERED THE MERITS OF ADDITIONS THOUGH CHALLENGED BEFORE HIM. 3. DURING THE COURSE OF HEARING THE LEARNED DR VEHEMENTLY CONTENDED THAT THE ORDERS OF THE LEARNED CIT(A) ARE UNSUSTAINABLE FOR LEGAL SCRUTINY AS THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDERS WITHIN THE PRESCRIBED TIME LIMIT PRESCRIBED IN THE STATUTE. THE SERVICE OF THE SAID ORDERS TO THE ASSESSEE IS NOT ALL CONTEMPLATED IN THE ACT. HENCE THE LEARNED CIT(A) WENT WRONG IN OBSERVING THAT COMMUNICATION OF ORDER IS A CONDITION PRECEDENT FOR AN ORDER OF ASSESSMENT BECOMING EFFECTIVE. APART FROM THAT THE LEARNED DR HAS RELIED ON THE FOLLOWING DECISIONS. 1. KODIDASU APPALASWAMY AND SURYANARAYANA VS. COMMISSIONER OF INCOME TAX A. P [ 46 ITR 735 (AP)]; 2. RAMANAND AGARWALLA VS. COMMISSIONER OF INCOME TAX NORTH EASTERN REGION SHILLONG. [151 ITR 216 (GAU.)]; 3. K.U.SRINIVASA RAO V. COMMISSIONER OF WEALTH - TAX [46 CTR 256: 152 ITR 128 (AP)]; 4. INDIA FERRO ALLOY INDUSTRY PVT. LIMITED VS. COMMISSIONER OF INCOME TAX [202 ITR 671 (CAL)] 5. PREM NATH MOTORS (P) LTD. V. COMMISSIONER OF SALES TAX (COPY PLACED ON PB ON PAGES 24 - 28); 6. DECISION OF ITAT KOKLATA IN THE CASE OF ELKOM ENTERPRISES PVT.LTD. V. INCOME - TAX OFFICER IN ITA NO.1081/KOL/2009 DT.30.4.2010 (COPY PLACED ON PB ON PAGES 29 - 40); 7 . DECISION OF ITAT CUTTACK IN THE CASE OF TORSTEEL LIMITED V. ASST.COMMISSIONER OF INCOME - TAX IN ITA NO.059/CTK/2011 DT.17.06.2011 (COPY PLACED ON PAES 41 - 49). THE LEARNED DR RELYING ON THE ABOVE JUDICIAL PRONOUNCEMENTS HAS ASSAILED THE ORDERS PASSED BY THE LEARNED CIT(A) AND SOUGHT FOR SETTING ASIDE THE SAME BY ALLOWING THE DEPARTMENTS APPEALS. ITA NOS.412 AND 413/CTK/2011 AND C.O.NOS.27 & 28/CTK/2011 4 4. CONTRARY TO THIS THE LEARNED AR OF THE ASSESSEE HAS CONTENDED THAT THE CITATIONS RELIED ON BY THE LEARNED DR ARE NOT AT ALL APPLICABLE TO THE FACTS OF THE P RESENT CASES ON HAND AS THEY ARE DISTINGUISHABLE ON FACTS. THUS CONTENDED HE DISTINGUISHED THE FACTS OF THOSE CASES FROM THE CASES ON HAND. HE FURTHER SUBMITTED THAT THE ORDERS OF THE LEARNED CIT(A) ARE WELL REASONED AND IN ACCORDANCE WITH THE JUDICIAL PR ONOUNCEMENTS RELIED O N BY THE LEARNED CIT(A) AND HENCE THE IMPUGNED ORDERS OF THE LEARNED CIT(A) AR E NOT INFIRM IN ANY WAY REQUIRING INTERFERENCE SINCE THE CITATIONS RELIED ON BY THE LEARNED DR ARE DISTINGUISHABLE ON FACTS AND CANNOT BE APPLICABLE TO THE FA CTS OF THE PRESENT CASES. THEREFORE HE SOUGHT FOR UPHOLDING THE ORDERS OF THE LEARNED CIT(A) BY DISMISSING THE APPEALS OF THE DEPARTMENT AND ALLOWING THE CROSS OBJECTIONS FILED BY THE ASSESSEE. 5. ON CAREFUL ANALYSIS OF THE IMPUGNED ORDERS PASSED BY THE L EARNED CIT(A) IT IS FOUND THAT THE ASSESSMENT ORDERS WERE PASSED ON 31.12. 2009 BUT THEY WERE SERVED ALONG WITH DEMAND NOTICE TO THE ASSESSEE S ON 10.5.2010 I.E. AFTER 130 DAYS APPROXIMATELY. BASING ON THIS DELAYED SERVICE THE LEARNED AR OF THE ASSESSEE CONTEND ED THAT THE PROVISIONS AS CONTEMPLATED IN SECTION 153(2) OF THE INCOME - TAX ACT 1961 CLEARLY MANDATES THAT NO ASSESSMENT BE MADE AFTER THE PERIOD OF LIMITATION. THIS PROVISION WAS INTERPRETED BY VARIOUS JUDICIAL FORUMS INCLUDING HONBLE APEX COURT AND HON BLE KERALA HIGH COURT AND ITAT JODHPUR BENCH HOLDING THAT THE PROVISION REQUIRES THAT IN ORDER TO BE EFFECTIVE THE ASSESSMENT ORDER BE PASSED NOT ONLY BE PASSED BEFORE THE EXPIRY OF THE LIMITATION BUT ALSO BE COMMUNICATED TO THE ASSESSEE BEFORE EXPIRATIO N OF THE LIMITATION PERIOD. HE FURTHER CONTENDED THAT EVEN BEFORE THE TRIBUNAL ALSO THE DEPARTMENT IS NOT ABLE TO SHOW OR EXPLAIN AS TO WHY SO MUCH DELAY APPROXIMATELY OF 130 DAYS WAS ITA NOS.412 AND 413/CTK/2011 AND C.O.NOS.27 & 28/CTK/2011 5 TAKEN IN SERVICE OF ORDERS TO THE ASSESSEE THIS ITSELF IMPLIES THAT THE AO HAS NOT PASSED THE ORDER ON THE DATE MENTIONED IN THE ASSESSMENT ORDER. HE MIGHT HAVE PASSED IT AT A LATER DATE AND ISSUED A COPY OF THE ORDERS ALONG WITH DEMAND NOTICE ETC. FOR SERVICE ON THE ASSESSEE AFTER EXPIRY OF 130 DAYS FROM THE DATE OF END OF THE LIMITATION PROVIDED UNDER THE ACT. IT IS HELD BY THE JUDICIAL FORUMS THAT SUCH A SERVICE DOES NOT SUPPORT THE ORDER S HAVING PASSED THE ORDERS BEFORE THE TIME LIMIT PROVIDED IN THE ACT AS THE SERVICE WAS MADE AFTER THE EXPIRY OF THE LIMITATION PERIOD AN D IN THE PRESENT CASE AFTER A LONG PERIOD APPROXIMATELY 130 DAYS . THEREFORE THE LEARNED CIT(A) HAS RIGHTLY HELD THAT THE ASSESSMENTS ARE BARRED BY LIMITATION AND HENCE THEY ARE NONEST AND INEFFECTIVE IN LAW. ACCORDINGLY HE SOUGHT FOR DISMISSING THE APPE ALS OF THE DEPARTMENT AND ALLOW THE CROSS OBJECTIONS OF THE ASSESSEE. 6 . ON CAREFUL ANALYSIS OF THE ORDERS PASSED BY THE DEPARTMENTAL AUTHORITIES IT IS FOUND THAT THE LEARNED CIT(A) HAS FOUND FROM THE ASSESSMENT RECORD THAT THE ASSESSMENT ORDERS WERE PASSE D BY THE ASSESSING OFFICER ON 31.12.2009 AND DEMAND NOTICE U/S.156 DT. 31.12.2009 AND ORDERS OF ASSESSMENT AND DEMAND NOTICES WERE SERVED ON THE ASSESSEE ON 10.5.2010 . NOTICE U/S.274(1)(B) WAS SIGNED BY THE ASSESSING OFFICER ON 31.12.2009 ASKING THE ASSESSE E TO APPEAR BEFORE HIM ON 21.5.2010 . THE SAID NOTICE WAS SE NT BY THE ASSESSING OFFICER ON 31.12. 2009. THESE NOTICES WERE ALSO RECEIVED BY THE ASSESSEES REPRESENTATIVE ON 21.5.2010 . WE FURTHER F O UND THAT THERE IS NO MATERIAL IN THE ASSESSMENT RECORD WHICH COULD INDICATE THAT INITIATIVE WAS TAKEN BY THE ASSESSING OFFICER TO SERVE THE ASSESSMENT ORDERS ALONG WITH DEMAND NOTICE IMMEDIATELY AFTER PASSING OF THE ASSESSMENT ORDERS ON 31.12.2009 . THEREAFTER THE LEARNED CIT(A) CONSIDERED THE JUDICIAL PRONOUNCEMENT S RELIED ON BY THE ASSESSEE AS FOLLOWS : ITA NOS.412 AND 413/CTK/2011 AND C.O.NOS.27 & 28/CTK/2011 6 1. K.JOSEPH JACOB V. AGRICULTURAL INCOME TAX OFFICER & ANOTHER (1991) 190 ITR 464 (KER) WHEREIN IT WAS HELD THAT THE ORDER OF ASSESSMENT COMES INTO FORCE ONLY WHEN IT IS COMMUNICATED. THIS IS NOT ONLY BY REASON OF SECTION 30 OF THE KERALA AGRICULTURAL INCOME TAX ACT 1950 BUT ALSO FOR A MORE FUNDAMENTAL REASON NAMELY THAT A PARTY AGAINST WHOM AN ORDER IS MADE MUST BE PUT ON NOTICE OF THAT ORDER. THE DATE OF MAKING OR SIGNING THE ORDER IS NOT DETERMINATIVE OF ITS E FFECT. AT THAT STAGE THE ORDER IS ONLY UNILATERAL IN A SENSE AND NOT IRREVOCABLE; IT BECOMES BILATERAL OR BINDING ONLY ON COMMUNICATION. 2. IN THE CASE OF COMMISSIONER OF AGRICULTURAL INCOME TAX V.KAPPUMALAI ESTATE (234 ITR 187) HONBLE KERALA HIGH COURT HAS TAKEN A SIMILAR VIEW. 3. IN SHANTI LAL GODAWAT AND OTHERS V.ACIT (126 TTJ (JD) 135) ITAT JODHPUR BENCH THE ASSESSMENT ORDER THOUGH PASSED ON 28.12.2007 IT WAS DESPTACHED TO THE ASSESSEE ON 2.1.2008 AND ACCORDINGLY SERVED ON THE ASSESSEE. THE TRIBUNA L HELD THAT THE LAST DATE OF PASSING THE ORDER BEING 31.12.2007 THE ASSESSMENT ORDERS SERVED ON 2.1.2008 WERE BEYOND THE PERIOD OF LIMITATION AND AS SUCH THE ASSESSMENT ORDERS ARE NON EST AND INEFFECTIVE UNDER LAW. 4. HONBLE APEX COURT IN THE CASE OF B .J.SHELAT V. STATE OF GUJARAT REPORTED IN AIR 1978 SC 1109 HELD THAT AN ORDER TAKES EFFECT ONLY ON COMMUNICATION. 5. IN THE CASE OF MOHENDRA J.THACKER & CO. V. CIT (139 ITR 793) (CAL)] JUSTICE SABYASACHI MUKHARJI AS HE WAS THEN HELD THAT COMMUNICATION IS A CONDITION PRECEDENT TO AN ORDER OF ASSESSMENT BECOMING EFFECTIVE. ITA NOS.412 AND 413/CTK/2011 AND C.O.NOS.27 & 28/CTK/2011 7 THEREFORE THE LEARNED CIT(A) HAS COME TO THE CONCLUSION THAT THE ASSESSMENT ORDERS IN THESE CASES THOUGH MADE ON 31.12. 2009 THOSE WERE SERVED ON THE ASSESSEE NO 10.05.2010 I.E. AFTE R 130 DAYS FROM THE DATE OF ORDER. SINCE THE CONDITION PRECEDENT TO AN ORDER OF ASSESSMENT BEING EFFECTIVE AND THERE IS DELAY OF 130 DAYS IN SERVING THE ASSESSMENT ORDERS ALONG WITH DEMAND NOTICES THE LEARNED CIT(A) HELD THAT THE ASSESSMENT ORDERS FOR AS SESSMENT YEAR IN CASE OF BOTH THE ASSESSEES ARE BARRED BY LIMITATION AND ACCORDINGLY THEY WERE HELD INEFFECTIVE AND NON - EST IN LAW. 7 . NOW COMING TO THE JUDICIAL PRONOUNCEMENTS RELIED ON BY THE LEARNED DR IT IS FOUND THAT THE TRIBUNALS ORDER OF JODHPUR B ENCH WAS APPEALED BEFORE THE HONBLE RAJSTHAN HIGH COURT AND IT IS PENDING ADJUDICATION BUT IT IS NOT THE CASE OF THE DEPARTMENT THAT THE HONBLE HIGH COURT HAS STAYED THE OPERATION OF THE SAID ORDER OF THE ITAT. 8 . IN THE CASE OF KODIDASU APPALASWAMY & SURYANARAYANA (SUPRA) THE ASSESSMENT ORDER WAS PASSED ON 29.3.1957 AND SERVED ON THE ASSESSEE ALONG WITH DEMAND NOTICE ON 6.4.1957 HAVING DELAY OF SIX DAYS ONLY. BUT IN THE PRESENT CASE ON HAND THERE IS DELAY OF 85 DAYS THAT TOO UNEXPLAINED BEFORE THE TR IBUNAL AND NO MATERIAL IS AVAILABLE IN THE ASSESSMENT RECORD AS CAN BE SEEN FROM THE OBSERVATION OF THE LEARNED CIT(A) IN HIS IMPUGNED ORDERS. 9 . IN THE CASE OF RAMANAND AGARWALLA V. CIT (SUPRA) THE ASSESSMENT ORDER IS DT.16.3.1968 BUT SERVED ON THE ASSES SEE ON 13.4.1968 WITH A DELAY OF 13 DAYS. BUT IN THIS CASE THE DEMAND NOTICE WAS DT.13.4.68 AND IT WAS SERVED ON THE ASSESSEE ON 13.4.68 ALONG WITH THE ASSESSMENT ORDER. 10 . IN THE CASE OF K.U.SRINIVASA RAO V. CWT (SUPRA) THE ISSUE INVOLVED IS THAT THE AS SESSMENT ORDER DT.31.7. 1979 WAS SERVED ON 31.7.1979 IS BARRED BY ITA NOS.412 AND 413/CTK/2011 AND C.O.NOS.27 & 28/CTK/2011 8 LIMITATION OR NOT. HERE ALSO THE DELAY IS ONLY 20 DAYS APPROXIMATELY. 11 . IN THE CASE OF INDIA FERRO ALLOY INDUSTRY PVT. LTD. V. CIT (SUPRA) HONBLE CALCUTTA HIGH COURT HAS CONSIDERED THE ISSUE OF ASSESSMENT ORDER PASSED ON 15.4.1980 SERVED ON 22.10.1980 WITH A DELAY OF SEVEN DAYS. 12 . IN THE CASE OF PREM NATH MOTORS (P) LTD V. COMMISSIONER OF SALES TAX (SUPRA) HONBLE DELHI HIGH COURT HAS CONSIDERED THE ISSUE WHETHER THE ASSESSMENT ORDER SHOULD BE BARRED BY LIMITATION JUST BECAUSE THE DEMAND NOTICE WAS SERVED ON THE ASSESSEE BEYOND THE TIME BARRED PERIOD. 13 . IN THE CASE OF ELKOM ENTERPRISES PVT. LTD. V. INCOME - TAX OFFICER ITAT KOLKATA BENCH (SUPRA) THE ISSUE INVOLVED IS THAT THE ASSES SMENT ORDER AND THE DEMAND NOTICE DT.27.12.2007 SERVICED ON 7.4.2008 IS WHETHER BARRED BY LIMITATION OR NOT. IN THIS CASE THE FACTS ARE THAT THE AYS ARE INVOLVED 2005 - 06 AND 2006 - 07. FOR THE ASSESSMENT YEAR 2006 - 07 THE ASSESSMENT ORDER WAS GENERATED ON 8. 2.2008 ON THE BASIS OF RETURN AFTER ADJUSTMENT AGAINST DEMAND THAT HAS ARISEN FROM THE ASSESSMENT ORDER RELATING TO THE AY 2005 - 06. THIS SOWS THAT THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2005 - 06 WAS PASSED ON 8.2.2008 AND THE ASSESSMENT RECORDS FOR ASSESS MENT YEAR 2006 - 07 REVEALED THAT THE ASSESSMENT ORDER WAS PASSED N 15.1.2008 GENERATING A REFUND ORDER. FURTHER VERIFICATION OF THE ASSESSMENT RECORD REVEALED THAT THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2005 - 06 WAS IN EXISTENCE ON 15.1.2008. IN THIS P ECULIAR FACTS AND CIRCUMSTANCES OF THE CASE ITAT KOLKATA BENCHES HELD THAT THE ASSESSMENT ORDER WAS VERY MUCH READY ON 15.1.2008. 14 . IN THE CASE OF TORSTEEL LIMITED V. ASST.COMMISSIONER OF INCOME - TAX (SUPRA) ITAT CUTTACK BENCHES HAS CONSIDERED THE ISSUE W HETHER THE ASSESSMENT ORDER DT.26.11.2007 SERVED ON 24.2.2010 IS BARRED BY LIMITATION. IN THIS CASE THE BENCH HAS HELD THAT THE ASSESSMENT ORDER DESPTACHED AFTER ITA NOS.412 AND 413/CTK/2011 AND C.O.NOS.27 & 28/CTK/2011 9 DELAY OF ABOVE TWO YEARS WAS NOT BARED BY LIMITATION. THE DEMAND NOTICE HAD ALREADY BEEN SENT TO TH E ASSESSEE ON 31.3.2008 WHICH IS AMPLY CLEAR THAT THERE WAS A DEMAND NOTICE WHICH WILL ARISE OUT OF THE ASSESSMENT ORDER. THIS PROVES THAT THE SAID ASSESSMENT ORDER WAS PASSED WITHIN THE PERIOD OF LIMITATION. 15 . ON COMPARISON OF THE PRESENT FACTS AND CIRC UMSTANCES AVAILABLE IN THE PRESENT CASE ON HAND THE FACTS AND CIRCUMSTANCES OF THE ABOVE CASES ARE DISTINGUISHABLE MORE SO WHEN THE DEMAND NOTICE AND ASSESSMENT ORDERS IN THE PRESENT CASE WERE SERVED ON THE SAME DAY I.E. 10.05. 2010 THOUGH THEY WERE PURPO RTEDLY MADE ON 31.12. 2009. THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF HONBLE APEX COURT RENDERED IN THE CASE OF B.J.SHELAT V. STATE OF GUJARAT (SUPRA) AS WELL AS THE DECISION OF HONBLE KOLKATA HIGH COURT RENDERED IN THE CASE OF MOHENDRA J.THACKER & CO. V. CIT (SUPRA) WHICH HAVE CATEGORICALLY HELD THAT THE COMMUNICATION IS A CONDITION PRECEDENT TO AN ORDER OF ASSESSMENT BECOMING EFFECTIVE AND ALSO IN FOLLOWING THE DECISION OF HONBLE KERALA HIGH COURT IN THE CASE OF K.JOSEPH JACOB V. AGRICULTURAL INCOME TAX OFFICER (SUPRA) DEALING WITH SECTION 35(2) OF THE AGRICULTURAL INCOME TA ACT SIMILAR LY WORDED AS IN SECTION 153 OF THE I.T.ACT 1961 WE ARE OF THE CONSIDERED VIEW THAT THE VIEW TAKEN BY THE ITAT JODHPUR BENCH IN THE CASE OF SHANTI LAL GODAWAT & OTHERS V. ASST.COMMISSIONER OF INCOME - TAX [126 TTJ (JD) 135] BEING THE RULE OF PRECEDENCE BASED ON THE APEX COURTS JUDGMENT STATED SUPRA THE IMPUGNED ORDERS PASSED BY THE LEARNED CIT(A) IN THE PRESENT APPEALS ARE PERFECTLY VALID AND SUSTAINABLE FOR LEG AL SCRUTINY. FURTHER ON SIMILAR FACTS AND CIRCUMSTANCES THIS BENCH IN THE CASE OF ASST.COMMISSIONER OF INCOME - TAX V. M/S.ORISSA STEVEDORES INITA NO.409 410 411/CTK/2011 AND C.O.NOS.30 31 AND 32/CTK/2011 VIDE ITA NOS.412 AND 413/CTK/2011 AND C.O.NOS.27 & 28/CTK/2011 10 CONSOLIDATED ORDER DT.22.12.2011 HAS DISMISSED THE DEPARTMENTAL APPEALS. ACCORDINGLY WE UPHOLD THE IMPUGNED ORDERS OF THE LEARNED CIT(A) BY DISMISSING ALL THE DEPARTMENTAL APPEALS. SINCE THE CROSS OBJECTIONS OF THE ASSESSEE ARE SUPPORTING THE ORDERS PASSED BY THE LEARNED CIT(A) AND IN VIEW OF UPHOLDIN G THE CIT(A)S ORDERS AS STATED SUPRA THE CROSS OBJECTIONS OF THE ASSES SEE ARE DISPOSED OF ACCORDINGLY AS THE CASES NO MORE SURVIVE FOR CONSIDERATION ON MERITS OF THE ADDITIONS IN CASE OF BOTH THE ASSESSEES. 16 . IN THE RESULT ALL THE APPEALS OF THE DEP ARTMENT ARE DISMISSED AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISPOSED OF ACCORDINGLY. S D/ - S D/ - (K.K.GUPTA) ACCOUNTANT MEMBER ( K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 17.02.2012 H.K.PADHEE SENIOR PR IVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: ASST.COMMISSIONER OF INCOME - TAX CIRCLE 2(2) CUTTACK. 2. 1 . THE RESPONDENT: DR. TULSI PRASAD MOHAPATRA BH. PURI BUS STAND SRIRAM NAGAR ARUNODAYA MARKET BADAMBADI CUTTACK PAN NO. AERPM 5641 N 2 . DR.(SMT.) DEBADUTTA MALLICK ADDRESS AS ABOVE PAN: AERPM 5907 M. 3. THE CIT 4. THE CIT(A) 5. THE DR CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY.