Income Tax Act, 1961

--Rectification--Mistake apparent Limitation--After processing assessee's return of income under section 143(1)(a), 'a' rectification order was passed on last date of limitation, i.e., on 31-3-2004 and served on assessee by dasti on 18-10-2005 and as such, it was barred by limitation. There was no explanation on record addressing why order allegedly dated 31-3-2004 could be served on 18-10-2005. In fact, it was a backdated order and as such barred by limitation.

The hearing took place before the assessing officer in 154 proceedings on 1-5-2001 and as per the undisputed fact on record the order dated 31-3-2004 was served upon the assessee on 18-10-2005. This fact has not been disputed by the department. No arguments have been advanced to contend that some other mode of service/services were adopted initially which failed and on account of the failure of such attempts which ought to have been demonstrated the various modes were exhausted and the order finally could be served on 18-10-2005. No effort has been made on the part of the department to address the huge gap of time between the alleged date of the order and the date on which it was admittedly served that too by 'dasti'. Under these peculiar facts, this Tribunal does much merit in the arguments of the department and finds no rationale basis to draw a presumption in favour of the department without evidence to explain the same. There is no explanation on record addressing why the order allegedly dated 31-3-2004 could be served on 18-10-2005. There is no doubt that the order was meant for the assessee to act upon why the same continued instead to remain with the department till it could be served, i.e., on 18-10-2005 is a very serious lapse. The inordinate delay between passing of order which happens to be the last date on which the limitation expired, i.e., 31-3-2004 and 18-10-2005 the date on which the order was served by dasti leads only to one conclusion that the order under section 154 is backdated which has been arrived at in the impugned order. As such, the conclusion suggested on behalf of the department cannot be accepted as no cogent material evidence has been brought to the notice of the Bench in order to come to the contrary findings. The burden placed upon the department in support of the ground challenging the findings of facts has not been discharged. [Para 6] In the facts of the present case, admittedly order under section 154 allegedly dated 31-3-2004 as per material available on record continued to remain with the said authority as it was communicated for the first time only on 18-10-2005 the said authority never become functus officio as since in this case it was not to be pronounced/published but communication necessarily and imperatively had to be made. No mode of communication by way of postal authority or otherwise prior to 18-10-2005 has been pressed into service on behalf of the department. [Para 6.1] Accordingly, the 154 order passed by the assessing officer has rightly been quashed on the ground of limitation by the Commissioner (Appeals). [Para 6.2]