REPORTABLE IN SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6204 OF 2021 Commissioner of Income Tax, Chennai ..Appellant(S) Versus Mohammed Meeran Shahul Hameed ..Respondent(S) JUDGMENT M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with impugned judgment and order dated 03.07.2019 passed by High Court of Judicature at Madras in Tax Case Appeal No.429 of 2019, by which High Court has dismissed said appeal preferred by revenue and has confirmed order dated 04.04.2013 passed by learned Income Tax Appellate Tribunal (hereinafter referred to as learned ITAT) in ITA Signature Not Verified No.2244/Mds/2012, revenue has preferred present Digitally signed by R Natarajan Date: 2021.10.07 16:34:47 IST Reason: appeal. 1 2. facts leading to present appeal in nutshell are as under: 2.1 Assessing Officer (hereinafter referred to as AO) passed assessment order under Section 143 (3) of Income Tax Act (hereinafter referred to as Act) for assessment year (AY) 2008 09 vide assessment order dated 30.12.2010. Commissioner of Income Tax initiated revision proceeding under Section 263 of Act to revise assessment order passed by learned Assessing Officer and issued notice to assessee respondent herein on 01.02.2012. assessee respondent herein filed written submissions on 07.03.2012 and 12.03.2012. That learned Commissioner passed order under Section 263 of Act on 26.03.2012 holding that Assessing Officer had failed to make relevant and necessary enquiries and to make correct assessment of income after due application of mind and thus assessment order made under Section 143 (3) of Act was held to be erroneous and prejudicial to interest of revenue. learned Commissioner set aside assessment order with direction to Assessing Officer to make necessary enquiries on aspects mentioned in 2 order under Section 263. order passed by learned Commissioner in exercise of powers under Section 263 of Act was challenged by assessee respondent herein before learned ITAT. At this stage, it is required to be noted that order passed under Section 263 of Act was dispatched by office of Commissioner on 28.03.2012. 2.2 assessee respondent herein filed appeal before learned ITAT on 29.11.2012 submitting that it had come to know about revision order only when he received notice dated 06.08.2012 under Section 143 (2) read with Section 263 of Act from office of Assessing Officer. Thereafter, respondent had requested Assessing Officer to furnish copy of order passed by learned Commissioner which was supplied to him on 29.11.2012. Before learned ITAT, it was case on behalf of assessee respondent herein that order passed by learned Commissioner was beyond period of limitation prescribed/mentioned under Section 263 (2) of Act. Vide order dated 04.04.2013 learned ITAT accepted contention on behalf of assessee respondent herein and allowed appeal filed by assessee by holding that 3 revision order passed by learned Commissioner was passed beyond period of limitation. 2.3 Feeling aggrieved and dissatisfied with order passed by learned ITAT quashing and setting aside revisional order passed by learned Commissioner under Section 263 of Act and holding that order passed by learned Commissioner was beyond period of limitation prescribed under Section 263 (2) of Act, revenue appellant herein preferred appeal before High Court, raising following substantial question of law: "Whether, on facts and in circumstances of case, case, Tribunal had applied its mind and was right in holding that revision order of Commissioner of Income Tax under section 263 dated 26.3.2012 revising assessment order dated 31.12.2010 is barred by limitation provided under section 263(2) by assuming that last date for passing assessment order is 31.3.2012 and on ground that order was served on 29.11.2012?" 2.4 By impugned judgment and order, High Court has dismissed said appeal and has confirmed order passed by learned ITAT holding that order passed by learned Commissioner under Section 263 of Act was 4 barred by limitation. High Court held that date on which order was received by assessee respondent herein is relevant date for purpose of determining period of limitation under Section 263 (2) of Act. 2.5 Feeling aggrieved and dissatisfied with impugned judgment and order passed by High Court, revenue appellant herein has preferred present appeal. 3. Shri Vikramjit Banerjee, learned Additional Solicitor General (ASG) appearing on behalf of revenue appellant has vehemently submitted that High Court as well as learned ITAT both have misconstrued and misinterpreted provision of Section 263, more particularly sub section (2) of Section 263 of Act. It is submitted that High Court has erred in holding that revision order dated 26.03.2012 passed by Commissioner under Section 263 of Act was barred by period of limitation provided under Section 263 (2) of Act. 3.1 It is submitted that High Court has materially erred in holding that order passed under Section 263 is barred by limitation provided under Section 263 (2) on ground that order under Section 263 was served on assessee 5 respondent herein on 29.11.2012 which was after expiry of two years from end of financial year in which order was sought to be revised. 3.2 It is vehemently submitted by learned ASG that sub section (2) of Section 263 of Act provides that no order shall be made under sub section (1) of Section 263 after expiry of two years from end of concerned financial year and relevant date in present case to pass order under Section 263 would be 31.03.2012. It is submitted that in present case order in fact was passed on 26.03.2012 and in fact dispatched on 28.03.2012. It is submitted that therefore order passed by learned Commissioner under Section 263 was within period of limitation prescribed under Section 263 (2) of Act. 3.3 Shri R. Sivaraman, learned Advocate appearing on behalf of respondent assessee relying upon para 15 of counter affidavit has submitted that as such order passed by learned Commissioner under Section 263 of Act has been acted upon before it was set aside by learned ITAT and thereafter fresh assessment order has been passed by Assessing Officer. It is submitted that 6 therefore as such issue involved in present appeal has become academic. 4. We have heard learned counsel appearing on behalf of respective parties at length. Though it is case on behalf of respondent assessee that by now issue involved in present appeal has become academic, considering fact that question of law raised in present appeal is pure question of law and therefore we are inclined to decide said question of law. 4.1 short question of law which is posed for consideration before this court is, whether in facts and circumstances of case, High Court and learned ITAT are right in holding that order passed by learned Commissioner passed under Section 263 was barred by period of limitation provided under Section 263 (2) of Act? Whether High Court is right in holding that relevant date for purpose of considering period of limitation under Section 263(2) of IT Act would be date on which order passed under Section 263 by learned Commissioner is received by assessee? 7 4.2 While deciding aforesaid issues and question of law, Section 263 (2) of Income Tax Act, which is relevant for our consideration is required to be referred to, which reads as under: (2) No order shall be made under sub section (1) after expiry of two years from end of financial year in which order sought to be revised was passed. 4.3 On fair reading of sub section (2) of Section 263 it can be seen that as mandated by sub section (2) of Section 263 no order under Section 263 of Act shall be made after expiry of two years from end of financial year in which order sought to be revised was passed. Therefore word used is made and not order received by assessee. Even word dispatch is not mentioned in Section 263 (2). Therefore, once it is established that order under Section 263 was made/passed within period of two years from end of financial year in which order sought to be revised was passed, such order cannot be said to be beyond period of limitation prescribed under Section 263 (2) of Act. Receipt of order passed under Section 263 by assessee has no relevance for purpose 8 of counting period of limitation provided under Section 263 of Income Tax Act. In present case, order was made/passed by learned Commissioner on 26.03.2012 and according to department it was dispatched on 28.03.2012. relevant last date for purpose of passing order under Section 263 considering fact that assessment was for financial year 2008 09 would be 31.03.2012 and order might have been received as per case of assessee respondent herein on 29.11.2012. However as observed hereinabove, date on which order under Section 263 has been received by assessee is not relevant for purpose of calculating/considering period of limitation provided under Section 263 (2) of Act. Therefore High Court as such has misconstrued and has misinterpreted provision of sub section (2) of Section 263 of Act. If interpretation made by High Court and learned ITAT is accepted in that case it will be violating provision of Section 263 (2) of Act and to add something which is not there in section. As observed hereinabove, word used is made and not receipt of order . As per cardinal principle of law 9 provision of statue/act is to be read as it is and nothing is to be added or taken away from provision of statue. Therefore, High Court has erred in holding that order under Section 263 of Act passed by learned Commissioner was barred by period of limitation, as provided under sub section (2) of Section 263 of Act. 5. In view of above and for reasons stated above question of law framed is answered in favour of revenue appellant and against assessee respondent herein and it is held that order passed by learned Commissioner under Section 263 of Income Tax Act was within period of limitation prescribed under sub section (2) of Section 263 of Act. present appeal is allowed accordingly. No costs. J. (M. R. SHAH) J. (A. S. BOPANNA) New Delhi, October 07, 2021. 10 Commissioner of Income-tax, Chennai v. Mohammed Meeran Shahul Hameed