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2006 (12) TMI 104 - HC - Income TaxTime limit for completion of assessment and reassessment u/s 153 - Fresh Order passed in remand proceedings - HELD THAT:- From the aspect of law which has engaged our attention, we are of the view that section 153(2A) is not attracted in the facts of the present case; no period of limitation is prescribed as per the provisions of section 153(3)(ii). It is trite that Parliament is continuously concerned with the evils or undesirability of the proverbial sword hanging over the head of an assessee. Parliament has, therefore, set down the parameters within which an assessment must be completed, and over the years has shortened the span of time in this regard. It has, however, carved out an exception to the rule where a specific, limited or restricted direction is passed by an appellate authority which is of the opinion that it would not be possible to decide the appeal before it without a clarification on this point. The appellate authority has also the power to set aside the assessment order and direct a de novo enquiry, in which case every aspect, computation and dimension is open for consideration. This partakes of the nature of an assessment which is akin to the original assessment and, therefore, the period of limitation applicable to the original assessment must apply to the fresh assessment. It is manifestly clear that in substance the entire assessment had not been set aside. The assessee's contention was that section 40A(3) had not been violated in its spirit since no expenditure exceeding rupees twenty thousand had been incurred in cash; these were incurred by effecting entries in the books of account and, hence, were as undisputable as payments made by account payee cheques or account payee bank draft. It was only on this restricted aspect of the assessment that the Tribunal had remanded the case to the Assessing Officer. The entire assessment exercise, therefore, had not been undertaken de novo, thereby rendering section 153(2A) of the Income-tax Act inapplicable to the case. We conclude by holding that a writ petition under articles 226 and 227 of the Constitution is always maintainable if the High Courts find that any authority is acting contrary to the powers bestowed upon it. Writ petitions, therefore, cannot be dismissed per se. The objection on this score cannot be appreciated; the Revenue would be justified in contending that in the facts of the case invoking the extraordinary jurisdiction of this court was not called for. Considerable time of this court has been needlessly spent on adjudicating on this preliminary objection. However, we dismiss the writ petitions as meritless since, in the facts and circumstances of the case, it cannot be argued that section 153(2A) is attracted and constitutes an absolute bar on assessment proceedings. This is obviously the manner in which all the authorised representatives of the petitioners understood the law since they chose to address the Assessing Officer on the merits of the case. Writ petitions are dismissed.
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