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2021 (6) TMI 984 - AT - Income TaxRevision u/s 263 - period of limitation - case of the assessee was selected for limited scrutiny under CASS for specific issues viz. (i) contract receipts/fees mismatch; (ii) sundry creditors; and (iii) sales turnover mismatch - as submitted by assesee Pr. CIT had blatantly traversed beyond the limited scope of jurisdiction vested with him u/s 263 - HELD THAT:- As in the case before us the Pr. CIT had directed the A.O to frame a de novo assessment, therefore, the ‘first proviso‘ to sub-section (5) of Sec. 153 and the extension therein contemplated would not be applicable. As such, in the case before us the de novo assessment as directed by the Pr. CIT vide his order passed u/s 263, dated 31.03.2021, without any choice, has to be framed by the A.O within a period of twelve months from the end of the financial year in which the order u/s 263 was passed by the Pr. CIT. We find, that the legislature in all its wisdom had expressly vide ‘Explanation 1‘ to Sec. 153 of the Act carved out certain circumstances wherein the period involved is to be excluded for computing the period of limitation. Although, we find, that as per clause (ii) of ―Explanation 1’ to Sec. 153 of the Act, the period during which the assessment proceedings are stayed by an order or injunction of any court, the period therein involved is to be excluded for the purpose of computing the limitation for framing the assessment, reassessment and re-computation as envisaged in the said statutory provision, however, no such exclusion has been carved out by the legislature in all its wisdom in a case where the assessment proceedings are stayed by an order passed by the Tribunal. Accordingly, it is in the backdrop of the aforesaid mandate of law that we shall herein deal with the request of the assessee for restraining the A.O from framing the de novo assessment in pursuance to the order passed by the Pr. CIT u/s 263, dated 31.03.2021. Adverting to the claim of the assessee that it has a good case on merits, without expressing any opinion, we prima facie find substantial force in the same, for the reason, that the contention of the assesee is supported by the judgment of India Advantage Fund–VII [2017 (2) TMI 722 - KARNATAKA HIGH COURT] wherein it was observed that once the trust deed provided that benefits amongst the beneficiaries were to be shared proportionate to their investments, then, the shares of the beneficiaries were to be held as determinate. We remain conscious of the fact that circumscribed by the prescribed time limitation for framing of an assessment pursuant to an order passed by the Pr. CIT u/s 263 of the Act, there is an innate limitation on staying of the assessment proceedings, but then, at the same time we cannot also remain oblivious of the fact that in case the aforesaid request of the assessee is rejected at the threshold, then, the same may result to multiplicity of litigation which could have been otherwise avoided. We, thus, adopting a cautious but not a pedantic approach, though, refrain from restraining the A.O from proceeding with the assessment proceedings, however, at the same time, in all fairness herein direct him not to pass the assessment order giving effect to the order passed by the Pr. CIT u/s 263 of the Act, dated 31.03.2021 for a period of three months from the date of this order or till the disposal of the appeal filed by the assessee before us i.e against the order passed by the Pr. CIT u/s 263, dated 31.03.2021, whichever is earlier. Application filed by the assessee is allowed
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