TMI Blog2009 (12) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Asst. CIT v. Sushila Milk Specialities P. Ltd. in I. T. (SS) A. No. 100/Del/2007 and vide order dated October 30, 2009 [2010] 1 ITR (Trib) 639 (Delhi), the matter had been restored back to the files of the Assessing Officer for framing assessment afresh. The brief facts of the case are that block assessment proceedings under section 158BC in this case were annulled by the learned Commissioner of Income-tax (Appeals). Before the learned Commissioner of Income-tax (Appeals) the crux of the assessee's submission was as under : "In the instant case, it is submitted that the assessment under section 158BC of the Act framed by an order dated June 3, 2005 is barred by limitation within the meaning of the provision contained in section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however dismissed as per the judgment reported in Rajesh Kumar v. Deputy CIT [2005] 275 ITR 641. The assessee being aggrieved filed an SLP before the hon'ble Supreme Court. The hon'ble Supreme Court granted leave to the assessee and by an order dated November 1, 2006 Rajesh Kumar v. Deputy CIT reported in [2006] 287 ITR 91, allowed the appeal and held that the order under section 142(2A) dated December 7, 2004 was bad in law. In view of the judgment of the hon'ble Supreme Court, it is submitted, the impugned assessment order dated June 3, 2005 has become barred by limitation inasmuch as the extended period provided under the proviso to Explanation 1 to section 158BE(2) of the Act would not be available as the order directing audit under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the appellant, the order directing audit under section 142(2A) has been held to be illegal and without authority of the law. When as per the aforesaid decision by the hon'ble Supreme Court order directing audit under section 142(2A) has been held to be illegal then no additional time limit is available to pass the block assessment order. Considering such judicial position, the block assessment order passed on June 3, 2005 against which the present appeal has been filed, in my considered view, has become barred by limitation as per the provisions of section 158BE of the Income-tax Act, since extended period provided under the proviso to Explanation 1 to section 158BE(2) of the Income-tax Act would not be available to the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia (Firm) v. CIT [2008] 300 ITR 403. The Tribunal had concluded as under (page 654 of 1 ITR (Trib)) : "Applying the principle in the present case, we hold that even if direction for special audit under section 142(2A) without affording an opportunity of being heard was not correct, the Assessing Officer was not lacking the jurisdiction for framing assessment thereafter. The only requirement was to afford a reasonable opportunity while framing assessment also. Since the Tribunal in the case of Rajesh Kumar v. Deputy CIT [2009] 313 ITR (AT) 243 (Delhi) have upheld the validity of assessment but have remanded the matter back to the Assessing Officer which decision of the Tribunal has been approved by the jurisdictional High Court in the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court namely, Rajesh Kumar v. Deputy CIT [2006] 287 ITR 91 and Sahara India (Firm) v. CIT [2008] 300 ITR 403, the assessment is required to be set aside to the file of the Assessing Officer to pass a fresh assessment as held in the case of Rajesh Kumar v. Deputy CIT [2009] 313 ITR (AT) 243 (Delhi) by the Income-tax Appellate Tribunal in its order dated June 30, 2008 and do not hold the assessment as time barred as held in the case of Asst. CIT v. Rakesh Kumar. We, therefore, approve the view taken by the Tribunal in the case of Rajesh Kumar v. Deputy CIT [2009] 313 ITR (AT) 243 (Delhi) and do not approve the decision of the Tribunal in the case of Asst. CIT v. Rakesh Kumar. In view of the findings above, the learned Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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