TMI Blog2011 (2) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... : Ms. Prem Lata Bansal, Sr. Advocate with Mr.Deepak Anand, Advocate A.K. Sikri, J. (ORAL) 1. Before coming to the nature of the impugned order passed by the Income Tax Appellate Tribunal (hereinafter referred to as the Tribunal ), it would be apposite to take note of the backdrop facts for the reason that the impugned order passed is in the second round of litigation and the orders which were passed in the first round of litigation have direct bearing on the issue. 2. The respondent had filed the income tax return for the assessment year 1999-2000 declaring income of Rs.2.31 crores. The assessment was completed under Section 143(3) of the Income Tax Act (hereinafter referred to as the Act ) at an income of R.3.56 crores. Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal preferred by the assesses had become infructuous. In a sense, the Tribunal was of the opinion that after a lapse of so much time, Assessing Officer was not competent to pass any consequential order. Though the appeal was disposed of as infructuous, which was preferred by the assessee, the Revenue also understood the implication of that order, namely, it may prevent the Assessing Officer from passing the consequential order at the stage, therefore, Revenue felt aggrieved by that order of the Tribunal preferred an appeal before this Court, i.e., ITA No.1038 of 2008. This appeal was dismissed vide detailed order dated 10.09.2008. We have summoned the file of that appeal and find that following questions of law were raised by the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner is empowered to call for and examine the record of any proceeding under the Act and if he considers that any order passed by an Assessing Officer is erroneous in so far as it is prejudicial to the interest of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to make such enquiry as he deems fit, pass such order thereon as the circumstances of the case justify , including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. In view of this provision it is clear that the Commissioner may pass any order as the circumstances of the case justify. In the present case we find that the Commissioner while passing the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not mean that the Assessing Officer can wait for indefinite period before passing the consequential order. 5. The Assessing Officer, however, passed the consequential order on 2nd September, 2008 giving effect to the order passed by the Commissioner under Section 263 of the Act. This order was passed much after the order passed by the Tribunal but a few days before the aforesaid order dated 10.09.2008 in ITA No.1038/2008. 6. Against the order of the Assessing Officer passed on 2nd September, 2008, the assessee preferred appeal in which assessee was successful as CIT(Appeal) reversed the aforesaid order holding that the Assessing Officer was precluded from passing that order in view of the orders passed by the Tribunal and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Likewise, the second contention would not have any bearing on the outcome of the issue. The aforesaid observation that more than reasonable time had expired which can be allowed to the Assessing Officer to pass the consequential order would still prevail. As noted above, the Tribunal had held the appeal to be infructuous on 23.11.2007 taking note of the fact that by that date no consequential order had been passed. It is this order, which was upheld by this Court and the period of three years and eight months, which is mentioned in the order is calculated by order dated 23.11.2007 because order of the CIT (Appeal) under Section 263 of the Act was passed on 25.03.2004. Otherwise by that time, the High Court passed the order, i.e., on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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