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TMI Blog2012 (2) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid question. 4. On 16th December, 2003, search and seizure operation under Section 132 of the Act was conducted in the case of the respondent-assessee. On 30th November, 2004, notice under Section 153A of the Act in respect of the four assessment years was issued to the respondent assessee to file their returns. On 1st January, 2005, the respondent assessee filed their returns of income. 5. On 22nd March, 2006, the Assessing Officer passed an order under Section 142(2A) of the Act directing special audit. This order was made subject matter of challenge by the respondent assessee in W.P. (C) No. 4954/2006. By order dated 31st March, 2006, the High Court was pleased to stay the assessment proceedings. This writ petition was disposed of vide order dated 18th December, 2006, which for the sake of convenience is extracted below:- "18.12.2006 Mr. R.D. Jolly, learned Standing Counsel for the Revenue states that the decision in Rajesh Kumar v. Deputy v. Deputy Commissioner 2006 186 ITR (S.C.) has been referred to a larger bench of the Hon'ble Supreme Court. Nonetheless, he stated that in view of the ratio laid down in Rajesh Kumar, the impugned order dated 22.3.2006 may be set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent assessee has submitted that the report was not filed by the Special Auditor before the Assessing Officer. For the purpose of the present appeal, we only note and record that the tribunal has proceeded on the basis that the report was furnished. Secondly, the Explanation to Section 153B(1) stipulates that the period commencing from the day on which the Assessing Officer directs the assessee to get the accounts audited under Section 142(2A) and day on which the special auditor is required to furnish the report, is to be excluded. Submission of report is not relevant for the exclusion under the Explanation to Section 153B(1) of the Act. 8. The Assessing Officer thereafter passed the assessment order on 29th June, 2007. 9. By the impugned order, the tribunal has held that the assessment order passed on 29th June, 2007 was barred by limitation as per Section 153B of the Act. The tribunal has relied upon the decision of the Supreme Court in the case of Hope Textile Limited and Another versus Union of India and others, (1994) 205 ITR 508(SC). The reasoning given by the tribunal in the impugned order reads as under:- "10. If we read the decision of Hon'ble High Court of Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing contained in Section 153, the Assessing Officer shall make an order of assessment or reassessment,- (a) in respect of each assessment year falling within six assessment years referred to in clause (b) of [sub-section (1) of Section 153-A], within a period of two years from the end of the financial year in which the last of the authorisations for search under Section 132 or for requisition under Section 132-A was executed; (b) in respect of the assessment year relevant to the previous year in which search is conducted under Section 132 or requisition is made under Section 132-A, within a period of two years from the end of the financial year in which the last of the authorisations for search under Section 132 or for requisition under Section 132-A was executed: Provided that in case of other person referred to in Section 153-C, the period of limitation for making the assessment or reassessment shall be the period as referred to in clause (a) or clause (b) of this sub-section or one year from the end of the financial year in which books of account or documents or assets seized or requisitioned are handed over under Section 153-C to the Assessing Officer having jurisdiction over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the date on which an application is made before the Authority for Advance Rulings under sub-section (1) of Section 245-Q and ending with the date on which the advance ruling pronounced by it is received by the Commissioner under sub-section (7) of Section 245-R, (vii) the period commencing from the date of annulment of a proceeding or order of assessment or reassessment referred to in sub-section (2) of Section 153-A till the date of the receipt of the order setting aside the order of such annulment, by the Commissioner, shall be excluded: Provided that where immediately after the exclusion of the aforesaid period, the period of limitation referred to in clause (a) or clause (b) of this sub-section available to the Assessing Officer for making an order of assessment or reassessment, as the case may be, is less than sixty days, such remaining period shall be extended to sixty days and the aforesaid period of limitation shall be deemed to be extended accordingly." 11. As per Section 153B(1)(a) an assessment under Section 153A is required to be completed within a period of two years from the end of the financial year in which the last of the authorizations of search under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Explanation to Section 153B(1) again became applicable as after excluding the period of special audit, the period available to the Assessing Officer was less than 60 days. 15. The contention of the respondent assessee is that the Assessing Officer was not entitled to period of 60 days in terms of the proviso to the Explanation to Section 153B(1) as in the present case the Assessing Officer had already availed the period of 60 days in view of the stay order passed by the court. He has laid emphasis on the expression "in clause (a) or clause (b) of this Section" used in the proviso and submits that the Assessing Officer is entitled to benefit of 60 days once, either in case of stay order or if there is a Special Audit. He cannot take advantage or benefit of 60 days twice, when there is a stay order and again when there is a special audit in the same proceedings. 16. It is not possible to agree with the contention of the respondent assessee. The following dates, which have been stated above, may again be noted:- (i) Date of limitation for completing assessment under Section 153A in normal course was 31st March, 2006. (ii) On 22nd March, 2006 an order under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the assessee before the Supreme Court was that by virtue of clause (ii) sub-section 3 to Section 153 of the Act, the High Court should have directed the Assessing Officer to pass the reassessment order pursuant to the reassessment notice notwithstanding the expiry of period prescribed in sub-section 2 to Section 153. It is apparent that the Assessing Officer had not passed a reassessment order and in that context the Supreme Court observed that the courts cannot issue a direction to the authority under the Act, to ignore the limitation period as the Assessing Officer was not passing an order in the reassessment proceedings and had allowed the limitation period to lapse. In the present case, we have not given any direction to the authorities contrary to the period prescribed under Section 153B. We have interpreted Section 153B and accordingly computed the period of limitation stipulated therein. We have applied the proviso to Section 153B, which is applicable. 20. In view of the aforesaid discussion, the question of law mentioned above is answered in favour of the Revenue and against the respondent assessee. The tribunal will now hear the appeals on merits. The parti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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