TMI Blog2014 (10) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act in the field in respect of which no provisions are made under Chapter XIV B - Section 153 (2A) of the Act is attracted to an order for fresh assessment to be passed under Chapter XIV B of the Act in pursuance of the order of the Section 250 of the Act. As decided in Assistant Commissioner of Income Tax & Anr. Versus M/s. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT OF INDIA] - the assessment order for the block period was passed by the assessing authority on 30.09.1999 - The appellate authority u/s 250 of the Act had set aside the order by order dated 24.10.2000 - The order was communicated on 15.01.2001 - The period prescribed u/s 153(2A) of the Act is before the expiry of one year from the end of financial year in which order under Section 250 of the Act is received by the Chief Commissioner or Commissioner as the case may be - The copy of the appellate authority was received on 15.01.2001, 31.03.2001 is the end of the financial year and 31.03.2002 is one year there from before which the fresh assessment order ought to have been passed - The fresh assessment order is passed on 28.03.2003, nearly one year after the expiry of the period of limitation - Therefore, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred an appeal to the tribunal, which allowed the appeal-in-part and granted relief to an extent of ₹ 50,25,000/- by deleting the said amount. It is against that order, the revenue is in this appeal. 3. Learned Counsel for the assessee raised preliminary objections to the effect that the assessment order passed by the assessing authority was clearly barred by law of limitation and the tribunal before whom the said ground was urged has declined to answer the said question on the ground that the scheme of framing assessment requires total co-operation and faith, which appears to be lacking and insofar as the assessee is concerned, may be the rigours of search proceedings had left the assessee with trying to gather his confidence along with professional advise sought for to explain the basic entries to be related inter se ending on a happy note. Therefore, they were of the view that the deletion of additions on merits, they refrain from commenting on various aspects leading to limitation and search material relied upon along with statement under Section 132 of the Act to establish undisclosed income. Accordingly, to the Tribunal it was purely academic and leading to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Ramesh Chand Soni reported in (2005) 194 CPR (Raj) 84 and submits that the order passed by the assessing authority cannot be said as barred by limitation. 7. Per contra, learned Counsel for the assessee submits that it is no doubt true that Chapter XIV B is a complete code in itself, however, a specific provision is provided under the said Chapter. But in the said chapter, if no specific provision is provided, then the provisions of the Act are made applicable expressly by Section 158BH. Though the said Chapter prescribes the time limit for completion of the block assessment by way of Section 158BE of the Act, there is no express provision in the said Chapter for framing an assessment when the assessment order made under the provisions is set aside under Section 250 of the Act. Therefore, by virtue of Section 158BH, Section 153(2A) is attracted and admittedly, the assessment order is not passed within the time prescribed therein, which is barred by law of limitation. Therefore, the question for consideration is, whether Section 153(2A) of the Act is applicable to an assessment order passed under Chapter XIV B of the Act or not? 8. Section 153 (2A) of the Act deals with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r , the words twenty-one months had been substituted:] [Provided also that where the order under section 254 is received by the Chief Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Commissioner on or after the 1st day of April, 2010, and during the course of the proceedings for the fresh assessment of total income, a reference under sub-section (1) of section 92CA- (i) is made before the 1st day of July, 2012, but an order under sub-section (3) of section 92CA has not been made before such date; or (ii) is made on or after the 1st day of July, 2012, the provisions of this sub-section shall, notwithstanding anything contained in the second proviso, have effect as if for the words one year , the words two years had been substituted.] 9. It starts with a non-obstante clause. It states that notwithstanding anything contained in sub-sections (1) [(1A), (1B)] and (2) , which makes it clear from the aforesaid provision that the period of limitation is prescribed for passing orders and the same has no application when an order for fresh assessment in pursuance of an order under Section 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racted to an assessment which has to be made under Chapter XIV B of the Act. In fact, in the aforesaid judgment of the Rajasthan High Court, at Para 19, it has been categorically stated that Section 158 BH permits to look at the other provisions of the Act in the field in respect of which no provisions are made under Chapter XIV B. Therefore, we are of the view that Section 153 (2A) of the Act is attracted to an order for fresh assessment to be passed under Chapter XIV B of the Act in pursuance of the order of the Section 250 of the Act. 10. The Supreme Court interpreting Section 158 BH of the Act, in the case of Assistant Commissioner Of Income-Tax Another vs. Hotel Blue Moon reported in 321 ITR page 362, held that Section 158 BH is an enabling provision, which makes all the provisions of the Act, save as otherwise provided, applicable for proceedings for block assessment. 11. In the instant case, the assessment order for the block period was passed by the assessing authority on 30.09.1999. The appellate authority under Section 250 of the Act had set aside the order by order dated 24.10.2000. The said order was communicated on 15.01.2001. The period prescribed under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
