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2015 (10) TMI 2025 - ITAT LUCKNOW

2015 (10) TMI 2025 - ITAT LUCKNOW - TMI - Taxation on capital gain - rectification of mistake - direction given by the Tribunal to the Assessing Officer to tax the capital gain in assessment year 2002-03 is not proper because the Tribunal could not have given such directions - Held that:- It is seen that it is specified in sub section (3) of section 153 that Sub Sections (1), (1A), (1B) and (2) shall not apply where the assessment, reassessment or recomputation is made as per clause (ii) of sub .....

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tion 153 can be invoked even where the reassessment is called for as per an order of any court in a proceeding otherwise than by way of appeal or reference under this Act. Hence, in our considered opinion, the limitation u/s 150 (2) is not applicable in respect of appeal effect order to be passed u/s 153. Hence, this objection also has no merit.

As per above discussion, we have seen that there is no merit in any of the contentions raised by the assessee in the Misc. Application. There .....

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pages 9 to 12, it is stated that some technical aspects, such as validity of reassessment proceedings and validity of notice u/s 143(2) etc. were either not decided in the impugned Tribunal order or were wrongly decided. On this aspect, we do not find any merit in this Misc. Application because these issues are of academic interest only because in the impugned Tribunal order, the Tribunal has followed the judgment of Hon ble Allahabad High Court in assessee s own case and it was held by the Trib .....

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e direction given by the Tribunal to the Assessing Officer to tax the capital gain in assessment year 2002-03 is not proper because the Tribunal could not have given such directions. 3. In this regard, we would like to observe that even if it is claimed that such consequential direction of the Tribunal is not proper, it cannot be said that it is an apparent mistake rectifiable u/s 254(2) and therefore, on this aspect also, we do not find any merit in the Misc. Application of the assessee. At thi .....

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on ble High Court. The direction of the tribunal to tax this income in A.Y. 2002 - 03 is a consequential direction arising out of relief allowed in the present year on this basis that capital gain is not taxable in the present year because the transfer of the asset did not take place in the present year because as per Hon ble High Court, the transfer took place in F. Y. 2001 - 02 relevant to A. Y. 2002 - 03. Hence, this direction is in line with this settled position of law that correct income s .....

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e Hon ble High Court. In our considered opinion, under these facts, the consequential direction given by the tribunal is not suffering from any apparent mistake. 4. In Para 16.1 of the Misc. Application, it has been contended that this direction of the Tribunal to the Assessing Officer to tax the capital gain in assessment year 2002-03 is illegal for the reason that the same is barred by limitation. 5. In this regard, we would like to observe that it is stated by the Tribunal in Para 14.1 of the .....

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sessments and reassessments. (1) No order of assessment shall be made under section 143 or section 144 at any time after the expiry of- (a) two years from the end of the assessment year in which the income was first assessable; or (b) one year from the end of the financial year in which a return or a revised return relating to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, is filed under sub-section (4) or subsection (5) of section 139, whichever is .....

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sment year] and during the course of the proceeding for the assessment of total income, a reference under sub-section (1) of section 92CA- (i) was made before the 1st day of June, 2007 but an order under sub-section (3) of that section has not been made before such date; or (ii) is made on or after the 1st day of June, 2007, the provisions of clause (a) shall, notwithstanding anything contained in the first proviso, have effect as if for the words two years , the words thirty-three months had be .....

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been substituted. (1A) No order of assessment shall be made under section 115WE or section 115WF at any time after the expiry of twenty-one months] from the end of the assessment year in which the fringe benefits were first assessable. (1B) No order of assessment or reassessment shall be made under section 115WG after the expiry of nine months] from the end of the financial year in which the notice under section 115WH was served. (2) No order of assessment, reassessment or recomputation shall be .....

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e the 1st day of April, 2011] the provisions of this sub-section shall have effect as if for the words one year , the words nine months had been substituted :] Provided also that where the notice under section 148 was served on or after the 1st day of April, 2006 but before the 1st day of April, 2010] and during the course of the proceedings for the assessment or reassessment or recomputation of total income, a reference under subsection (1) of section 92CA- (i) was made before the 1st day of Ju .....

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ssment or reassessment or recomputation of total income, a reference under sub-section (1) of section 92CA is made, 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. (2A) Notwithstanding anything contained [in sub-sections (1), (1A), (1B) and (2)], in relation to the assessment year commencing on the 1st day of April, 1971, and any subsequent assessment year, an .....

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rincipal Chief Commissioner or Chief Commissioner] or Principal Commissioner or Commissioner: Provided that where the order under section 250 or section 254 is received by the Principal Chief Commissioner or Chief Commissioner] or Principal Commissioner or Commissioner] or, as the case may be, the order under section 263 or section 264 is passed by the Principal Chief Commissioner or Chief Commissioner] or Principal Commissioner or Commissioner], on or after the 1st day of April, 1999, but befor .....

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provisions of this sub-section shall have effect as if for the words one year , the words nine months had been substituted : Provided also that where the order under section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Commissioner or Commissioner on or after the 1st day of April, 2006 but before the 1st day of April, 2010, and durin .....

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uted. Provided also that where the order under section 254 is received by the Principal Chief Commissioner or Chief Commissioner] or Principal Commissioner or Commissioner] or, as the case may be, the order under section 263 or section 264 is passed by the Principal Commissioner or Commissioner on or after the 1st day of April, 2010, and during the course of the proceeding for the fresh assessment of total income, a reference under sub-section (1) of section 92CA is made, the provisions of this .....

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nce of or to give effect to any finding or direction contained in an order, under sections 250, 254, 260, 262, 263 or 264 or in an order of any court in a proceeding otherwise than by way of appeal or reference under this Act; (iii) where, in the case of a firm, an assessment is made on a partner of the firm in consequence of an assessment made on the firm under section 147. (4) Notwithstanding anything contained in the foregoing provisions of this section, sub-section (2) of section 153A and su .....

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or in giving an opportunity to the assessee to be reheard under the proviso to section 129, or (ii) the period during which the assessment proceeding is stayed by an order or injunction of any court, or (iia) the period commencing from the date on which the Assessing Officer intimates the Central Government or the prescribed authority, the contravention of the provisions of clause (21) or clause (22B) or clause (23A) or clause (23B) or sub-clause (iv) or sub-clause (v) or sub-clause (vi) or sub- .....

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hich the assessee is required to furnish a report of such audit under that subsection; or (b) where such direction is challenged before a court, ending with the date on which the order setting aside such direction is received by the Principal Commissioner or Commissioner], or (iv) the period commencing from the date on which the Assessing Officer makes a reference to the Valuation Officer under sub-section (1) of section 142A and ending with the date on which the report of the Valuation Officer .....

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the date on which such application is made and ending with the date on which the order under sub-section (1) of section 245D is received by the Principal Commissioner or Commissioner] under subsection (2) of that section, or (vi) the period commencing from the date on which an application is made before the Authority for Advance Rulings under sub-section (1) of section 245Q and ending with the date on which the order rejecting the application is received by the Principal Commissioner or Commissi .....

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an authority competent under an agreement referred to in section 90 or section 90A and ending with the date on which the information requested is last received by the Principal Commissioner or Commissioner] or a period of one year, whichever is less, or; (ix) the period commencing from the date on which a reference for declaration of an arrangement to be an impermissible avoidance arrangement is received by the Principal Commissioner or Commissioner] under subsection (1) of section 144BA and end .....

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ing period shall be extended to sixty days and the aforesaid period of limitation shall be deemed to be extended accordingly: Provided further that where a proceeding before the Settlement Commission abates under section 245HA, the period of limitation available under this section to the Assessing Officer for making an order of assessment, reassessment or re-computation, as the case may be, shall, after the exclusion of the period under sub-section (4) of section 245HA, be not less than one year .....

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tal income of the assessee for an assessment year, then, an assessment of such income for another assessment year shall, for the purposes of section 150 and this section, be deemed to be one made in consequence of or to give effect to any finding or direction contained in the said order. Explanation 3 : Where, by an order referred to in clause (ii) of sub-section (3), any income is excluded from the total income of one person and held to be the income of another person, then, an assessment of su .....

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