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TMI Blog2016 (2) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal of assessee is against the order of CIT(A), that he has erred in holding that the assessment is not barred by limitation u/s. 153(2A) of the Act. For this, assessee has raised following ground no.1: "1. (a) That on the facts and in the circumstances of the case, Ld. CIT(A) has erred in holding that the provisions of section 153(2A) of Income Tax Act, 1961 restricting time limit for reframing assessment are not attracted. (b) That on the facts and in the circumstances of the case, having admitted that the order of the Hon'ble Tribunal did not suggest any de novo assessment and the issue was restored to the A.O. for verification of certain facts, Ld. CIT(A) should have held the order as invalid for not following the directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the assessee and Revenue has not produced the relevant details regarding the aggregate amount transferred to reserve account for deduction under section 33AC till the assessment year under consideration, we keeping in view the facts and circumstances involved in this case and for the sake of transparency restore the matter back to the file of AO to decide the same afresh. We hereby clarify that it will be the onus of the assessee to produce relevant evidence and documents before the AO in support of its claim that the amount transferred till the financial year under consideration for the purpose of section 33AC does not exceed twice the aggregate of paid up share capital. We hold and direct accordingly and accept the ground raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect to the order of the Tribunal dated 08.12.2011 wherein it was observed at page 1, 1st para, 1st three lines reads as under: "In pursuance of the Hon'ble ITAT, 'A' bench, Kolkata's order in ITA No.98/Kol/2008 dated 28.07.2008, a notice u/s. 142(1) was issued to the assessee on 16.11.2010, requiring clarification on the details of Reserves & Surplus as on 31.03.2004....." Ld. Counsel for the assessee before us stated that notice u/s. 142(1) on the assessee to give effect to the order of the Tribunal was issued on 19.08.2011 and in term of section 153(2A) i.e. the time limitation for completion of assessment and reassessment has prescribed the time limit for framing assessment was only nine months in view of second pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005, the provisions of this sub-section shall have effect as if for the words "one year", the words "nine months"had been substituted:]" We find that recently a coordinate bench of this Tribunal Kolkata "A"Bench in the case of McNally Bharat Engineering Co. Ltd. Vs. DCIT in CO No. 12/Kol/2011, arising out of ITA No. 98/Kol/2011 for the AY 2002-03 dated 09.10.2015, exactly on identical proposition of law held as under: "6. A comparative study of sub-section (2A) of section 153 read with 2nd proviso thereto and sub-section (3) of section 153 reveals that an order of fresh assessment, inter alia, in pursuance of an order passed by the Tribunal under section 254, setting aside or cancelling an assessment, is required to be made at any time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken on a similar issue, which is in favour of the assessee. In one of such cases decided by the Agra Bench of this Tribunal in the case of Pooran Singh -vs.- ACIT [7 SOT 126], the appellate authority had not set aside the assessment completely but only two issues were sent to the Assessing Officer so that Assessing Officer could determine the income relating to those issues and thereby work out the assessed income of the assessee. In these facts and circumstances of the said case, which are similar to the facts of the present case, it was held by the Tribunal that the provisions of section 153(2A) would apply and the order passed by the Assessing Officer giving effect to the order of the appellate authority beyond the period prescribed in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the Tribunal dated 15.02.2008 beyond the period of nine months prescribed in section 153(2A) read with second proviso thereto from the end of the financial year in which the order of the Tribunal was received by the concerned Chief Commissioner or Commissioner is invalid being barred by limitation. Accordingly, we allow the Cross Objection filed by the assessee and cancel the order dated 31.12.2009 passed by the Assessing Officer." 6. In view of the above facts and the case law of coordinate bench, cited supra, we are of the view that no assessment is possible after the expiry of period of limitation, the provisions of section 153(2A) of the Act are absolute and they impose a fetter on income tax authorities to make a set-aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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