TMI Blog2016 (2) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of section 153(2A) of the Act. In other words, if a matter falls u/s. 153(2A) of the Act i.e. if the Tribunal has set aside or cancelled the assessment, then the fresh order by the AO of assessment shall be passed within the period as prescribed u/s. 153(2A) of the Act. Here, in the present case, assessee's case clearly falls under the 2 nd proviso to section 153(2A) of the Act. Therefore, in the present case, framing of order of assessment by the AO, of set aside assessment after expiry of limitation in terms of section 153(2A) of the Act is invalid. This ground of assessee's appeal on limitation is allowed. - Decided in favour of assessee. - ITA No. 761/Kol/2013 - - - Dated:- 20-1-2016 - Mahavir Singh, JM And M. Balaganesh, AM For the Appellant : Shri Manish Tiwari, FCA For the Respondent : Shri D Lahiri, JCIT, DR ORDER Per Shri Mahavir Singh, JM This appeal by assessee is arising out of order of CIT(A), Central-1, Kolkata in Appeal No. 197/CC-III/CIT(A)C-1/11-12 dated 21.01.2013. Assessment was framed by JCIT(OSD), Central Circle-III, Kolkata u/s. 254/143(3) u/s. 263/143(3) of the Income tax Act, 1961 (hereinafter referred to as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 revenue for statistical purposes. 4. The AO while giving appeal effect, framed assessment u/s. 254/143(3) also u/s. 263/143(3) of the Act vide dated 08.12.2011 and disallowed the deduction u/s. 33AC of the Act again. Aggrieved, assessee came in appeal before CIT(A), who also confirmed the issue of limitation by observing in para 3 as under: 3. In ground no. 1, appellant has contested the legal validity of the order u/s. 254/251/143(3) passed by the AO on 08.12.2011. The Ld. AR has contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 250 or 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 Chief Commissioner or Commissioner: Provided that where the order under section 250 or 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 Chief Commissioner or Commissioner, on or after the 1st day of April, 1999 but before the 1st day of April, 2000, such an order of fresh assessment may be made at any time up to the 31st day of March, 2002:] 93[Provided further 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, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 sub-section 153(2A) was barred by limitation. A similar issue had again arose in the case of Standard Meters Mfg. Co. -vs.- Addl. CIT (ITA No. 1665/PN/2007 dated 29.11.2011) cited by the ld. counsel for the assessee and it was held by the Pune Bench of this Tribunal that the point of distinction between section 153(3) and 153(2A) is the fact that provisions of section 153(3) are to operate only in a situation where assessment, reassessment, or re-computation is necessary to give effect to any finding or direction contained in an appellate order. In the said case, the Tribunal vide its earlier order dated 28.09.2003 had not given any finding or direction so as to trigger the provisions of section 153(3) of the Act and only one issue was set aside and restored by the Tribunal to the file of the Assessing Officer for consideration afresh in accordance with law. In these facts and circumstances, it was held by the Tribunal t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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