TMI Blog2006 (5) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... ue a writ in the nature of mandamus thereby directing the respondents to allow the claim for the refund of Rs. 5,61,380/- along with interest for the Assessment Year 1989-90;" 2.The petitioner, which is a partnership firm carrying on the business of manufacturing and sale of diesel engines and spares filed its return of Income, for the assessment year 1989-90 declaring net assessable income at Rs. 4,55,289/-. Not satisfied with the return filed by the petitioner, the Assessing Officer issued notices to the petitioner under Section 143(2)/142(1) of the Income Tax Act, 1961 (for short 'the Act') and vide assessment order dated 31.3.1992 assessed the income of the petitioner at Rs. 17,45,390/. Aggrieved against the assessment order, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereby on the one hand the remand case was not decided by the Assessing Officer and on the other hand the petitioner was being deprived of his entitlement of refund of the tax paid on the ground that the remand case has not been decided. 5.The respondents had placed on record brief facts of the case under the Signatures of Deputy Commissioner of Income-tax, Phagwara Circle, Phagwara, wherein it is stated that after the issue of notice dated 5.2.2001 for decision of the remand case in terms of direction given by CIT (A), though the matter was fixed on two occasions namely 19.2.2001 and 14.3.2001, but no final order was passed. It has further been stated therein that after the petitioner submitted his representation to CIT-II, Jalandhar, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ChiefCommissioner 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 1 st day of April, 1999 but before the 1 st day of April, 2000, such an order of fresh assessment may be made at any time up to the 31 st day of March, 2002: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 152 (2A) of the Act, the fresh order could be passed by the AO by 31.3.2002 since the CIT (A) passing the order in financial year 2000-01 and one year thereafter would have expired on 31.3.2002. Though the proceedings were initiated in the case for fresh order, but admittedly no order was passed within the permitted period under Section 153 (2A) of the Act and even till date. Net result of the same is that now no order can possibly be passed because of bar of limitation prescribed under Section 153 (2A) of the Act. 9.The counsel for the Revenue relied upon the provisions of Section 240 proviso (a) of the Act to state that when an assessment is set aside or cancelled and an order of fresh assessment is directed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the provisions of the Act has already expired, still the provisions of Section 240 (a) of the Act would continue to apply. The application of Section 240 (a) of the Act is only upto the extent that either the order is passed by the competent authority as per the direction or the period of limitation prescribed for passing such order, whichever is earlier and not thereafter. 11.Net result of our above discussions is that in the absence of any order passed within the period prescribed for the purpose under Section 153 (2A) of the Act, the Revenue has no authority to retain the tax which is in excess to any amount determined to be payable against the assessee. Such a retention would certainly be hit by Articles 265 of the Constitution o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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