TMI Blog2015 (3) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... a direction issued by the appellate forum. In the present case, as already found above the direction was to consider the issue afresh. Therefore, Section 153(2A) of the Act is attracted. In view of the above, this is a case in which the Assessing Officer ought to have passed a consequential order within the time limit stipulated. Since no such order was passed the petitioner is entitled to succeed. In view of the above findings the writ petition is allowed. It is held that in so far as the issue that was remitted to the respondent Assessing Officer for fresh consideration, the time bar contained in Section 153(2A) of the Act operates. The petitioner shall therefore be entitled to the refund sought for, in accordance with law. It is made clear that on all other aspects the assessment order is final and binding on the assessee. - WP(C) No. 29193 of 2008 (A) - - - Dated:- 9-3-2015 - K. Surendra Mohan, J. For the Petitioner : Ramesh Cherian John For the Respondent : Jose Joseph, SC, For Income Tax JUDGMENT K. Surendra Mohan, J. The petitioner has filed this writ petition challenging Ext.P16 order of the respondent by which, an application for refund of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same was made by the petitioner. Since no consequential order was passed within the time limit stipulated by the provision of law, it is contended that, further action in the matter is barred. Therefore, the petitioner seeks a declaration to the said effect and also a direction that he is entitled to refund of the excess tax paid. The counsel places reliance on a number of decisions in support of his contentions. 6. Adv.Jose Joseph appears for the respondent. According to the learned counsel, this is not a case in which sub section 2A of Section 153 of the Act applies. The said provision applies only in a case where an assessment is set aside and a fresh assessment is directed to be made. In the present case, according to the learned counsel in the first place the assessment order has not been set aside. Secondly, no fresh assessment has been directed to be made. What has been directed is only to consider one issue in the assessment order. It is pointed out by the counsel that there were a number of issues in the assessment order. All of them have been sustained. The Revenue also had objections to the manner in which the Appellate Authority had granted relief to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee that there had been some mistakes in the inventory listed at the time of search. It has been found by the Tribunal that the contentions of the assessee were brushed aside by the Commissioner of Income Tax (Appeals) for the only reason that the same was prepared with the assistance of the assessee's employees. Therefore, the matter was directed to be decided afresh, after giving an effective opportunity of being heard to the assessee and also after considering his contentions. The words to decide the issue afresh clearly shows that, the matter was remitted to the Assessing Authority for fresh consideration. The assessee was directed to be given a fresh opportunity of being heard and his contentions were directed to be considered. In the next paragraph the Appellate Authority has made the following observations:- Since this issue is restored to the Assessing Officer, the Assessing Officer can take care of the grounds raised by the revenue before the Tribunal in the Cross Objection. Thus, the issue in the Cross Objection in this regard is also restored to the Assessing Officer. Thus, the grounds raised by the Revenue before the Tribunal was also restored to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of this sub-section shall have effect as if for the words one year , the words nine months had been substituted:] It is clear from the second proviso to the above provision that the time limit within which the consequential order ought to have been passed is nine months from the date of receipt of a copy of the order. Ext.P5 order is dated 24.1.2007. The respondent has in Ext.P4 stated that Ext.P5 order was received by the said authority on 22.2.2007. Therefore, as per sub section (2A) of Section 153 of the Act the order had to be passed before 22.11.2007. As already noticed above, in the present case no such order was passed by the respondent. 10. According to the counsel for the petitioner, even where an Appellate Order has not stated that the assessment order has been set aside the time limit stipulated would apply. The counsel places reliance on the decision in Instruments and Control Co. v. Chief Commissioner of Income Tax and others [(2012)349 ITR 571 (Guj) (DB)]. In the said case, the petitioner had prayed for the refund of an amount that he had paid as tax, in similar circumstances. In the said case also the order of assessment had not been set aside in exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Textile P.Ltd. [(2008)300 ITR 176 (Delhi). The reasoning of the Court is contained in the following passages:- It was contended by learned counsel for the Revenue that the order passed by the Commissioner of Income Tax (Appeals) did not set aside the assessment order and, therefore, the provisions of Section 153(2A) would not be applicable. We are not at all in agreement with learned counsel for the Revenue. The operative words in Section 153(2A) of the Act are an order . . . . setting aside or cancelling an assessment . We have reproduced the operative portion of the order passed by the Commissioner of Income-tax (Appeals) and although that portion does not specifically say that the order of the Assessing Officer has been set aside or cancelled, but since ground No:2 of the appeal filed by the assessee was allowed, by necessary implication, the assessment order was set aside to that extent. The Commissioner of Income -tax (Appeals) had made it clear in his order that the Assessing Officer should have granted one more opportunity to the appellant on proposed additions and in view thereof, it was held that it would be in the interest of justice to restore the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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