TMI Blog2018 (5) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... ice under section 148, itself is not satisfied, therefore, issuance of notice under section 148 is directly hit by the provisions of section 149 limitation. We are, therefore, of the considered view that since issuance of 148 notice is barred by limitation, serving of notice itself is invalid and bad in law and, therefore, any consequent assessment or re-assessment is obviously null and void. Direct quashing of the re-assessment proceedings. - Decided in favour of assessee. - ITA No.320/LKW/2018 - - - Dated:- 3-5-2018 - SHRI. T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY,JUDICIAL MEMBER For The Appellant : Shri Rakesh Garg, Advocate For The Respondent : Smt. Neelam Agrawal, D.R. ORDER PER PA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am of the considered view that since .the property in question stood transferred in the F.Y. 2004-05, and not in A,Y. 2008-09, there arises no liability for capital gains tax during the year under consideration. However, the AO may consider the computation of Capital Gains in A. Y. 2005-06 . 4. Against the order of CIT(A), Department filed an appeal before the ITAT. The ITAT had observed as under:- Having taking into account all these facts, the Ld. CIT(A) has taken a view that the capital gain does not arise in the impugned assessment year, as it arise in financial year 2004-05, relevant to the assessment year 2005-06 and the Assessing Officer may consider computation of capital gain in that assessment year. Since it has been e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49 of the Act reveals that notice could have been issued in time within six years from the end of the assessment year i.e. till 31/03/2012. The ld. A.R. of the assessee further stated that the embargo can be done away with section 150(1) if there is any finding or direction by an authority as stated therein. The ld. A.R. of the assessee submitted that there was no such finding or direction and in the absence of that embargo, section 149 of the Act is applicable in the case of the assessee and within 31/3/2012 at the maximum notice under section 148 could have been issued, but here in this case assessment order itself was passed on 28/2/2013. Similarly, ITAT order was passed on 5/6/2015 and the order of the Hon'ble High Court was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning of finding or direction . If in this case of the assessee, the basis on which notice under section 148 issued pertains to any finding or direction, then section 150(1) will apply or else embargo provided under section 149 of the Act will be applicable. 10. In the case of Rajinder Nath vs. CIT [1979] 2 Taxman 204 (SC), the Hon'ble Apex Court has clearly brought out and discussed the expression of finding and direction wherein the Hon'ble Apex Court has observed as under:- The expressions finding and direction in section 153(3) are limited in meaning. A finding given in an appeal, revision or reference arising out of an assessment must be a finding necessary for the disposal of the particular case, that is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating the same. In the case of the assessee, the order passed by the ld. CIT(A) dated 28/2/2013 simply says that since the issue before him relates to assessment year 2008-09, there is no liability for capital gain tax during that year. Thereafter, the ld. CIT(A) further states that the Assessing Officer may consider computation of capital gains in assessment year 2005-06. Had the word may been used as shall , it would have a specific direction or finding. With the word may it is an observation, a plausible view of the ld. CIT(A). Having said so, we find that the assessment year ends on 31/3/2006 and as per section 149, within six years i.e. maximum within 31/3/2012 notice under section 148 could have been issued. But in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which had already been concluded and attained finality. The amendment to sub-section (1) of Section 150 is not expressed to be retrospective and, therefore, has to be held as only prospective. The amendment made to sub-section (1) of Section 150 which intends to lift embargo of period of limitation under Section 149 to enable Authorities to reopen assessments not only on the basis of Orders passed in proceedings under the I.T.Act but also on Order of a Court in any proceedings under any law has to be applied prospectively. Therefore, even as per rule, strict construction and limitation of section 149 applies until and unless ingredients of section 150(1) is fulfilled. In the case before us, the ingredients of section 150(1), which the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
