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TMI Blog2016 (3) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... IT v. Green World Corporation (2009) 314 ITR 81? (2) In the facts and circumstances of the case, when admittedly, the assessment for the assessment year 2001-02 was not subject matter of appeal before this Tribunal, can the observation, if any, made by the Tribunal, be considered as finding/direction to assess the income for the assessment year 2001-02 in view of the decision of this Tribunal in Sun Metal Factor (I) (P.) Ltd. v. ACIT (2010) 124 ITD 14, especially when this Bench of the Tribunal in Sriram Capital Ltd. v. DCIT in I.T.A. Nos.512 & 513/Mds/2015 dated 26.06.2015 (the very same Ld. Accountant Member is a party/author) found that the Appellate authority cannot travel beyond the assessment year in appeal and expunge the directions (to refer p.63 & 64 at para 19.3 of the Tribunal order in I.T.A. Nos.512 & 513/Mds/2015 dated 26.06.2015)? (3) In the facts and circumstances of the case, whether the reopening made under Section 147 of the Act and consequent order of assessment are barred by limitation? 2. On the other hand, the learned Accountant Member, formulated the following three questions while referring the matter to the Hon'ble President u/s 255(4) of the Act: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder on the same date. The assessee offered to tax the capital gains thereon in the assessment years 2003-04 and 2004-05, but at a later stage, it was contended that no transfer took place in the respective assessment years and hence, it is not assessable to tax on capital gains in assessment years 2003-04 and 2004-05. The ITAT, in its order dated 31.5.2010 (I.T.A.Nos.327 & 328/ Mds/ 2010), while disposing of the appeals for assessment years 2003-04 and 2004-05, observed that the capital gains, arising out of transfer of the property, cannot be taxed in assessment years 2003-04 and 2004-05. Relevant observation of the Tribunal, as extracted in para 4.4 of the order passed by the learned Accountant Member, is extracted below for immediate reference: "Having observed the fact that the transfer of the asset has already taken place in the year 2000, capital gains cannot be taxed in the AY 2003-04 and 2004-05." 7. Based on the observation made by the ITAT, the Assessing Officer sought to invoke the provisions of sec. 148, r.w.s 150 of the Act, for the assessment year 2001-02 and accordingly, issued a notice on 10.6.2011. The case of the assessee that the proceedings for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that sec. 149 of the Act provides for maximum period of six years from the end of the relevant assessment year in case the income chargeable to tax exceeds Rs. 1 lakh. By applying this formula, the limitation expired on 31.3.2008, whereas the Tribunal passed the order on 31.5.2010 in which event the Assessing Officer cannot make any addition on the basis of a later order of the Tribunal by invoking the provisions of section 150(1) of the Act. 9. He also referred to the judgment of the Apex Court in the case of K.M.Sharma (supra) to highlight that sec. 150(2) of the Act puts an embargo on reopening of assessments which have attained finality on expiry of period of limitation and in the light of the binding judgment of the Apex Court and the facts of this case, the Assessing Officer is not justified in reopening the assessment by issuing notice u/s 148 r.w.s 150 of the Act. He also referred to various judgments of High Courts to highlight that either they are not directly applicable or rendered without taking into consideration the binding judgment of the Apex Court in the case of K.M.Sharma (supra). 10. He also referred to the judgment of the Apex Court in the case of CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced accordingly. 14. The learned Counsel appearing for the assessee submitted that apart from the two judgments of the Apex Court cited by the learned Judicial Member, the issue is squarely covered by the unreported judgment of the Hon'ble Madras High Court in the case of M/s Goldmine Investments in Tax Case (Appeal) No.215 of 2008 dated 29.11.2013, wherein on identical circumstances, the Hon'ble Court observed that even if it is treated as a finding or direction, assessment cannot be reopened beyond the period of limitation. He has referred to various other decisions/judgments to submit that even if no time limit is prescribed (as assumed by the learned AM), still a reasonable time frame has to be assumed, as otherwise, the Assessing Officer will get unlimited time to reopen the assessment at his own will which is not permitted in law. In this regard, he relied upon the decision of ITAT, Hyderabad, in the case of S.Sankara Reddy vs. Assessing Officer (2005) 92 ITD 84. 15. In the instant case, the period of limitation expired in 2008 whereas the Tribunal has passed an order, while disposing of the appeals for assessment years 2003-04 and 2004-05, in 2010, by which d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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