TMI Blog2018 (12) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... any time beforethe expiry of one year from the end of the financial year in which the order u/s 250 or sec. 254 is received by the Chief Commissioner or Commissioner or, as the case may be, the order u/s 263 or sec. 264 is passed by the Chief Commissioner or Commissioner.” In the instant case, the Tribunal order dated 08.03.2007 was admittedly served on the Commissioner of Income-tax on 20.03.2007. Therefore, going by the dictum laid down in the case of Dr.R.P.Patel v. ACIT [2015 (3) TMI 1291 - KERALA HIGH COURT] the assessment ought to have been completed on or before 31.12.2007. Since the assessment order pursuant to the Tribunal order was completed only on 01.03.2010, we hold that the assessment was barred by limitation. - Decided i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fts. The relevant finding of the Tribunal, reads as follows:- 13. In this case, as per the facts on record, except the contention of the assessee in the form of Affidavit, nothing is on record to determine the nature of these receipts. We, therefore, consider it fit to restore this issue to the file of the A.O. for all the assessment years under appeal with a direction that he should adjudicate this issue afresh after giving a reasonable opportunity of being heard to the assessee as per the principles of natural justice. We are not expressing anything on merits and the AO can take his own independent decision. The AO should also consider the following decisions relied on by the ld.counsel in the light of evidence before him. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial year in which the order u/s 250 etc. is received. In the instant case, the original assessment was neither set aside nor cancelled by the Hon ble Tribunal, but only direction was to afford reasonable opportunity to the assessee of being heard and adjudicate the issue afresh as per principles of natural justice, for which the limited issue of genuineness of the claim of gifts / donations was restored to the file of the Assessing Officer. In other words, the Assessing Officer was allowed to take his own decision on merits and the Tribunal also made it abundantly clear that they are not expressing anything on merits. To facilitate such recourse, the Tribunal had set-aside the operation of the orders of the first Appellate Authority. Hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal memorandum of appeal. It was submitted that the issue of limitation was raised before the A.O. as well as the CIT(A). As regards the additional ground, the assessee has filed a brief written submission. The relevant portion of the same reads as follows:- 4. The order of the Hon'ble Bench dt.08-03-2007, if it is considered as received by the Commissioner of Income Tax on or before 31-03-2007, the assessments should have been completed before 31- 12-2007. In the event of receiving the order by the Commissioner of Income Tax between 01-04-2007 and 31-03-2008, the orders should have been passed on or before 31-12-2008. But reasonably we should expect that the order, under any circumstances is received before 31-03-2008, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal memorandum of appeal. Therefore, we admit the additional grounds raised and take up the same for adjudication. 11. The solitary issue that is raised in the additional grounds is whether the time limit prescribed u/s 133(2A) of the I.T.Act is applicable for the assessment i.e. completed on 01.03.2010, pursuant to the ITAT s order dated 08.03.2007. The Hon ble Kerala High Court in the case of Dr.R.P.Patel v. ACIT (supra) have held that even when one issue has been directed to be considered afresh, time limit prescribed u/s 153(2A) of the I.T.Act is attracted. The Hon ble High Court had followed the judgment of the Hon ble Punjab Haryana High Court in the case of Bharti Engineering Corporation v. Union of India and others [(2008) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. Such refund shall be made as expeditiously as possible and at any rate within a period of three months of the date of receipt of a copy of this judgment. 12. It was submitted by the learned AR that the judgment of the Kerala High Court in the case of Dr.R.P.Patel v. ACIT (supra) was accepted by the Department and no further appeal was preferred by the Revenue. The learned DR was unable to controvert the above assertion of the learned AR. Section 153A states Notwithstanding anything contained in sub-section (1), (1A), (1B) and (2), in relation to the AY commencing on the 1st day of April 1971, and any subsequent AY, an order of fresh assessment in pursuance of an order u/s 250, sec. 254, sec. 263, or sec.264, settin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
