TMI Blog2019 (8) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with section 149(1)(b), if four years, but not more than six years have elapsed from the end of the relevant assessment year, and if the income chargeable to tax which has escaped assessment amounts to one lakh rupees or more for that year, notice u/s 148 for the relevant assessment year shall be issued. In such a case, a notice u/s 148 can be issued upto a maximum period of six years from the end of the relevant assessment year. In the present case, the impugned order was passed on 2/5/2019. The assessment year involved is assessment year 2008-09. In accordance with the provisions of section 149(1)(b) of the Act, notice u/s 148 of the Act could have issued by the end of assessment year 2015-16. This period had already elapsed when the impugned order came to be passed. Therefore, the law not permitting initiation of proceedings u/s 147 when the order under appeal was passed, the direction of the ld. CIT(A) is not in accordance with law. It is a non est direction. An appellate authority cannot confer jurisdiction which the A.O does not have, e.g., as in the case of an assessment being barred by limitation. This has been held by the Hon'ble Gauhati High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' under section 150(1) of the Income ax A4, 1961 and held as under: 14. in view of Section 150(2) of the Act, the provisions of sub section (1) of Section 150 of the Act is not applicable in respect of the assessment year in which the assessment, reassessment or recomputation could not have been made at the time of order, which was subject matter of appeal passed by reason of any other provisions limiting the time within which the action for reassessment or recomputation should be taken. Th. e provision of Section 149 of the Act provides that notice under section 148 can be issued within the maximum period of six years from the end of the relevant assessment year in case where the income chargeable to tax exceeds ₹ 1 lakh. in the case before us, we find that the relevant assessment years are 2004-05, 2005-06 and 2006-07 for which direction u/s 150(1) have been issued Therefore, for the purpose of issue of notice u/s 148, the period of6 years from the end of relevant assessment year i.e. 2004-05, 2005-06 and 2006-07 expires on 31.03.2010, 31.03.2011 and 31.03.2012 respectively, whereas the id CIT(A) has passed the appeal order on 22.03.2016 Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion in respect of provisions of Section 150(1) and (2) of the Act and relying on various judicial pronouncements as relied on by the ld. Authorized Representative of the assessee as well as discussed as above by us and the decision of Jurisdictional High Court in the case of Computer Science Corporation India (P) Limited (supra), we are of the considered opinion that the directions issued by the ld. CIT(A) u/s 150(1) of the Act for the assessment years 2004-05 to 2006-07 are barred by limitation legally and not permissible considering the facts of the present case. Accordingly, the same are directed to be expunged and deleted. That in para 5.5 of the impugned appellate order, without adjudicating the specific ground(s) raised by the appellant and without hearing the appellant on issues relating to merits of the additioin/disallowance made by the ld. A.O, the ld. CIT(A)-II, Kanpur has erred in law and on facts in forming his 'view' on such issues and such 'view' cannot be termed as 'Finding' in terms of section 153 of the Income Tax Act, 1961 . This 'view'/ finding of the ld. CIT(A)-II, Kanpur was not at all neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n k of precious manpower/efforts/time/financial resources of government officials and appellant. Under these circumstances, it is humbly prayed that the reassessment proceedings directed so be initiated by ACIT-1, Kanpur may please by Stayed till disposal of appeal before Hon'ble ITAT in ITA No. /LKW/2019. It is further prayed that said appeal before your honours may be fixed at an early date. Reliance is placed on following judgments and decisions: (a) Decision of Hon'ble ITAT Indore in the case of M/s Radhishwari Developers Pvt Limited Vs PCIT-II Indore in SP No./67/Ind/201 8 (Arising out of ITA No. 493/Ind/201 8) (b) Judgment of Hon'ble Andhra Pradesh High court in the case of ITO Vs Khalid Mehdi Khan 91977) 110 ITR 79. 2. The stay application seeks stay of reassessment proceedings consequent to the direction issued by the ld. CIT(A). The applicant also states in the application that there is no demand outstanding against it, and that an amount of ₹ 16,24,180/- stands already paid. The grounds raised by the assessee in the stay application directly impinge upon the result of the appeal itself. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (APB: 23-25) dated 19/9/2018, remanded the matter to the file of the ld. CIT(A), to be decided afresh on affording due opportunity of hearing to the assessee. The ld. CIT(A), vide order dated 2/5/2019, i.e., the impugned order, annulled the assessment order, holding as under: 5.2 The undersigned has carefully gone through the assessment order, written submissions and verbal arguments of the Ld. A.R. of the appellant. The main objection of the appellant for challenging the proceedings u/s 147 is that no action shall be taken u/s 147 after the expiry of four year from end of the relevant AY, unless any income chargeable to tax has escaped assessment for such AY by reason of the failure on the part of the assesses to make a return or to disclose fully and truly all material facts necessary for assessment for that assessment year, (ii) that where the assessment has completed u/s 143(3) no case can be reopened under section 148 after the expiry of 04 years from end of the relevant AY unless the CCIT or CIT is satisfied, on the reasons recorded by the AO aforesaid, that it is a fit case of issue of such notice. It is seen that appellant has raised t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings. 5.4 After considering the facts of the case of the appellant as narrated above, and arguments placed by the learned AR of the assesses , the undersigned is of the considered view that the A.O. had no jurisdiction to issue notice u/s 148 and to recomputed the income of the appellant u/s. 143(3) u/s. 147 of the Act. Therefore, issue of notice u/s. 148 assessment by ITO-4(1), Kanpur is ab-initio invalid and bad in law, hence the assessment order is hereby annulled. As the assessment order is annulled, the other grounds of appeal are not adjudicated and treated as infructuous. 7. However, while annulling the assessment order, as above, the ld. CIT(A) issued the following direction to the jurisdictional A.O: 5.5 Even though, assessments in present appeal has been annulled on legal ground, undersigned is of the view that income of the appellant amounting to ₹ 26,38,000/- is chargeable to tax in view of Supreme Court judgement in the case of Citizen Cooperative Society, 397 ITR 1 (SC) and Totgars Cooperative Sale Society Limited vs. Income Tax Officer, 322 ITR 283 (SC). Hence, jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, a notice under section 148 may be issued at any time for the purpose of making an assessment in consequence of or to give effect to any finding or direction contained in an order passed on appeal. Section 150(2) of the Act, however, provides that the provisions of section 150(1) of the Act shall not apply in any case where any such assessment, made in consequence of an appellate order relates to an assessment year in respect of which an assessment could not have been made at the time the order, which was the subject matter of the appeal, was made, by reason of any other provision limiting the time within which any action for assessment may be taken. Section 149 of the Act lays down the time limit for issuance of notice under section 148 of the Act. In accordance with section 149(1)(b) of the Act, if four years, but not more than six years have elapsed from the end of the relevant assessment year, and if the income chargeable to tax which has escaped assessment amounts to one lakh rupees or more for that year, notice under section 148 of the Act for the relevant assessment year shall be issued. In other words, in such a case, a notice under section 148 of the Act can be issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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