TMI Blog2019 (8) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 on direction of superior Officer - As per the provisions of section 147 it is only if the AO has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, that he may assess or reassess such income. Thus, the reason to believe escapement of income has necessarily to be that of the AO only and not of any other authority. In CIT v. SFIL Stock Broking Ltd. [ 2010 (4) TMI 102 - DELHI HIGH COURT] it has been held, inter alia, that the Assessing Officer cannot reopen a completed assessment merely because he has been directed to do so by a superior Officer. Therefore too, the direction issued by the learned CIT(A) cannot entitle the AO to initiate proceedings under section 147. Grievance of the assessee to be justified, the same is accepted. - Decided in favour of assessee. - S. A. No. 30/Lkw/2019 in I. T. A. No. 361/Lkw/2019 (assessment year 2011-12). - - - Dated:- 28-6-2019 - A. D. Jain Vice-President And T. S. Kapoor Accountant Member For the Assessee : Swarn Singh, Fellow Chartered Accountant For the Department : Smt. Alka Singh, Departmental representative ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under section 150(1) have been issued. Therefore, for the purpose of issue of notice under section 148, the period of six years from the end of relevant assessment year, i. e., 2004-05, 2005-06 and 2006-07 expires on March 31, 2010, March 31, 2011 and March 31, 2012 respectively, whereas the learned Commissioner of Income-tax (Appeals) has passed the appeal order on March 22, 2016. Therefore, the Assessing Officer could have taken any action as per limitation provided under section 150(2) on the basis of the order of the learned Commissioner of Income-tax (Appeals) dated March 22, 2016 for invoking section 150(1) of the Act, if the order of appeal was passed on or before March 31, 2012. Thus, we are of the considered opinion that the Assessing Officer can pass an order under section 150(1) of the Act, provided the appellate/original order was passed within the period of limitation available for reopening the relevant assessment. In this case, on the date of appellate order, i. e., March 22, 2016, the limitation period for taking action in accordance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 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.' 2. That in para. 5.7 of the impugned appellate order, without adjudicating the specific ground(s) raised by the appellant relating to merits of the addition/disallowance made by the learned Assessing Officer, the learned Commissioner of Income-tax (Appeals)-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 learned Commissioner of Income-tax (Appeals)-II, Kanpur was not at all necessary for the disposal of the present appeal as the assessment was annulled on legal grounds at paras. 5.5 and 5.6 of the impugned appellate order and the grounds taken by appellant on merit of the case were not adjudicated by the learned Commissioner of Incometax (Appeals) and were considered infructuous. Reliance in this regard in placed on the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposal of appeal before hon'ble Income-tax Appellate Tribunal in I. T. A. 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 Income-tax Appellate Tribunal, Indore in the case of Radhishwari Developers Pvt. Limited v. Pr. CIT in S. P. No. 67/Ind/2018 (Arising out of I. T. A. No. 493/Ind/2018). (b) Judgment of hon'ble Andhra Pradesh High Court in the case of ITO v. Khalid Mehdi Khan (Minor) [1977] 110 ITR 79 (AP). 2. The stay application seeks stay of reassessment proceedings consequent to the direction issued by the learned Commissioner of Income-tax (Appeals). The grounds raised by the assessee in the stay application directly impinge upon the result of the appeal itself. Since it is a question of law, we have taken up the appeal itself for hearing, with the consent of the parties. 3. The appeal of the assessee in I. T. A. No. 361/Lkw/2019 is directed against the order of the learned Commissioner of Income-tax (Appeals)-II, Kanpur dated May 3, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der (APB : 11-22) dated May 3, 2019, annulled the assessment order framed by the Assessing Officer. However, while annulling the assessment order, the learned Commissioner of Income-tax (Appeals) issued the following direction to the jurisdictional Assessing Officer : 5.7 Even if, assessment are annulled, there is strong case of escapement of income especially considering provision of section 50C of the Act. Therefore, jurisdictional Assessing Officer is directed to execute the remedial action on the legal heir of the appellant under section 148 of the Act. This may be considered as direction under section 150 of the Act 6. It is the above direction which brings the assessee before us, by way of the present appeal. 7. The learned authorised representative of the assessee has contended that the learned Commissioner of Income-tax (Appeals)-II, Kanpur has erred in law and on facts in giving direction under section 150 of the Act to the Assessing Officer to execute remedial action under section 148 of the Act, ignoring the provisions of section 150(2) of the Act that the direction issued under section 150 of the Act by the learned Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 up to a maximum period of six years from the end of the relevant assessment year. 11. In the present case, the impugned order was passed on May 3, 2019. The assessment year involved is assessment year 2011-12. Thus, in accordance with the provisions of section 149(1)(b) of the Act, notice under section 148 of the Act could have issued by the end of assessment year 2018-19. This period had already elapsed when the impugned order came to be passed. Therefore, the law not permitting initiation of proceedings under section ..... 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