TMI Blog2005 (1) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 153 of the Act. It is further clear that for the purpose of applicability of section 153(2 A), it is not necessary that the whole assessment should be set aside to complete the same de novo. Even if fresh assessment is to be made in respect of any one issue in pursuant to the order under section 250 or section 254 or section 263 or section 264, the provisions of section (2A) of section 153 would be applicable for the purpose of completing the fresh assessment on the said issue which has been set aside for fresh adjudication. Thus, we are, of the opinion that the fresh assessment order dated 28-3-2003 in pursuance to the Tribunal's order dated 1-6-2000 is barred by limitation inasmuch as it has not been made within one year from the end of the financial year in which the Tribunal's order dated 1-6-2000 was received by the Commissioner or the Chief Commissioner. In the result, the assessment order is found to be barred by limitation. Since we have hold that the assessment order passed by the Assessing Officer on 28-03-2003 is beyond the prescribed period of limitation and is thus bad in law, we need not to decide the other grounds raised by the assessee on merit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further rectified by the Tribunal vide its order dated 08-10-2001 in MA No. 74 (Cal.) of 2001 arising out of the Tribunal order passed in IT(SS) A No. 9 (Cal.) of 1997 by saying that the aforesaid direction was not applicable for the entire block period, but the said direction was applicable only for the broken block period from 1-4-1995 to 3-11-1995 for the purpose of tax. The Tribunal, therefore, deleted the words "Block period" from the said order at para 10A. The issue restored back to the file of the Assessing Officer were taken up for fresh adjudication by the Assessing Officer and, accordingly, the case was fixed for hearing by issuing the required notices and questionaire. After considering the materials on record and hearing the assessee, the Assessing Officer completed the fresh assessment order under section 143(3)/254/158BC on 28-03-2003 against which the assessee has preferred this appeal. 6. It has been contended by the ld. Counsel for the assessee that the fresh assessment order should have been completed by the Assessing Officer within one year on or before 31-3-2002, i.e. from the end of the financial year 2000-01 in which the Tribunal's order under section 254 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 153(2A) of the Act and as such the fresh assessment order on those issues remitted back to the Assessing Officer by the Tribunal for his fresh adjudication are beyond the limitation and are to be struck down as ab intio void and barred by limitation. In this connection, the ld. Counsel for the assessee as relied on the following decisions:- (i) Judgment of ITAT, Agra Bench in the case of Smt. Krishna Devi [2004] 270 ITR (AT) 24 (ii) Judgment of Madras High Court in the case of M. Katiannan v. CIT [2003] 261 ITR 466 (iii) Judgment of MP High Court in the case of Gulabchand Motilal v. CIT [1988] 174 ITR 117 (iv) Judgment of Allahabad High Court in the case of CIT v. Smt. Kamla Devi [1985] 217 ITR 330 7. He further placed reliance on Explanatory note in circular No. 14 of 2001 of the CBDT with regard to the amendment in section 153(2A) and section 251, reported in 252 ITR (st) 115, 119. A reliance was also placed on the decision of the ITAT Kol. Bench 'A' 'C in the case of Saratkumar Jhunjhunwala in WT Appeal No. 586/(Kol.) of 2002 dated 30-5-2003 and in the case of Peerless Consultancy Services (P.) Ltd. in ITA No. 1105/K/ 2003 dated 15-01-2004 respectively. 8. The ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the day on which the Assessing Officer directs the assessee to get his accounts audited under sub-section (2A) of section 142 and ending on the day on which the assessee is required to furnish a report of such audit under that sub-section, shall be excluded. Explanation 2 - For the removal of doubts, it is hereby declared that the authorization referred to in sub-section (1) shall be deemed to have been executed- (a) in the case of search, on the conclusion of search as recorded in the last panchnama drawn in relation to any person in whose case the warrant of authorization has been issued. (b) In the case of requisition under section 132A on the actual receipt of the books of account or other documents or assets by the Authorised Officer". 12. Section 158BH reads as under:- "Application of other provisions of this Act. 158BH. Save as otherwise provided in this Chapter, all other provisions of this Act shall apply to assessment made under this Chapter." 13. Section 153 is as under:- " Time limit for completion of assessments and reassessments. 153(1) No order of assessment shall be made under section 143 or section 144 at any time after the expiry of- (a) two years from the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding otherwise than by way of appeal or reference under this Act. (iii) where, in the case of a firm, an assessment is made on a partner of the firm in consequence of an assessment made on the firm under section 147. Explanation 1 - In computing the period of limitation for the purposes of this section- ---------------------------- (i) ** ** ** (ii) ** ** ** (iii) ** ** ** (iv) ** ** ** (iva) ** ** ** (v) ** ** ** ---------------------------- shall be excluded:" 14. On reading section 158BE of the Act, it is seen that section 158BE only specifies the period within which the Assessing Officer must complete the assessment. The limitation specified in section 158BE is the limitation for completing the assessment to be made by the Assessing Officer, and it is not a limitation for making a fresh assessment in pursuance of an order under section 250 or 254 or 263 or 264 setting aside or cancelling the assessment. In other words, there is no time limit prescribed under Chapter XIV-B for completion of fresh assessments in pursuance of an order under section 250 or 254 or 263 or 264 of the Act. At the same time, section 158BH provides that save as otherwise provided in Chapter XIVB, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assessing Officer is within the time limit provided under section 153(2A) of the Act. 15. On reading sub-section (2A) of section 153 of the Act substituted by the Finance Act, 2001 w.e.f. 1-6-2001, it is seen that fresh assessment in pursuance of an order under section 250 or section 254 or section 263 or section 264 are required to be made before the expiry of one year from the end of the financial year in which the order under section 250 or section 254 is received by the Chief Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Chief Commissioner or Commissioner. In the instant case the Tribunal's order under section 254 dated 1-6-2000 was received by the Chief Commissioner or Commissioner within financial 2000-01, and as such the fresh assessment order in pursuance of the Tribunal's order under section 254 dated 1-6-2000 was required to be made before the end of 31-3-2002 as per provisions contained in sub-section (2A) of section 153, which is mutatis mutandis, is applied to the block assessment proceedings are clarified by the Board that the provisions relating to regular I.T. proceedings shall be applied to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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