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Income Tax Appellate Tribunal, “B”, BENCH KOLKATA
Before: SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM
आदेश / O R D E R Dr. A.L. Saini, AM:
The captioned appeal filed by the Revenue, pertaining to assessment year 1995-96, is directed against the order passed by the Commissioner of Income Tax (Appeal)-20, Kolkata in appeal no. CIT(A), Kolkata-20/10090/2007-08, which in turn arises out of an assessment order passed by the Assessing Officer u/s 144 / 254 / 143(3) of the Income Tax Act, 1961 (in short the “Act”) dated 02/07/2007.
At the time of hearing none appeared on behalf of assessee in spite of issuance of notice for hearing more than one occasion and Ld. Departmental Representative(DR), was present for the appellant Revenue. In the absence of any CFL Capital Financial Services Ltd. Assessment Year:1995-96 appearance by the assessee, the appeal is being disposed of ex parte qua the assessee, after hearing Ld. DR for the Revenue on merits in terms of Rule 24 of the Income Tax Appellate, Tribunal, Rules, 1963.
The appeal filed by the Revenue is barred by limitation by 41 days. The Revenue filed petition for condonation of delay. We have heard both the parties on this preliminary issue and having regard to the reasons given in the petition for condonation of delay. We condone the delay and admit the appeal of revenue for hearing.
The grounds of appeal
raised by the revenue reads as follows:
1. Whether on the facts and circumstances of the case and in law, the ld. CIT(A) has erred by holding that this case falls under purview of Section 153(2A) and not under section 153(3)(ii).
2. Whether the order of ld. CIT(A) is tenable in absence of issue of notice by him u/s 250(1) to the Assessing Officer.
3. That the appellant craves for leave to add, delete and modify any of the grounds of appeal before or at the time of hearing.
5. We note that the ld. CIT(A) has adjudicated the issue in respect of limitation u/s 153A observing the followings:
5.1. Foremost is the issue of whether the impugned assessment order had been barred by limitation u/s 153.
5.1.1 This being the case of the Hon’ble ITAT by its order dated 13.08.2003 remanding the issue to the AO for fresh adjudication - thus it was the case of limitation u/s 153(2A)) - which mandate was that the assessment order be completed before the expiry of 1 year from the end of the financial vear in which the order u/s 254 is received by the Commissioner.
Thus, in this instant case, the assessment order was to be made by 31.03.2005.
Whereas the impugned assessment order was made 2 years later - on 02.07.2007. Even the notice for hearing was issued after the period for making the order of assessment had already been time-barred - being notice dated 12.04.2007. 5.1.2. I have today also passed the appeal order for the AY 1998-99 on the like- wise assessment u/s 144/254. That order too the ACIT AO had made by on the Page | 2
CFL Capital Financial Services Ltd. Assessment Year:1995-96 same date as this impugned order on 02.07.2007. Thus it is obvious that when the proceedings u/s 143(3)/254 were taken up for the AY 1998-99, that the ACIT AO realized from the records that there was also to be made assessment u/s 143(3)/254 for this AY 1995-96 and also 1996-97; but by then already barred by limitation u/s 153(2A).
5.1.3. The ACIT AO has tried to take refuge u/s 153(3)(ii) - but those provisions are in totally different context, being in the context of consequential effect. This is not the case here. And, in the appeal submissions the AR has relied on the following decision - which deals on the issue:
[2005] 93 ITD 535 (Kolkata)/[2005] 94 TTJ 169 (Kolkata) [2005] 93 ITD 535 (KOL.) IN THE ITAT KOLKATA BENCH ‘B’ W.C. Shaw (P.) Ltd. v. Assistant Commissioner of Income-tax K.K. GUPTA, ACCOUNTANT MEMBER AND C.L. SETHI, JUDICIAL MEMBER IT (SS) APPEAL NO. 72 (KOL.) OF 2003 [BLOCK PERIOD 1-4-1986 TO 3-11-1995] JANUARY 31, 2005 Section 153, read with section 158BE, of the Income-tax Act, 1961 - Assessment - Time-limit for completion of - Block period 1-4-1986 to 3-11-1995 - Whether limitation specified in section 158BE is limitation for completing assessment to be made by Assessing Officer and it is not a limitation for making a fresh assessment setting aside or cancelling assessment in pursuance of an order under section 250 or 254 or 263 or 264 - Held, yes - Whether for purpose of applicability of section 153(2A), it is not necessary that whole assessment should be set aside to complete same de novo and even if fresh assessment has to be made in respect of any one issue in pursuance of order under section 250 or 254 or 263 or section 264, provisions of section 153(2A) would be applicable for purpose of completing fresh assessment on said issue which has been set aside for fresh adjudication - Held, yes - Whether time-limit for making fresh assessment referred to in section 153(2A) is not lifted by section 153(3) - Held, yes - Whether where Tribunal directed Assessing Officer to decide matter afresh but there was no specific finding or direction on issues involved therein, provisions of section 153(3) would not be applicable - Held, yes - Whether, therefore, fresh assessment order of Assessing Officer dated 28-3-2003 in pursuance of Tribunal’s order dated 1-6- 2000 would be barred by limitation - Held, yes 5.1.4. Thus, the impugned assessment order had already been barred by limitation.
6. Conclusion: The Appeal succeeds.”
CFL Capital Financial Services Ltd. Assessment Year:1995-96 Thus, in this instant case, the assessment order was to be made by 31.03.2005.Whereas the impugned assessment order was made 2 years later - on 02.07.2007. Even the notice for hearing was issued after the period for making the order of assessment had already been time-barred - being notice dated 12.04.2007. We note that the ld. CIT(A) has passed a reasoned order considering all the facts of the case and law applicable to the facts therefore it does not require any interference. That being so, we decline to interfere in the order passed by the ld. CIT(A), his order on this issue, is hereby upheld and the grounds of appeal raised by the Revenue is dismissed.
In the result, the appeal of the revenue is dismissed.
Order pronounced in the Court on 22.01.2020