TaxTMI 
TaxTMI 
2008 (5) TMI 338
X X X X Extracts X X X X
X X X X Extracts X X X X
....izure operations under s. 132 of the Act carried out at the residential premises of its managing director, the AO issued notices under s. 148 of the IT Act for the asst. yrs. 1989-90, 1990-91 and 1991-92. In response thereto the assessee company filed nil returns. However, the AO completed the assessment on 29th March, 1996 determining the total income as under: Asst. yr. 1989-90 Rs. 1,35,350 Asst. yr. 1990-91 Rs. 4,60,000 Asst. yr. 1991-92 Rs. 10,96,960. 5. Aggrieved, the assessee carried the matter in appeal before learned CIT(A). The first appellate authority, by his common order dt. 10th Oct., 1996, partially set aside the matter for the asst. yr. 1989-90 and totally set aside the matter for the asst. yrs. 1990-91 and 1991-92. For asst. yr. 1989-90, a consequential order was passed on 19th Nov., 1996; however no such order was passed for the other two years. Aggrieved against the order of learned CIT(A), the assessee went in appeal before Hon'ble Tribunal. The Hon'ble Tribunal after considering the facts of the case upheld the order of learned CIT(A) and dismissed the appeal of the assessee for all the three years. The order of Tribunal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....99. Since the AO has passed the order only in March, 2004, the same is barred by limitation and hence the assessment orders are liable to be quashed. In this connection he relied upon the following decisions: (i) CIT vs. Smt. Kamla Devi (1996) 217 ITR 330 (All); (ii) Gulabchand Motilal vs. CIT (1987) 66 CTR (MP) 75 : (1988) 174 ITR 117 (MP). 8. On the contrary, learned Authorised (sic-Departmental) Representative, by adverting our attention to ss. 153(2A) and 153(3)(ii) of the IT Act, submitted that the Act prescribes time-limit only of two years or one year, as the case may be, in respect of orders which are passed under s. 153(2A) and the Act does not prescribe any time-limit for the orders passed under s. 153(3)(ii). In the present case under consideration, the assessee had preferred appeal before Hon'ble Tribunal against CIT(A)'s order dt. 10th Oct., 1996 and Hon'ble Tribunal passed its order on 29th Nov., 2002. According to amended s. 153(2A), one year time-limit is available from the end of the financial year in which order of the Hon'ble Tribunal was passed and accordingly the time-limit expires only on 31st March, 2004. As the AO has passed consequential orders giv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wise than by way of appeal or reference under this Act. This sub-section is however subject to sub-s. (2A). 10. The core words which are relevant are "fresh assessment", "finding" and "direction". The Hon'ble Supreme Court in the case of ITO vs. Murlidhar Bhagwan Das (1964) 52 ITR 335 (SC) has explained the meaning of terms 'finding' and 'direction'. "Finding" means a finding necessary for giving relief in respect of the assessment for the year in question. Therefore a 'finding' can only be that which is necessary for the disposal of an appeal with respect to a particular assessment year. The term 'direction' means a 'direction' which the appellate authority is empowered to give while deciding the case before it. A direction by a statutory authority is in the nature of an order requiring positive compliance. When it is left to the option and discretion of the AO whether or not to take action, it cannot be described as a "direction". The plain meaning of "fresh assessment" would mean "assessment done afresh or de novo assessment". 11. Thus there is fine distinction in the application of ss. 153(2A) and 153(3)(ii). When a fresh assessment is required to be made in pursuance of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... an assessment year, recorded that the loss cannot be set off against the income of the subsequent year, the Hon'ble Supreme Court [CIT vs. Manmohan Das (1966) 59 ITR 699 (SC)] held that the noting of the ITO is not binding on the assessee as the question of carry forward and set off of the loss, under the law, has to be considered by the ITO who deals with the assessment of the subsequent year. In this case, the AO should not have been carried away by the representations made by the assessee's counsel. but should have acted strictly in accordance with the law. Hence the principle of estoppel shall not come to the help of the Department. 13. The contention of the learned Departmental Representative that the consequential order has been passed to give effect to the order of Hon'ble Tribunal is also not correct according to the facts of this case. The Hon'ble Tribunal has not given any finding or direction; nor has it set aside or cancelled the assessment order. After considering the facts, the Hon'ble Tribunal has upheld the order of learned CIT(A) and has dismissed the appeal of the assessee. In that kind of orders, there is no obligation or statutory duty cast upon the AO as he....