TaxTMI 
TaxTMI 
2010 (4) TMI 388
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for the same period. 2. For the purposes of this judgment, the facts of Tax Case No. 28 of 2006 are relevant. 3. This appeal under section 260A of the Income-tax Act, 1961 (for short "the Act") against the order of the Income-tax Appellate Tribunal, Nagar, (for short "the Tribunal") has been admitted on November 27, 2006, on substantial questions of law as detailed under the caption "Substantial questions of law" in the memo of appeal. 4. Briefly stated the facts of the case, as projected in the impugned order of the Tribunal, are that search and seizure operations in the premises of the Dhuppad group were conducted between December 20/23, 2001 and proceeding under section 158BD was initiated against the assessee and the assessment was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e assessment is getting time-barred by two days on February 2, 2006, it was not difficult for him to pass the ante dated order on February 2, 2006 mentioning the date of assessment order as January 31, 2006. Therefore, mistake committed by the Assessing Officer is bona fide and for the bona fide mistake committed by the Assessing Officer in passing the order on February 2, 2006, the Revenue should not suffer. It would be a rigid view against the Revenue if we quash the impugned assessment which is being time-barred by only two days." And accordingly cancelled the order of the Commissioner of Income-tax (Appeals) and restored the matter back to the file of the Commissioner of Income-tax (Appeals) with a direction to decide the issue of addit....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 22, 2005 fixing the case on December 29, 2005. Virtually, the hearing of the case was started from this date only and no hearing took place prior to this date, except issue of fixation notice and questionnaire. The case was heard by the new incumbent, i.e., by the present Assessing Officer only from December 22, 2005 and it was not reheard since the proceedings were itself started from December 22, 2005. Under these circumstances, the Assessing Officer cannot take shelter of the provisions of section 129 for extending the limitation. The provisions under section 129 could be resorted to had there been any hearing earlier and any demand by the assessee for re-hearing after taking over of new incumbent and thus, assessment should have been c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....here is change of incumbent of an office, the income-tax authority ceases to exercise jurisdiction and succeeded by another, the assessee concerned may demand that before the proceeding is continued the previous proceeding be reopened and he may be reheard before any order of assessment is passed. In such circumstances, time taken in reopening the proceeding or giving an opportunity to the assessee to be reheard under the proviso to section 129 is to be excluded and after exclusion of the afore-said period, the period of limitation referred to in sub-section (1) or sub-section (2) of section 158BE available to the Assessing Officer for making an order under clause (c) of section 158BC is less than 60 days, such remaining period stands exten....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y part thereof or applies for rehearing before any order of assessment is passed by the new incumbent and after excluding the time spent in reopening or rehearing if the limitation prescribed for completing assessment is less than 60 days, in that case, such remaining period stands extended to 60 days. 14. Indisputably, there is no provision in the Act which confers the Tribunal with any power to condone any delay in framing assessment on the ground of bona fide mistake on the part of the Assessing Officer. 15. On the basis of the aforesaid discussion, we are of the opinion that the Tribunal had no power to bypass the provision of limitation by treating the assessment made beyond limitation as bona fide mistake on the part of the Assess....