TaxTMI 
TaxTMI 
2016 (5) TMI 324
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....he condonation of the said delay. Hence we condone the delay of 20 days in preferring cross objections before us and the same is admitted herein for adjudication. 2.1. The ground raised by the assesee in his cross objection is as below:- That the CIT(Appeals) on the facts and in the circumstances of the case should have held that the assessment is barred by limitation of time in terms of section 153(2A) and is a nullity. 2.2. The brief facts of this issue is that the original assessment was completed u/s 143(3) of the Act determining total income of Rs. 47,94,060/-. On first appeal, the assessee was granted partial relief. Both assessee as well as the revenue preferred further appeal before this tribunal and the tribunal vide its order dated 28.9.2007 had restored the two additions made by the Learned AO to the file of the Learned AO for fresh decision. Consequently, the fresh assessment order was passed by the Learned AO on 25.3.2009 repeating the same additions as were made in the original assessment. It was argued by the Learned AR that the fresh assessment pursuant to ITAT 's order should have been framed by the Learned AO on or before 31.12.2008 in terms of sect....
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....ued that it is only restoring back to the file of the Learned AO for verification of comparable cases and sundry creditors. He placed reliance on the decision of the Hon'ble Apex Court in the case of Rajasthan R.S.S. & Ginning Mills Fed. Ltd vs DCIT reported in (2014) 45 taxmann.com 1 (SC) wherein , in the context of carry forward and set off of accumulated losses u/s 72A of the Act in case of amalgamation, it was held that - it is clear that the tax statute should be interpreted very strictly as there is no equity in tax matters and nothing can be read which is not in the section. 2.5. We have heard the rival submissions. At the outset, it would be relevant to reproduce the finding portion of the tribunal order in ITA No. 1567/Kol/2007 (assessee appeal) and ITA No. 1430/Kol/2007 (revenue appeal) for Asst Year 2004-05 dated 28.9.2007 to understand the clear language and understanding of the issue :- 6. We have given our careful consideration to the rival submissions made before us and have perused the orders of tax authorities. We have also considered the paper book filed by the ld. Counsel for the assessee. The assessee has disputed the order of authorities below in es....
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....section 263 or section 264 is passed by the [ Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner: Provided that where the order under section 250 or section 254 is received by the Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the [ Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or ] Commissioner, on or after the 1st day of April, 1999 but before the 1st day of April, 2000, such an order of fresh assessment may be made at any time up to the 31st day of March, 2002 :] ^93[Provided further that where the order under section 254 is received by the[ Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the [ Principal Commissioner or] Commissioner on or after the 1st day of April, 2005 [ but before the 1st day of April 2011], the provisions of this sub-section shall have effect as if for the words "one year", the words "nine months" had been subs....
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....nstead had set aside the entire assessment to make it afresh by following due process of law for the purpose of examination of some witnesses in line with the principles of natural justice. The Tribunal may indicate certain lines of enquiry or other exercises for conforming to natural justice or conducting the assessment on the right procedure. That does not mean that the Tribunal's order is not for a fresh assessment. It had effectively asked the Learned AO to make fresh exercise of assessment determining the total income. 2.5.4. It would also be relevant to look at this aspect from the perspective of historical background of this enactment. It would be seen that the legislature from its experience found that the fresh assessment in the cases of orders of setting aside used to be completely neglected and to be shelved ad infinitum to gather dust for decades. This caused a mounting backlog as there was no limitation of time for completion of such assessment. This necessitated the introduction of limitation to end this potential mischief. If the Learned AO's pleading is taken as correct, in that case it would virtually mean that the orders of the Tribunal passed u/s 254 of the Ac....
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....finitely means the setting aside of the original order and a fresh assessment determining the total income. In effect, the tribunal's order annihilates the earlier assessment as the total income determined by it no more subsists. 2.5.6. The Learned AO by substituting his old order by passing a fresh order on 25.3.2009 had rendered the first order inoperative. The Learned AR argued that the word 'restore' means returning the matter for assessment to the point prior to its completion in the first instance. 'Setting aside' has also the same effect. 2.5.7. The Learned AR further argued that the Learned Assessing Officer had tried to capitalize on expression 'direction' used in section 153(3) of the Act. In this regard, he argued that the words 'finding and direction' occur in sub-section (3). He stated that there is a fundamental mistake in depending on sub-section (3). Sub-section (3) deals with a situation altogether different from the situation in an order of the Tribunal requiring the Learned AO to re-determine the total income. He again reiterated that may be, the Tribunal while nullifying a decision of the Learned AO may indicate some procedural guidelines or the needful fo....
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....order. 2.5.9. We find that the case law relied upon by the Learned DR on the decision of the Hon'ble Apex Court in the case of Rajasthan R.S.S. & Ginning Mills Fed. Ltd vs DCIT reported in (2014) 45 taxmann.com 1 (SC) is not at all applicable to the facts of the instant case. The issue before the Supreme Court was in the context of carry forward of losses in case of amalgamation. It held that the taxing statute should be viewed very strictly and no words can be read into the section. We are also in agreement with the said proposition that the taxing statutes are to be viewed very strictly. But in the instant case, there is no question of inserting of words into the section as argued by the Learned DR. 2.5.10. We hold that it makes no sense in distinguishing the restoration of an order from setting aside an order. Thus the Learned CITA is in error by saying that by restoring an assessment , the Tribunal did not set aside the assessment and resultantly the fresh assessment is immune from the limitation u/s 153(2A) of the Act. We find that the Learned AO infact had understood the word 'restored' as meaning 'set aside' because he withheld the refund of the tax collected before th....
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....s set aside to the extent it did not give the assessee opportunity to place its evidence. Therefore, section 153(2A) was applicable. (b) Decision of the Hon'ble Gujarat High Court in the case of Instruments and Control Co. vs CCIT and Others reported in (2012) 349 ITR 571 (Guj) , wherein it was held that : 25. To our mind, the case on hand would fall under sub-section (2A) of section 153 of the Act. The Tribunal may not have used the words of "setting aside the assessment", nevertheless, when it remitted the matter back to the Assessing Officer for summoning two witnesses again for crossexamination by the assessee and permitted further probe to the Assessing Officer, necessarily, it must be understood to have set aside the assessment under challenge. The Tribunal, otherwise in law, could not have remitted the proceedings to the Assessing Officer for fresh consideration after summoning the two witnesses and carrying out such probe as may be necessary. We may record that such commissions paid to the two agencies was the sole dispute between the assessee and the Department. In the original assessment, the Assessing Officer discussed only this issue and made corresponding d....
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....prescribed, i.e., the" effect can be given within any time. In this case from the facts it is clear that the appellate authority has not set aside the assessment completely but two issues were sent to the AO so that the AO can determine the income relating to those issues and thereby work out the assessed income of the assessee. Whether this will tantamount to setting aside the assessment relating to those issues. Whenever an assessment is set aside always generally directions and findings are given by the appellate authority . Therefore we cannot hold that the provisions of s. 153 (2A) will not apply to such cases. In our opinion, it is not essential that the word 'set aside' should be written In e order, where the order has been set aside, the order has been set aside must be borne out of the facts and context of the order. The provisions of s. 153(2A) and 153(3) are to be interpreted harmoniously. The word 'set aside' is defined in Webister 3rd New International Dictionary as "to put to one side, to discard, to set apart for a purpose, overrule." Going to the order of the CIT(A) relating to the ground Nos. 7 and 8, we find that the CIT(A) noted that the AO has no....