TaxTMI 
TaxTMI 
2015 (1) TMI 1347
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....d facts and circumstances of the case in annulling the assessment order passed under section 143(3)/147 on 10.10.2011 holding the same as barred by limitation of time under section 153 of the IT. Act., 1961. 2. The ld CIT(A) has erred in law and on facts and circumstances of the case in holding that the time period of sixty days prescribed by the first proviso to section 153 of the I.T. Act, 1961 is to be counted from the date of pronouncing, per se, the order vacating the stay by the Hon'ble High Court and not from the date such order was communicated to the Income tax Department by the Hon'ble High Court. 3. The ld CIT(A) has erred in completely overlooking the alternative applicability of provisions of section 1....
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....ssessment order u/s.143(3)/147 of the Act on 10.10.2011 and made certain additions/disallowances. 4. Aggrieved by the order of the AO, the assessee carried the matter in appeal before the ld CIT(A) and the ld CIT(A) vide his order dated 27.8.2012 held that the assessment order passed by the AO is barred by limitation and consequently, annulled the same. The relevant findings of ld CIT(A) are as under: "5. I have carefully considered the various submissions of the AR of the appellant and assessment order of the AO and also perused the materials available record. The provisions of section 153 relevant for the issue under consideration is extracted as under:- '153. (1)... (2) No order of assessment, reassessme....
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....te that the period during which assessment proceedings was stayed in the instant case as from 16.03.2004 to 26.05.2011 only. After 26.05.2011 there was no stay order in force. Thus, the period from 16.03.2004 to 26.05.2011 during which the assessment proceedings were stayed by the order of the Hon'ble Gauhati High Court, is the period which alone can be excluded under. Explanation 1(ii) to section 153 for the purposes of computing the period of limitation. The above view finds support from the orders of the Hon'ble Tribunal in the case of ITO v. Mahesh Chandra Agarwal [2010] 131 TTJ (Lucknow) 732 wherein it was held as under: We have heard the rival submissions and also perused the materials available on record. Af....
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....arjee [2004] 3 SOT 282 (Gau) and ITO v. Atul Agarwal [2008] 10 DTC (Del) (Trib) 120. (The above view is also supported by the observations made by the Hon'ble Supreme Court in the case of Auto & Metal Engg. v. Union of India [1998] 229 ITR 399. The time period available with the AO when the stay order was passed by the Hon'ble high Court on 16.03.2004 was of 15 days (31.03.2004 being the last date of making the order). On 26.05.2011 the stay granted was vacated by the Hon'ble High Court and after that no stay was in operation. Since on exclusion of the period of stay, the period available for making the assessment order on 26.05.2011 with the AO was less than 60 days, the time limit for making the assessment got extended to 60 d....
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.... Bench held that for counting period of limitation, it is the date of order vacating the stay which is relevant and not the date on which such order was served on the AO. Admittedly, in this case, notice u/s.148 of the Act, has been issued on 31.5.2002. Keeping in view the provisions of section 153(2) of the Act, the assessment order should have been passed on or before 31.3.2004. However, assessment proceedings were stayed by the Hon'ble Jurisdictional High Court on 16.3.2004, which was vacated on 16.3.2011 when the writ petition filed by the assessee was dismissed. Admittedly, after 26.5.2011, there was no stay of proceedings before the AO. Thus, the period from 16.3.2004 to 26.5.2011 has to be excluded as per clause (ii) of Explanati....