TaxTMI 
TaxTMI 
2019 (8) TMI 437
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....tation and liable to be expunged. Reliance is placed on the following decisions : (a) Decision of hon'ble Income-tax Appellate Tribunal, Lucknow in the case of Sandeep Jain v. ITO in I. T. A. No. 811/Lkw/2017 (paper book Nos. 23-38). (b) Decision of hon'ble Income-tax Appellate Tribunal, Lucknow in the case of Smt. Neelam Gupta v. ITO in [2007] 110 TTJ 714 (Lucknow) (paper book Nos. 39-41). (c) Decision of hon'ble Income-tax Appellate Tribunal, Jaipur Bench in the case of Ramesh Chand Soni, HUF v. ITO [2018] 89 tax mann.com 71 (Jaipur-Trib) (paper book Nos. 42-50). (d) Decision of hon'ble Income-tax Appellate Tribunal, Indore Bench in the case of Narayandas Tolani v. ITO in I. T. A. No. 834/Ind/ 2016. In this case, under similar circumstances the hon'ble Incometax Appellate Tribunal, Indore expunged, and deleted the "direction" under section 150(1) of the Income-tax Act, 1961 and held as under (paper book Nos. 51-66) : '14. In view of section 150(2) of the Act, the provisions of subsection (1) of section 150 of the Act is not applicable in respect of the assessment year in which the assessment, reassessment or re-....
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....e time when the order, which was the subject-matter of appeal, reference or revision was made, by reason of the time limits fixed under section 153 for making the reassessment, it would be seen that sub-section (2) of section 150 does not refer to section 153. It only refers to any other provisions limiting the time within which any action for assessment, reassessment or re-computation may be taken. The word 'taken' refers only to initiation of proceedings and not to completion. The time limit for initiation of such proceedings are contained in sections 149 and 150 while the time limit for completion of such proceedings are mentioned in sub-sections (2) and (3) of section 153 just as section 150 is the proviso to section 149, sub-section (3) of section 153 is a proviso to sub-section (2) thereof. We find that the plain language of sub-section (2) of section 150 clearly restricts the application of subsection (1) of section 150 to enable the authorities to reopen the assessments which have not already become final on the expiry of the period of limitation prescribed under section 149(2) of the Act. 15. In the light of above discussion in respect of provisions of sec....
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.... can belong either to A or B and to no one else, a finding that it belongs to B or does not belong to B would be determinative of the issue whether it can be treated as A income. A finding respecting B is intimately involved as a step in the process of reaching the ultimate finding respecting A. If, however, the finding as to A liability can be directly arrived at without necessitating a finding in respect of B, then finding made in respect of B is an incidental finding only. It is not a finding necessary for the disposal of the case pertaining to A. The same principles seem to apply when the question is whether the income under enquiry is taxable in the assessment year under consideration or any other assessment year. As regards the expression "direction" in section 153(3)(ii) of the Act, it is now well settled that it must be an express direction necessary for the disposal of the case before the authority or court. It must also be a direction which the authority or court is empowered to give-while deciding the case before it.' 3. That the reassessment proceedings consequent to aforesaid illegal 'direction' by the learned Commissioner of Income-tax (Appeals)-I....
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....he Income-tax Act, 1961, therefore, such 'direction' is liable to be expunged and deleted from the first appellate order dated May 3, 2019. 3. That without adjudicating the specific grounds raised by the appellant relating to merits of additions/disallowance made by learned Assessing Officer, the learned Commissioner of Income-tax (Appeals)-II, Kanpur has erred in law and on facts in forming his 'view' on such issues and such 'view' cannot be treated as 'Finding' in terms of section 153 of the Income-tax Act, 1961. Therefore, such 'view', 'finding' and 'direction' contained in para. 5.5 of the first appellate order dated May 3, 2019 is liable to be deleted and expunged. 4. That the order of the learned Commissioner of Income-tax (Appeals)-II, Kanpur is arbitrary, biased and against the principles of natural justice and equity. 4. The assessee had filed his return of income for the assessment year 2011-12 on March 23, 2012 and the assessment proceedings under section 147 of the Act were initiated by issuing notice under section 148 of the Act, dated March 26, 2018. Vide order (APB : 4-7) dated August 21, 20....
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....tion of the Assessing Officer to do so. The Department is not in appeal. Thus, the assessment stands annulled for all intents and purposes. The learned Commissioner of Income-tax (Appeals), while annulling the assessment, has directed the jurisdictional Assessing Officer to execute remedial action under section 148 of the Act, since in his (the learned Commissioner of Income-tax (Appeals)'s) view, there is strong case of escapement of income under section 50C of the Act. The question is whether this action of the learned Commissioner of Income-tax (Appeals) is correct as per law. 10. The assessment year in question is assessment year 2011-12. The order passed by the learned Commissioner of Income-tax (Appeals) is dated May 3, 2019. Section 150 of the Act relates to cases where assessment is in pursuance of an order on appeal, etc. According to section 150(1) of the Act, a notice under section 148 may be issued at any time for the purpose of making an assessment in consequence of or to give effect to any finding or direction contained in an order passed on appeal. Section 150(2) of the Act, however, provides that the provisions of section 150(1) of the Act shall not apply in ....