TaxTMI 
TaxTMI 
2020 (1) TMI 772
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....ed in law by saying that as per the Finance Act, 2012 as enacted by the Parliament, Section 149(1)(c) was made effective prospectively from 01.07.2012 and thereby also has erred in law by observing that there was nothing expressly provided by the amending Act, which indicate Legislative mind to make the provision applicable to those proceedings which had become barred by limitation on 0-1.07.2012. 3.that the Ld. CIT(A) has erred in law in holding that the provision u/s. 149(1)(c) are retro-active in operation inasmuch as they are applicable for AY 2006-07 onwards and in such sense, the assessment order passed u/s. 147 on 19.01.2015 for AY 2005-06 was void ab initio." 3. The sole issue involved in the grounds of appeal of Revenue is against the action of the Ld. CIT(A) in holding that the proceedings u/s. 147 of the Income-tax Act, 1961 (hereinafter referred to as the "Act") become time barred prior to 01.07.2012 could not be revived by the amendment in section 149(1)(c) of the Act. Therefore, according to him the assessment reopened by the AO on 19.08.2013 was barred by limitation and accordingly, the Ld. CIT(A) cancelled the order u/s. 147/143(3) of the act dated 19.01.2015 sin....
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....osit were not reflected in the balance sheet of the assessee and not offered to tax as income for the year in his return of income. In view of the above, the AO issued notice u/s. 148 on 19.08.2013 seeking to reopen the assessment for the AY 2005-06 and required the assessee to furnish a return of income in response to the said notice. In the objections, the assessee challenged the validity of the notice issued u/s. 148 arguing that the proceedings u/s. 147 for the AY 2005-06 had become time barred on 31.03.2012 and hence, the notice u/s. 148 issued on 19.08.2013 was without jurisdiction and ab initio void. According to the assessee the clause (c) of sec. 149(1) inserted by the Finance Act, 2012 extending the time limit for reopening of assessment from six years to sixteen years could not come to the rescue of the AO for the assessment year 2005-06 since the proceedings u/s. 147 for the relevant year had become time barred on 31.03.2012 whereas section 149(1)(c) of the Act came into force w.e.f. 01.07.2012. In support of this proposition the assessee relied on the judgment of Hon'ble Supreme Court in the case of S. S. Gadgil Vs. Lal & Co 53 ITR 231. Inspite of the above, the AO pr....
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....ecome time barred. In the course of appellate proceedings the Ld. AR of the appellant made extensive arguments claiming that in terms of Section 149 as was In force, the assessment proceedings for AY 2005-06 could not be reopened by the Department after 01.04.2012 by taking recourse to extended limitation period prescribed in Section 149(1)(c) of the Act. 3. From the submissions of the Ld. AR, I thus note that the only material issue to be decided in the present appeal is whether the initiation of reassessment proceedings u/s 148 on 19.08.2013 could be said to be within the period of limitation as prescribed in Section 149 of the Act or whether on the facts obtained in the present case it can be said that the reassessment proceedings had become time barred on 31.03.2012 and therefore Initiation of proceedings u/s 147 on 19.08.2013 was hit by the law of limitation. 4. Section 149(1) of the Income-tax Act, 1961 as now in force reads as follows: (1) No notice under section 148 shall be issued 47 for the relevant assessment year,- (a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under Clause (b) or clause (c); (b) if four year....
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....e amendment in Section 149(1) was made effective prospectively from 01.07.2012. In the above factual background therefore it is necessary to ascertain whether the Ld. AO could be held to be justified in reopening the assessment for AY 2005-06 which became time barred on 31.03.2012 and on that date admittedly clause (c) of Section 149(1) was not in force. 6. Provisions of the Income-tax Act, 1961, as were in force on 31.03.2012; assessment of any assessee could be reopened by the ld. AO under Section 147 of the Act by issuing notice u/s 148 within the time prescribed in Section 149 of the Act. As per Section 149, no assessment could be reopened after the expiry of period of six years from the end of the relevant assessment year. As such the assessment for AY 2005-06 could have been legally reopened at any time till 31.03.2012 and not thereafter. From the facts on record it Is evident that no notice u/s 148 was issued by the Ld. AO for AY 2005-06 till 31.03.2012 even though the search in the appellant's case was conducted on 22.09.2011 on the basis of information available with the Department that Mr. LalitMohanka maintained undisclosed account with HSBC Bank, Geneva. I further....
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....05.01.1963 by which time the Income-tax Act, 1922 was repealed and Income-taxAct, 1961 had come in force with effect from 01.04.1962. Under the Income-tax Act, 1961 the period of limitation was enlarged from 8 years to 16 years and therefore taking benefit of the enlarged period the Ld. AO issued a show cause on 04.01.1963 and subsequently issued the notice u/s 148 of the new Income-tax Act, 1961 on 13.11.1963. The assessee challenged the validity of the notice and the consequent reassessment proceedings by filing a civil application. The Hon'ble Gujarat High Court allowed the assessee's plea challenging the validity of the notice and held that on true construction of Section 297(2)(d)(ii) of the 1961 Act, the ITO could not issue a notice u/s 148 in order to reopen the assessment in a case where the right to reopen the assessment was barred under the old Act at the time when the new Act came into force. According to High Court when the period for reopening the assessment under Section 34(1)(a) of the old Act had already lapsed at the time when the new Act commenced, then in such case ITO was not competent to issue a notice u/s 148 of the new Act so' as to reopen the a....
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....ith non-residents and therefore an SCN was issued on 12.03.1957 directing the assessee to show cause why it should not be treated as an agent of non-resident parties for AY 1954-55. The assessee not only denied that it was an agent of non-residents but also contended that the action under Section 43 was time barred. The Ld. AO however issued notice u/s 34 of the 1922 Act on 27.03.1957 treating the assessee to be agent of non-residents after rejecting assessee's contention that proceedings had become time barred. Relying on proviso to Section 34(1)(b)(iii) inserted by Finance Act, 1956; the ITO held that the Legislature had extended the time limit in clear and express terms to cover action u/s 34 against agents of nonresidents. The reopening was challenged in writ petition before the High Court. The Bombay High Court held that on the date when the notice u/s 34 was Issued, by the reason of the proviso the notice was out of time and the period provided thereby could not be extended by the Finance Act, 1956 so as to authorize AO to issue a notice for assessment treating the assessee to be agent of non- resident. On appeal the Supreme Court while upholding the judgment of Bombay ....
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.... effective from 12.05.2000. The assessee pleaded that under the amended provisions of Section 116, the claim furnished was within period of limitation and therefore the rebate claim should be allowed. The assessee's contention was accepted by appellate authorities including High Court, but on appeal the Supreme Court overruled the judgment of the High Court and held that since the period of limitation prescribed in Section 11B had already expired prior to amendment coming into effect, the amendment Act did not and could not revive dead proceedings. In arriving at such conclusion, the Apex Court relied on numerous judgments rendered on the subject. The relevant findings of the Apex Court were as follows: 10. We have heard the learned counsel for the parties and Shri Bagaria, the learned amicus curiae at some length. There is no doubt whatsoever that a period of limitation being procedural or adjectival law would ordinarily be retrospective in nature. This, however, is with one proviso super added which is that the claim made under the amended provision should not itself have been a dead claim in the sense that it was time-barred before an amending Act with a larger period of l....
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....were rightly quashed by the Gujarat High Court by the grant of a writ." 10.3 In New India Insurance Co. Ltd v. SmtShaatlMisra, Adult 1975 2 SCC 840, this Court said: (SCC p. 846, para 7) "7 .... '(2) ... The new law of limitation providing a longer period cannot revive a dead remedy. Nor can It suddenly extinguish vested right of action by providing for a shorter period of limitation." 10.4 Similarly In T Kallamurthi y. Five GoriIhalkkalWakf 2008 9 SCC 306, this Court said: (SCC p. 322, para 40) "40. In this background, let us now see whether this section has any retrospective effect. It Is well settled that no statute shall be construed to have a retrospective operation until its language Is such that would require such conclusion. The exception to this rule is enactments dealing with procedure. This would mean that the law of limitation, being a procedural law, is retrospective In operation In the sense that It will also apply to proceedings pending at the time of the enactment as also to proceedings commenced thereafter, notwithstanding that the cause of action may have arisen beforethe new provisions came Into force. However, it must be noted that there is an Import....
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....t be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of section 11-b. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. The said enactments including section ll-b of the central excises and salt act and section 27 of the customs act do constitute 'law' within the meaning of article 265 of the constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are self-contained enactments providing for levy, assessment, recovery and refund of duties imposed thereunder. section 11-b of the central excises and salt act and section 27 of the customs act, both before and after the 1991 (Amendment) Act are constitutionally valid ....
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....ssued on 19.08.2013. As per Section 149(1) as was in force till 31.03.2012, the assessment for AY 2005-06 could have been validly reopened by the Ld. AD at any time till 31.03.2012. Admittedly no notice uls 148 was Issued till then. It is true that Finance Bill, 2012 Introduced in Parliament in February 2012 proposed to insert clause (c) in Section 149(1) by which period of limitation for Issuance of notice uls 148 was extended upto sixteen years. However as per the Finance Act, 2012 as enacted by the Parliament, Section 149(1)(c) was made effective prospectively from 01.07.2012. The Notes on Clauses specifically stated that the amended provisions were to come in force with effect from 01.07.2012. I therefore find that there was nothing expressly provided by the amending Act which indicated Legislative mind to make the provision applicable to those proceedings which had become barred by limitation as on 01.07.2012 i.e. the date when the amended" provisions came into force. I agree with the observations of the judicial forums that period of limitation is always part of procedural law and therefore such provisions are generally retro-active in operation. In fact the provisions of S....
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....itted that the account was opened by her husband. She also admitted the fact when her statement was recorded u/s 131 on 18.11.2011. Re- assessment proceeding was initiated by issuing notice u/s 148 on 19.08.2013. Assessment was completed u/s 147/ 143(3) on 19.01.2015 when the aforesaid amount of Rs. 84,07,136/- was added as undisclosed income. Assessee preferred appeal. Ld. CIT(A) vide order dated 28.02.2018 in Appeal No., 932/DCIT. CC-4(4)/CIT(A)-21/KoI/2014-15 has held that the notice u/s 148 was time barred and therefore, assessment order u/s 147 Was void ab initio. The moot point in this case appeared to be the validity of the reassessment proceedings u/s 147 for AY 2005-06 of the captioned assessee in the light of the amended provision u/s 149(1) of the Income Tax Act w.e.f. 01.07.2012 and on the view of the CIT(A) in awarding relief to the assessee that since the time limit for reassessment u/s 147 for AY 2005-06 [being six years, as per pre-amended Section 149(1)] was expired before the said amendment came into force, the department had no power to 'revive' the proceedings for AY 2005-06 as per the amended Section 149(1). The opinion of the department on the ab....
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....ation as on 01.07.2012, therefore, the proceedings for AY 2005-06 cannot be revived under the new law as per the fresh provision u/s 149(1)(c) appear to be illogical and erroneous, Because, if such view is accepted then it would mean that in spite of the new law as per the fresh provision u/s 149(1)(c), the department cannot proceed beyond six years, and that would render the law ineffective and meaningless. This could not have been the legislative intension to bring into force the new provision u/s 149(1)(c) to tackle the monster of foreign black money. In view of the above, it is felt that the decision given by the Ld. CIT(A) is not based on correct appreciation of law and of fact, and therefore, it is prayed before the Hon'ble ITAT, Kolkata that the decision made by the Ld. CIT(A) be reversed. It may kindly be noted that the Finance Bill 2012 was laid on the floor of Lok Sabha as Bill No. 11 of 2012 on 16th March, 2012, as per the recommendation of the President. Further, the explanation under section 149(3) clearly brings out the application of the new sub section 149(1)(c) for not more than 16 years. Explanation - For the removal of doubts, it is hereby clarified that ....
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....he AO for the AYs 200-02 to 2005-06 on 16-02-2016 was legally sustainable. If answer to this question is against the Revenue and in favour of the assessee, then the grounds raised in cross objections become academic. In order to understand the issue we may, at the cost of repetition, refer to the provisions of Section 149 which read as follows: " (1) No notice under section 148 shall be issued for the relevant assessment year,- (a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b) or clause (c); (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year; ~ (c) if four years, but not more than sixteen years, have elapsed from the end of the relevant assessment year unless the income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment. Explanation- for the removal of doubts, it is hereby clarified that provisions of sub-section (1) and (3) has amen....
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....se of taking an action or for the purpose of interpreting the law, the foundation is the main section and the Explanation is only a subordinate part. The object of the Explanation is to understand the relevant provision of the Act in its true light but the Explanation does not ordinarily enlarge the scope of the original section which it explains. The Explanation should therefore be read so as to harmonize with and clear up an ambiguity, if any, in the main section and it should not be so construed as to widen the ambit of the Section to which it is appended. It is an error to explain the Explanation with the aid of the Section to which it is appended and any such case, will reverse their roles. It is to be borne in mind that an Explanation to a section is not a substantive provision by itself and it merely explains the meaning of the words or to clarify the ambiguities, if any. It is always intended that Explanation added to a statutory provision is not a substantive provision of the statute and therefore it cannot take away a statutory right with which any person under the law has been clothed by the principal provision or set at nought the working of an Act by becoming an hindra....
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....ressly so provide or unless there is a necessary implication, retrospective operation should not be given to the statute so as to affect, alter or destroy any right already acquired or to revive any remedy already lost by efflux of time. The language of the new section must be read as applicable only to those cases where the right of the ITO to reopen the assessment was not barred under the repealed section. The new statute does not disclose in express terms or by necessary implication that there was a revival of the right of the ITO to reopen an assessment which was already barred under the old Act. It must be held that, on a proper construction of section 297(2)(d )(ii) of the new Act, the ITO could not issue a notice under section 148 in order to reopen the assessment of an assessee in a case where the right to reopen the assessment was barred under the old Act at the date when the new Act came into force. It followed, therefore, that the notices dated 13- 11-1963 and 9-1-1964, issued by the ITO, were illegal and ultra vires and were rightly quashed by the High Court by the grant of a writ." (emphasis supplied) 16. This principle was reiterated by the Honble Apex Court in it....
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.... 1956, only a limited retrospective operation i.e up to 1-4-1956, only. That provision must be read subject to the rule that in the absence of an express provision or clear implication, the legislature does not intend to attribute to the amending provision a greater retrospectivity than is expressly mentioned, nor to authorise the Income Tax Officer to commence proceedings which before the new Act came into force had by the expiry of the period provided, become barred." 10.2 To similar effect is the judgment in ITO v. InduprasadDevshanker Bhatt AIR 1969 SC 778. The Court held: (AIR p. 783, para 6) "6. In our opinion, the principle of this decision applies in the present case and it must be held that on a proper construction of section 297(2)(d)(ii) of the new act, the Income Tax Officer cannot issue a notice under Section 148 in order to reopen the assessment of an assessee in a case where the right to reopen the assessment was barred under the old Act at the date when the new Act came into force. It follows therefore that the notices dated 13-11- 1963 and 9-1-1964 issued by the Income Tax Officer, Ahmedabad were illegal and ultra vires and were rightly quashed by the Gujarat H....
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....'ble Supreme Court in the case of CIT Vs Vatika Township Pvt Ltd (supra). In this case the Hon'ble Apex Court was called upon to interpret whether the proviso to Section 113 enacted by the Finance Act, 2002 levying surcharge on the tax payable under block assessment, was clarificatory and therefore retrospective in operation or whether it was applicable prospectively. The Division Bench of the Hon'ble Supreme Court in its earlier judgments had held the said proviso to be retrospective in operation because in its opinion the said proviso was clarificatory in nature. However, later on the issue was referred to the Larger Bench because the earlier view was doubted. While deciding the issue of retrospective operation of the fiscal statute, the Hon'ble Court made the following important observations having bearing on the present case. "31. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the pas....
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....ernment of India v. Indian Tobacco Association [2005] 7 SCC 396, the doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied in the case of Vijay v. State of Maharashtra [2006] 6 SCC 286. It was held that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. However, we are confronted with any such situation here. 34. In such cases, retrospectively is attached to benefit the persons in contradistinction to the provision imposing some burden or liability where the presumption attaches towards prospectivity. In the instant case, the proviso added to Section 113 of the Act is not beneficial to the assessee. On the contrary, it is a provision which is onerous to the assessee. Therefore, in a case like this, we have to proceed with the normal rule of presumption against retrospective operation. Thus, the rule against retrospective operation is a fundamental rule of law that no statute shall be....
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....ii) clarificatory amendments which are retrospective in nature. Thus, it was a conscious decision of the legislature, even when the legislature knew the implication thereof and took note of the reasons which led to the insertion of the proviso, that the amendment is to operate prospectively. Learned counsel appearing for the assessees sagaciously contrasted the aforesaid stipulation while effecting amendment in Section 113 of the Act, with various other provisions not only in the same Finance Act but Finance Acts pertaining to other years where the legislature specifically provided such amendment to be either retrospective or clarificatory. In so far as amendment to Section 113 is concerned, there is no such language used and on the contrary, specific stipulation is added making the provision effective from 1st June, 2002. 19. In the present case we note that the Finance Act, 2012, by which clause (c) was enacted in Section 149(1), also made several other amendments in the Income-tax Act, 1961 and these were made applicable with retrospective effect. For instance, Sections 2(14) & 2(47) which define the words 'capital asset' & 'transfer' were amended with retrospective effect f....
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....For the removal of doubts". It declares that for the purpose of the said section in case of an assessee-company to which second proviso to section 129 (1) of the Companies Act, 2013 is applicable, would have an option for the assessment year commencing on or before 1st April, 2012 to prepare its statement of profit and loss either in accordance with the provisions of schedule III to the Companies Act, 2013 or in accordance with the provisions of the Act governing such company. To our mind, this is some what curious provision. In the original form, sub-section (2) of section 115JB of the Act did not offer any such option to a banking company, insurance company or electricity company to prepare its profit and loss account at its choice either in terms of its governing Act or as per terms of Section 115JB of the Act. Secondly, by virtue of this explanation if an anomaly which we have noticed is sought to be removed, we do not think that the legislature has achieved such purpose. In plain terms, this is not a case of retrospective legislative amendment. It is stated to be clarificatory amendment for removal of doubts. When the plain language of sub-section (2) of Section 115JB did not ....
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....t had not been disclosed, reassessment proceedings were validly instituted." 23. We thus note that before the Hon'ble Delhi High Court, the Revenue had particularly argued that the provisions of Section 149(1)(c) were enacted to empower the Revenue to reopen the assessments for a period of sixteen years prior to 01-07-2012 and such amendment being retrospective in nature, the assessment for AY 1998-99 was correctly reopened. Negating the Revenue's contention, the Hon'ble Delhi High Court held as under: "17. This court is of the opinion that there is no merit in the revenue's contention. In Prithvi Cotton Mills Ltd. v. Broach Borough Municipality [1971] 79 ITR 136 (SC), examined the validity of the retrospective amendment of a statute in light of Article 19(1)(g) of the Constitution of India, i.e. a fundamental right to practice any profession, or to carry on any occupation, trade or business. The court said: "In testing whether a retrospective imposition of a tax operates so harshly as to violate fundamental rights under article 19(1)(g), the factors considered relevant include the context in which retroactivity was contemplated such as whether the law is one of validatio....
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....further note that the Revenue's SLP against the decision of the Hon'ble Delhi High Court was dismissed by the Hon'ble Supreme Court on 05-07-2019. We also find that following the judgment of the Hon'ble Delhi High Court (supra), the coordinate Benches of this Tribunal in the following cases similarly quashed the reassessment proceedings u/s 148 which were initiated for assessment years prior to AY 2006-07 taking aid of Section 149(1)(c) of the Act. − Raju Verma Vs DCIT in ITA Nos.1796 & 1797/Del/2017 dated 09.04.2019 − Ravichandra V Mehta Vs DCIT in ITA Nos.409, 450, 410 and 451/Rjt/2017 dated 25-02- 2019 25. Respectfully following the decisions cited above and for the reasons discussed in the foregoing, we therefore do not see any reason to interfere with the orders of the ld. CIT(A) for the AYs 2001-02 to 2005-06." 9. Since the issue involved in the present appeal and applicable legal provisions governing the same in the assessee's case being identical with the above decision (supra), we have no hesitation in holding that the ld. CIT(A) was justified in holding that the notice dated 19.08.2013issued u/s 148 in respect of AY 2005-06 was time barred and consequen....
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....therefore did not constitute undisclosed income of the assessee for the relevant year. The AO however did not accept the explanation and added the said sum by way of unexplained cash credit in AY 2006-07. Being aggrieved, the assessee preferred an appeal before the Ld. CIT(A), who deleted the impugned addition by observing as under: "I have carefully considered the submissions of the Ld. A.R and perused the relevant provisions of the Act. In these grounds the primary objection of the Ld. AR of the appellant is that the sum of $ 105,000 brought to tax by the Ld. AO was neither deposited in nor Invested through the foreign bank account in the relevant financial year 2005-06 and therefore the Impugned addition of Rs,46,84,050/- was unsustainable. The Ld. AO in the assessment order has taxed the credit entry of $105,000 which is reflected in the bank statement on 31.03.2006, as unexplained income of the appellant. The appellant has however contended that the credit of $105,000 reflected in the bank statement on 31.03.2006 does not represent any fresh deposit or new investment in the foreign bank account made in the year under appeal. The appellant placed on record the copy of bank st....
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....ngly even in the assessment year in question i.e. AY 2006-07, the Ld. AO had assessed the relevant deposits, interest income etc. pertaining to this year which has been elaborately discussed in the assessment order. The limited dispute in these grounds however concern only the AO's action of assessing a credit of $105,000 (equivalent to Rs. 46,84,050/-) as unexplained income of the appellant. 4. From the entries in the bank account, it is noted that the account was opened on 03.08.2004 with 'NIL' balance. On 02.12.2004 there was a deposit of $1,10,133.25 (equivalent to Rs. 48,70,092). On 07.12.2004 a debit entry of $ 105,285.05 was reflected in the bank statement under the narration "P: 105000: Italy:2.5%.31.03.2006:99357". The entry suggested that an investment of $105,000 was made out of the deposit made on 02.12.2004 and that the same was redeemable on 31.03.2006. On 31.03.2006, the redemption proceeds of $ 105,000 was credited in the appellant's bank account under the narration, "REDM: 105000: ITALY 2.5% 31.3.06 : 100,0". The Ld. AO In his remand report although admitted that the credit on 31.03.2006 appeared to have relation with the debit entry on 07.12.2004....
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....ll it have any bearing to bring to tax the said sum in the relevant AY 2006-07, In the circumstances this objection of the Ld. AO to justify the addition of Rs. 46,84,050/- is held to be unjustified. 7. Overall, for the reasons set out above, I hold that the impugned addition, of Rs,46,84,050/- as unexplained income of the appellant for the relevant AY 2006-07 was misconceived and unjustified. The Ld. AO is directed to delete the aforesaid addition. These grounds of appeal therefore stand allowed." 12. Aggrieved by the aforesaid order, the revenue is now in appeal before us. At the time of hearing the Ld. CIT, DR relied on the AO's order. He further claimed that the Ld. CIT(A) was unjustified in granting relief to the assessee by admitting additional evidence in violation of Rule 46A of the Income Tax Rules, 1962 [ herein after the Rules ]and therefore prayed that the matter be restored to the file of the AO for fresh adjudication. Per contra, the ld. AR fully relied on the Ld. CIT(A)'s order and claimed that the relief was not allowed by Ld. CIT(A) by admitting any fresh evidence and moreover the issue was adjudicated after calling for the remand report from the AO. 13. We hav....