TaxTMI 
TaxTMI 
2021 (4) TMI 681
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....ught to have appreciated that the order of block assessment passed in terms of section 158 BC read with section 143(3)/254 of the Act was passed out of time, invalid, passed without Jurisdiction and not sustainable both on facts and in law. 3. The DCIT failed to appreciate that the findings recorded in para 2.5 of the impugned order in rejecting the contentions with regard to the provisions governing the limitation prescribed for completing the block assessment were wrong, erroneous, unjustified, incorrect, invalid and not sustainable both on facts and in law and ought to have appreciated that the misconstruction of the related provisions discussed in the said para 2.5 would justify the stand of the appellant in substantiating the limitation prescribed in section 158BE of the Act while vitiating the related findings recorded by him. 4. The DCIT failed to appreciate that in any event the impugned order in giving effect to the order of the jurisdictional Bench or the Income Tax Appellate Tribunal dated 4.10.2000 was not passed in accordance with law/not in accordance with the purpose for which the entire matter was remanded back to his file and ought to have appreci....
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....ading impact in cash flow in para 6.2 of the impugned order or the relevant assessment years comprised in the block period under consideration and consequently erred in recasting the cash flow forming part of each of the assessment years comprised in the block period under consideration without assigning proper reasons and justification. 11. The DCIT failed to appreciate that the computation of the assessable income for the assessment year 1987- 88 comprised in the block period under consideration in para 7 of the impugned order on various facets was wrong. erroneous, unjustified incorrect, invalid and not sustainable both on facts and in law. 12. The DCIT failed to appreciate that the computation of the assessable income for the assessment year 1988-89 comprised in the block period under consideration in para 8 of the impugned order on various facets was wrong, erroneous, unjustified, incorrect, invalid and not sustainable both on facts and in law. 13. The DCIT failed to appreciate that the computation of the assessable income for the assessment year 1989- 90 comprised in the block period under consideration in para 9 of the impugned order on various fac....
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.... of the impugned order as part of the computation of undisclosed income for the assessment year 1993-94 comprised in the block period under consideration pertaining to the gifts received at the time of marriage as against the claim of receiving such gifts aggregating to Rs. 5,10,000/- on the application of section 68 of the Act without assigning proper reasons and justification. 21. The DCIT erred in bringing to tax Rs. 26,25,000/- as the presumed investment in purchase of five tippers in recording wrong and erroneous findings from para 13.4 to para 13.7 of the impugned order in computing the undisclosed income for the assessment year 1993-94 comprised in the block period under consideration without assigning proper reasons and justification. 22, The DCIT erred in making the disallowance of Rs. 1,68750/- being the rental charges paid for hiring the tippers in consequence to the addition made in presuming the appellants ownership of the tippers resulting in separate addition in the computation of undisclosed income for the assessment year 1993-94 comprised in the block period under consideration without assigning proper reasons and justification. 23. The D....
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....95-96 comprised in the block period under consideration, the consequential additions made as part of the computation of undisclosed income for all the assessment years comprised under the block period under consideration were wrong, erroneous, unjustified, incorrect, invalid and not sustainable both on facts and in law. 30. The DCIT erred in adding back Rs. 2,41,82,880/- being the amount presumed to be spent for acquiring PR status at Singapore in para 15.2 to para 15.9 of the impugned order as unexplained investment on the application of section 69 of the Act in the computation of undisclosed income relating to the assessment year 1995-96 comprised in the block period under consideration without assigning proper reasons and justification. 31. The DCIT failed to appreciate that in the absence of seized materials, the addition made in this regard on presumption of facts was completely unjustified and ought to have appreciated that the definition of undisclosed income incorporated in Chapter XIVB of the Act was completely overlooked and brushed aside. 32. The DCIT erred in adding back Rs. 24,00,000/- as unexplained expenditure u/s 69C of the Act pertaining ....
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....unexplained investment in the computation of undisclosed income for the assessment year 1995-96 comprised in the block period under consideration without assigning proper reasons and justification. 39. The DCIT failed to appreciate that having not brought on any material comprised in the seized record to substantiate the presumption of facts of investment in UK by repeating the first block assessment order, the assessment of presumed investment on various facets should be reckoned as bad to law. 40. The DCIT failed to appreciate that having noticed the fact of stay of trial of the proceedings initiated by the ED, the addition made for the presumed investment on various grounds was were wrong, erroneous, unjustified, incorrect, invalid and not sustainable both on facts and in law. 41. The DCIT failed to appreciate that the order of Enforcement Directorate had not reached finality and ought to have appreciated that the findings in the said order on various facets were wrong, erroneous, unjustified, incorrect, invalid and not sustainable both on facts and in law. 42. The DCIT erred in estimating the income at 8% of the said investment on presumption....
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....d, incorrect, invalid and not sustainable both on Facts and in law. 48. The DCIT railed to appreciate that having noticed the scope of the undisclosed income Chapter XIVD of the Act especially the definition of undisclosed income inbuilt therein, the additions made and disputed in the present appeal were wrong, erroneous, unjustified, incorrect, invalid and not sustainable both on facts and in law. 49. The DCIT railed to appreciate that there was no proper opportunity given before passing the impugned order and any order passed in violation of the principles of natural justice is nullity in law. 50. The Appellant craves leave to file additional grounds/arguments at the time of hearing." 3. Brief facts of the case are that the assessee is an individual engaged in the business of contract work for earth moving. He was proprietor of TVC Packers, partner of M/s. Vivek Finance and management Services and also director of M/s. TVC Engineering Pvt.Ltd. & M/s. Emerald Promoters Pvt.Ltd. The Enforcement Directorate, Chennai has launched investigation against the assessee for alleged violation of Foreign Exchange Regulation Act. He was also detained under COFEPO....
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....ome Tax Act,1961 and determined undisclosed income of Rs. 57,43,79,390/- for the block period by making various additions, including additions towards investments for acquiring PR status at Singapore, investments in business concerns at U.K, investments in M/s.Micom Leather Export Ltd. and addition towards alleged travel expenses to abroad. 5. The assessee has challenged the block assessment order dated 30.07.1997 before the ITAT. The ITAT vide its order dated 04.10.2010 in IT(SS)A No.163/Mds/1997 has set aside the assessment and directed the Assessing Officer to redo the assessment, after taking into consideration all the relevant materials connected to the proceedings and strictly following principles of natural justice and further, giving reasonable and sufficient opportunity to the assessee. Pursuant to the order of the Tribunal, the Assessing Officer had initiated proceedings to complete set aside assessment proceedings. During the course of assessment proceedings, the assessee vide its letters of even dated had requested the Assessing Officer to furnish copies of documents requisitioned from Enforcement Directorate including statements recorded from him and his associates ....
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....ection 264 setting aside or cancelling assessment to one year from two years from the end of the financial year in which said order is received by Chief Commissioner / Commissioner. 6. The Assessing Officer, after considering relevant submissions of the assessee has rejected legal ground taken by the assessee challenging block assessment proceedings in light of documents requisitioned u/s.132A and has also rejected another contention of the assessee regarding limitation in light of provisions of section 153(2A) of the Act on the ground that sub-section (2A) to section 153 enables the Assessing Officer to complete the assessment at any time before expiry oftwo years from the end of financial year in which the order passed u/s.146 or 250, 254 /263 /264, as the case may be received by CIT/CCIT. Since, the order passed by the Tribunal on 04.10.2010 was received by O/o. CIT on 10.11.2000, the Assessing Officer shall have time limit upto 31.03.2003 to complete the assessment. Further, since the assessee has challenged the proceedings before the Hon'ble High Court and got stay for proceedings, as per Explanation (ii) period of operation of stay shall be excluded from limitation and if ....
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....the end of the financial year in which a return or a revised return relating to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, is filed under sub-section (4) or sub-section (5) of section 139, whichever is later. (2) No order of assessment, reassessment or recomputation shall be made under section 147 after the expiry of two years from the end of the financial year in which the notice under section 148 was served: Provided that where the notice under section 148 was served on or before the 31st day of March, 1987, such assessment, reassessment or recomputation may be made at any time up to the 31st day of March, 1990. (2A,) Notwithstanding anything contained in sub-sections (1)and (2), in relation to the assessment year commencing on the 1st day of April, 1971, and any subsequent assessment year an order of fresh assessment under section 146 or in pursuance of an order under section 250, section 254, section 263 or section 264, setting aside or cancelling an assessment, may be made at any time before the expiry of two years from the end of the financial year in which the order under section 146 cancelling the....
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....he time barring date for passing the order in this case is 31.03.2003 i.e. 2 years from the end of the FY 2000- 2001 (ITAT order dated 10.11.2000) is 3 1.03.2003. But before the expiry of the 2 years the assessee had filed a writ on 08.03.2002. Thus out of 2 years time limit, one year got expired and I am left with one year for passing the order. It is not the case where I am passing an order as per the directions of the Hon'ble ITAT. The assessee had filed a writ and the assessment proceeding have been stayed by the Hon'ble High Court. The present order is being passed by me, in compliance to the direction of the Hon'ble High Court and not of the Hon'ble ITAT. The order passed under the jurisdiction of writ is not covered by sub-section (2A) of section 153. If the provisions of sub-section (2A) is analysed carefully then it makes clear that it covers order passed u/s.146 by A.O. or 250/254/263/264 orders by CIT/CCIT and it does not cover order passed by a Court order under the writ jurisdiction. The Hon'ble High Court has dismissed the writ of the assessee vide order dated 14.12.2018, which was received in the office of the PCIT on 13.02.2019.As discussed in the ....
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....any time limit." Indeed, Section 153, as it stood at that time, did not prescribe any time limits. Section 153 (3) (ii), in particular, did not require the order passed thereunder to be issued within any particular time limit. The Hon'ble High Court observed that there is a distinction between an 'assessment' that is set aside and an 'assessment order' being set aside. When the assessment on an issue is set aside and the matter remanded, with a direction that the issue has to be determined afresh, Section 153 (2A) of the Act would get attracted. The Hon'ble High Court noted that along with the insertion of sub-section (2A), sub-section (3) underwent a simultaneous change. It was expressly made "subject to the provisions of sub-section (2A)." This meant that Section 153(3) would thereafter apply only to such cases where Section 153(2A) did not apply. In other words, in all instances of an AO having to pass a fresh assessment order upon remand where Section 153(2A) would apply, the AO would be bound to follow the time limit imposed by sub-section (2A). Where the AO was only giving effect to an appellate order, then Section 153 (3) (ii) of the Act would apply" ....
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....ent is brought into statute to cover orders passed on or after 01.04.2000, which is clearly evident from the proviso inserted to clarify the purpose of amendment, as per which where an order u/s.250 or 254 is received by Chief Commissioner / Commissioner on or after 01.04.1999, but before 01.04.2000, such an order of afresh assessment may be made at any time upto 31.03.2002. Therefore, from the amended provisions of section 153(2A), time limit for completion of set aside assessment proceedings has been reduced to one year from the end of financial year in which such order has been received by O/o. Chief Commissioner / Commissioner. However, the Assessing Officer on a mistaken of law has considered the pre-amended time limit available as per section 153(2A) by grossly overlooking amendment brought in by the Finance Act, 2000, restricting time limit to one year from the end of financial year in which order is received by CIT. If one year period of limitation is considered, as per amended provisions of section153 (2A), then the order passed by the Assessing Officer on 31.12.2019 is clearly barred by limitation and liable to be quashed. 8. The ld. AR further referring to dates and e....
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....ted that the Assessing Officer, while erroneously taking time limit to give effect to the order of the Appellate Tribunal has placed reliance on said sub-section (3) for the purpose of validating his order passed beyond the time limit prescribed. Therefore, he submitted that assessment order passed by the Assessing Officer is clearly barred by limitation and not sustainable in law. In this regard, he relied upon the decision of Hon'ble Delhi High Court in the case of CIT Vs Bhan Textiles P.Ltd (2008) 300 ITR 176 (Del) and the decision of ITAT., Delhi Bench in the case of Awanindra Singh (2019) 104 taxmann.com 171. 10. The learned DR, on the other hand, supporting the order of the Assessing Officer submitted that there is no merit in the arguments of the learned A.R for the assessee that assessment order passed by the Assessing Officer is barred by limitation, because the Assessing Officer has passed order within time limit as provided u/s.153(3) of the Act, where it is clearly envisaged that if an order is passed in consequence of or to give effect to any finding or direction contained in the said order under section 250/254/263 or 264 or in an order of any court in a proceed....
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.... be answered and for this purpose, it is necessary to understand provisions of Section 153 of the Income Tax Act, 1961. For better understanding, we reproduce provisions of Section 153 of the Act, stood at relevant time, which reads as under:- "153. Time limit for completion of assessments and reassessments.-(1) No order of assessment shall be made under section 143 or section 144 at any time after the expiry of- (a) two years from the end of the assessment year in which the income was first assessable ; or (b) one year from the end of the financial year in which a return or a revised return relating to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, is filed under sub-section (4) or sub-section (5) of section 139, whichever is later: Provided that in case the assessment year in which the income was first assessable is the assessment year commencing on or after the 1st day of April, 2004 but before the 1st day of April, 2010, the provisions of clause (a) shall have effect as if for the words "two years", the words "twenty-one months" had been substituted: Provided further that in case the ass....
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....ided also that where the notice under section 148 was served on or after the 1st day of April, 2006 but before the 1st day of April, 2010 and during the course of the proceedings for the assessment or reassessment or recomputation of total income, a reference under sub-section (1) of section 92CA- (i) was made before the 1st day of June, 2007 but an order under sub-section (3) of that section has not been made before such date; or (ii) is made on or after the 1st day of June, 2007, the provisions of this sub-section shall, notwithstanding anything contained in the second proviso, have effect as if for the words "one year', the words "twenty-one months" had been substituted: Provided also that where the notice under section 148 was served on or after the 1st day of April, 2010 and during the course of the proceeding for the assessment or reassessment or recomputation of total income, a reference under sub-section (1) of section 92CA is made, the provisions of this sub-section shall, notwithstanding anything contained in the second proviso, have effect as if for the words "one year", the words "two years" had been substituted. (2A) Notwithstanding ....
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....n (3) of section 92CA has not been made before such date; or (ii) is made on or after the 1st day of June, 2007, the provisions of this sub-section shall, notwithstanding anything contained in the second proviso, have effect as if for the words "one year". the words "twenty-one months" had been substituted: Provided also 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, 2010, and during the course of the proceeding for the fresh assessment of total income, a reference under subsection (1) of section 92CA is made, the provisions of this sub-section shall, notwithstanding anything contained in the second proviso, have effect as if for the words "one year", the words "two years" had been substituted. (3) The provisions of sub-sections (1), (1A), (lB) and (2) shall not apply to the following classes of assessments, reassessments and re-computations which may, subject to the provisions of sub-section (2A), ....
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....n which the order setting aside such direction is received by the Principal Commissioner or Commissioner, or (iv) the period commencing from the date on which the Assessing Officer makes a / reference to the Valuation Officer under sub-section (1) of section 142A and ending with the date on which the report of the Valuation Officer is received by the Assessing Officer, or (iva) the period (not exceeding sixty days) commencing from the date on which the Assessing Officer received the declaration under sub-section (1) of section 158A and ending with the date on which the order under sub-section (3) of that section is made by him, or (v) in a case where an application made before the Income-tax Settlement Commission under section 245C is rejected by it or is not allowed to be proceeded with by it, the period commencing from the date on which such application is made and ending with the date on which the order under sub-section (1) of section 245D is received by the Principal Commissioner or Commissioner under sub-section (2) of that section, or (vi) the period commencing from the date on which an application is made before the Authority for Advance ....
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....ation under sections 149, 153B, 154, 155, 158BE and 231 and for the purposes of payment of interest under section 243 or section 244 or, as the case maybe, section 244A, this proviso shall also apply accordingly. Explanation 2.-Where, by an order referred to in clause (ii) of sub-section (3), any income is excluded from the total income of the assessee for an assessment year, then, an assessment of such income for another assessment year shall, for the purposes of section 150 and this section, be deemed to be one made in consequence of or to give effect to any finding or direction contained in the said order. Provided that in respect of an order of assessment relating to the assessment year commencing on the 1st day of April, 2018, the provisions of this sub-section shall have effect, as if for the words 'twenty-one months", the words "eighteen months" had been substituted: Provided further that in respect of an order of assessment relating to the assessment year commencing on or after the 1st day of April, 2019, the provisions of this sub-section shall have effect, as if for the words "twenty-one months", the words "twelve months" had been substituted.] ....
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....d before the said order was passed." 12. The provisions of section 153 relating to time limit for completion of assessment and reassessment has been amended so as to provide time limit for completion of fresh assessment to be made in a case (1) where original assessment made u/s. 144 has been cancelled by the Assessing Officer u/s.146 or (2) original assessment is set aside or cancelled in appeal by the Appellate Commissioner or Appellate Tribunal or in revision by Commissioner. For this purpose sub-section (2A) has been inserted to section 153 of the Act. Under this sub-section, fresh assessment in case mentioned at (1) may be made at any time before expiry of two years from the end of the financial year, in which original assessment was cancelled by the Assessing Officer u/s.146 of the Act. In a cases mentioned at (2), fresh assessment may be made at any time before expiry of two years from the end of the financial year in which order of the Appellate Commissioner or Appellate Tribunal is received by Commissioner or as the case may be, order in revision is passed by Commissioner. In the above circumstances, assessment may be completed within above mentioned time limit, even if....
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....nd the Hon'ble Madras High Court at the fag end of the limitation period, namely on 08.03.2002 stayed block assessment proceedings and such stay was in force upto 14.12.2018, i.e till disposal of Writ Petition filed by the assessee. Because of stay, the limitation period for completing fresh block assessment accordingly, was extended in view of the exclusion of such period as contemplated in Explanation 1(ii) to section153 of the Act. Further, when the Hon'ble High Court passed stay order on 8-3-2002, the balance time available with the AO for completion of assessment was 23 days. The Hon'ble High Court in W.P.No7623 of 2002 has vacated stay in view of the disposal of Writ Petition filed by the assessee on 14.12.2018 and such order was received by the office of the CIT on 13-02-2019 and as a consequence, the Assessing Officer should get clear 60 days from the date of receipt of order for completing fresh assessment in light of proviso (ii) below Explanation 1 to section 153 of the Act. Therefore, even if 60 days is excluded, assessment order ought to have been completed on or before 14.04.2019. But, in this case the Assessing Officer has passed assessment order on 31.12.2019 and....
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....ays as per Explanation 1(ii) to section 153 of the Act. If such 60 days is considered from the date of receipt of order of High Court, i.e 13.02.2019, the Assessing Officer ought to have passed the order on 14.04.2019. Since, the impugned order giving effect was passed on 31.12.2019, in our considered view, which is beyond 60 days time available for the Assessing Officer and hence, it can be safely concluded that assessment order passed by the Assessing Officer is barred by limitation. 15. The Assessing Officer, while passing giving effect order rejected the plea of the assessee, application of provisions of section 153(2A) of the Act, on the ground that proviso to subsection (3) to section 153 of the Act will be applicable and as per said section, there is no time limit prescribed for completing the order. According to the Assessing Officer, he has completed assessment, as per direction of the Hon'ble High Court in writ jurisdiction, but not as per order of ITAT in setting aside assessment order vide its order dated 04.10.2000.The Assessing Officer has discussed the issue in light of decision of Hon'ble Delhi High Court in the case of Nokia Enterprises vs. DCIT(supra) and held ....
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....pellate authority makes a direction or finding in connection with any issue or any person, then such finding or direction needs to be followed by the Assessing Officer in true spirit and hence, a provision is provided by way of sub-section (3) without any limitation, because in such cases the role of assessing officer is limited to give effect to the findings or direction of appellate authority or court. But, in a situation, where order is set aside without any restriction as to finding or direction, then such an order is set aside in toto and the Assessing Officer shall complete the assessment de novo, as if such assessment was not made in earlier occasion. In such situation, time limit prescribed u/s.153(2A) is applicable, but not provisions of section 153(3) of the Act. 17. In this case, the Assessing Officer has applied provisions of section 153(3) of the Act, in view of the dismissal of writ petition of the assessee by the Hon'ble Madras High Court. However, the fact remains that impugned order was passed to giving effect to the order of Appellate Tribunal dated 04.10.2000 passed in first round and not at instance of Madras High Court decision in permitting the Assessing....
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....instances of Assessing Officer having to pass a fresh assessment order upon remand, where section 153(2A) would only applicable, the Assessing Officer would be bound to follow the time limit imposed by sub-section (2A), whereas the Assessing Officer was only giving effect to an appellate order on any finding or direction, then section 153(3) of the Act would apply. In this case, on perusal of order of the Tribunal dated 04.10.2000, it is very clear that entire assessment order has been set aside to the file of the Assessing Officer for de novo assessment because of fundamental objection raised by the assessee in light of principles of natural justice and under those facts, the Tribunal has made categorical observation that because of violation of principles of natural justice, assessment has been set aside for de novo consideration. The Tribunal further observed that while doing set aside assessment proceedings, the Assessing Officer was directed to consider all materials available in respect of various issues and further directed the Assessing Officer to give an opportunity of hearing to the assessee. The meaning thereby is that assessment is being set aside for de novo assessment....
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....the old provision of Section 153(2A) would be applicable in respect of cases where the order of set aside is received by the Commissioner before the 1st day of April, 2000. By necessary implication, it has to be held that when the order of set aside under Section 250 by the CIT(A) is received by the Commissioner or the Chief Commissioner after the 1st day of April, 2000, the new provision would be applicable. In the CBDT's Circular which is the explanatory notes on the provisions relating to direct taxes in Finance Act, 2001, again, the CBDT has clarified that where the appellate or revisionary order mentioned in Section 153(2A) has been received or passed, as the case may be, on or after 1st day of April, 1999 but before the 1st day of April, 2000, the existing time limit will continue. Therefore, in our opinion, the existing time limit i.e., the period of limitation of two years would be applicable only where the 28 ITA-300/Del/2001 & 5 others appellate or revisionary order setting aside an assessment is received or passed before 1st April, 2000. If the contention of the Revenue that the amended provision of Section 153(2A) would be applicable in respect of the cases where the ap....
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....ase in respect of the matters covered in the questionnaire. This is so because the appellant could have thought that the proceedings may be dropped after hearing the preliminary objection. Though it is mentioned in the note that the authorised representative did not agree to file any detail. Yet the Assessing Officer could have granted one more opportunity, particularly when the matter had remained pending up to March 31, 1999. It is also seen that the assessment was taken up on March 5, 1999, while the initial notice had been issued on November 27, 1997, and there was no follow up of the case in the interregnum. In view of this, I am of the view that the learned Assessing Officer should have granted one more opportunity to the appellant on proposed additions. Therefore, it is held that it will be the interest of the justice to restore the matter to the file of the Assessing Officer, so that one more opportunity may be given to the appellant to file evidence and state his case in respect of the matters covered in the show-cause notice dated March 5, 1999. Thereafter, the learned Assessing Officer may pass order under section 144 taking the explanation into account. Therefo....
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.... view of the above, we quash the assessment order dated 31st March, 2003. Once the impugned assessment order is 31 ITA-300/Del/2001 & 5 others quashed, the other grounds raised in the assessee's appeal do not require any adjudication." 20. In this view of the matter and considering facts & circumstances of the case, we are of the considered view that provisions of section 153(3) of the Act has no application and provisions of section 153(2A) should be applied as discussed in preceding paragraphs. As per amended provisions of section 153(2A) of the Act, time limit for completion of assessment in pursuant to order of the appeal Commissioner u/s 250 or Appellate Tribunal u/s. 254 is one year from the end of the financial year in which such an order was received by Office of Commissioner / PCIT. In this case, order of the Appellate Tribunal was passed on 04.10.2000 and such an order was received by the Office of the Commissioner on 10.11.2000. As per the amended provisions of section 153(2A), the impugned assessment order ought to have been passed on or before 31.03.2002. Because of the intervening order of the High Court in writ and stay of proceedings on 08.03.2002 and subsequent ....