M.G.F. Growth Research & Investmart Limited, Ahmedabad V. The Income Tax Officer, Ward-2(1)(4), Ahmedabad

CO 166/AHD/2016

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3829 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 07-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P D SHAH
• Keywords: Period of limitation; Accommodation entries
• Section: 143(3); 68; 148; 15

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD - BENCH A BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.2311/AHD/2016 WITH CO NO.166/AHD/2016 / ASSTT. YEAR: 2009-2010 ITO, WARD - 2(1)(4) AHMEDABAD. VS. M/S.M.G.F. GROWTH RESEARCH AND INVESTMENT LTD. A-32, MASKATI MARKET, 1ST FLOOR SAKAR BAZAR, KALUPUR AHMEDABAD 38 002. PAN : AAFCM 4532 M / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI PRASOON KABRA, SR.DR ASSESSEE BY : SHRI P.D. SHAH, AR ! / DATE OF HEARING : 08/06/2018 '#$ ! / DATE OF PRONOUNCEMENT: 27/06/2018 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINS T ORDER OF THE LD.CIT(A)-2, AHMEDABAD DATED 13.6.2016 PASSED FOR T HE ASSESSMENT YEAR 2009-10. ON RECEIPT OF NOTICE IN THE REVENUES APP EAL, THE ASSESSEE HAS FILED CROSS OBJECTION BEARING NO.166/AHD/2016. 2. THOUGH REVENUE HAS TAKEN FOUR GROUNDS OF APPEAL, BUT ITS GRIEVANCE REVOLVES AROUND A SINGLE ISSUE I.E. THE LD.CIT(A) H AS ERRED IN DELETING THE ADDITION OF RS.69,02,700/- WHICH WAS ADDED BY THE A O WITH HELP OF SECTION 68 OF THE INCOME TAX ACT, 1961. IN THE CO THE ASSESSE E HAS TAKEN UP JURISDICTIONAL ISSUE WHEREBY IT HAS PLEADED THAT TH E ASSESSMENT ORDER IS TIME ITA NO.2311/AHD/2016 WITH CO 2 BARRED AND THE LD.CIT(A) HAS ERRED IN NOT QUASHING THE ASSESSMENT ORDER BEING TIME BARRED. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED ITS RETURN OF INCOME ELECTRONICALLY ON 22.9.2009 DECLARING TOTAL INCOME AT RS.59,280/-. THIS RETURN WAS PROCESSED UNDER SECTION 143(1) OF T HE ACT. THE AO, THEREAFTER, RECEIVED INFORMATION FROM DY.DIRECTOR O F INCOME TAX (INVT.), NEW DELHI EXHIBITING THAT A SEARCH/SURVEY UNDER SECTION 132/133A OF THE ACT WAS CONDUCTED AT THE RESIDENCE AND BUSINESS PREMISES OF SHRI SURENDRA KUMAR JAIN AND HIS BROTHER WHEREIN IT REVEALED THAT THESE PERSONS WERE INDULGING IN PROVIDING ACCOMMODATION ENTRIES TO VARIOUS BENEFICI ARY COMPANIES/ENTITIES/PERSONS. ACCORDING TO THE AO, T HE ASSESSEE IS ONE OF THE BENEFICIARIES. HENCE, HE RECORDED REASONS AND ISSU ED A NOTICE UNDER SECTION 148 ON 7.6.2013 WHICH WAS SERVED UPON THE ASSESSEE ON 13.6.2013. THE ASSESSEE CHALLENGED THE REOPENING BY WAY OF SPECIAL CIVIL APPLICATION NO.16235 OF 2014 BEFORE THE HONBLE HIGH COURT OF G UJARAT. THE HONBLE GUJARAT HIGH COURT HAS ISSUED NOTICE AND STAYED FUR THER PROCEEDINGS. HOWEVER, ITS APPLICATION WAS DISMISSED ON 8.2.2015. THE AO HAS PASSED ASSESSMENT ORDER ON 22.3.2016. ACCORDING TO THE AS SESSEE THIS ORDER IS TIME BARRED. THIS PLEA OF THE ASSESSEE HAS BEEN REJECTE D BY THE AO AS WELL AS BY THE LD.CIT(A). 4. SINCE THE ISSUE DISPUTED IN THE CO IS A JURISDIC TIONAL ISSUE, THEREFORE, FIRST WE TAKE THIS ISSUE. 5. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE HAS C OMPILED DETAILS IN TABULAR FORM DEMONSTRATING AS TO HOW THE ASSESSMENT ORDER IS TIME BARRED. WE DEEM IT APPROPRIATE TO TAKE NOTE OF THESE DETAIL S, WHICH READ AS UNDER: A. THE APPELLANT MOST RESPECTFULLY CRAVES LIBERTY TO SUBMIT THE FOLLOWING DATES FOR YOUR KIND PERUSAL:- NAME DATE ANNEXURE 1. DATE OF ISSUING OF NOTICE SECTION 148 7 JUNE 2013 2. SERVICE OF NOTICE ISSUED UNDER SECTION 148 13 JUNE 2013 ITA NO.2311/AHD/2016 WITH CO 3 3. END OF THE FINANCIAL YEAR IN WHICH THE NOTICE WAS SERVED 31 MARCH 2014 4. ONE YEAR FROM THE END OF THE FY IN WHICH NOTICE WAS SERVED 31 MARCH 2015 5. STAY ORDER PASSED BY HON'BLE HIGH COURT AGAINST ASSESSEE'S WRIT FILED BY THE ASSESSEE 10 NOVEMBER 2014 1 6. FINAL ORDER PASSED BY THE HON'BLE HIGH COURT AND STAY VACTED AGAINST THE WRIT. 8 APRIL 2015 2 7.NUMBER OF DAYS WHICH WILL BE EXCLUDED (AS PER EXPL.L TO SEC 153(4) 149 8. DAYS REMAINING FOR AO TO COMPLETE THE ASSTT. AFTER ORDER OF THE HONBLE HIGH COURT NIL 9. SINCE THE TIME REMAINING IS LESS THAN 60 DAYS, EXTENDED PERIOD IS 60 DAYS( AS PER PROVISO TO EXPLN 1 TO SECTION 153(4)) 60 10. EXTENDED ATE AFTER, 60 DAYS OF PRONOUNCEMENT OF THE ORDER AND VACATION OF INTERIM RELIEF 7 JUNE, 2015 11. ORDER UNDER SECTION 143(3) REWS 147 PASSED ON 22 MARCH 2016 2. FROM THE ABOVE TABLE, IT IS EVIDENT THAT THE ORD ER WAS REQUIRED TO BE PASSED BEFORE 7TH JUNE 2015 WHEREAS IT HAS BEEN PASSED ON 22ND MARCH 2016 AND THEREFORE IT IS TIME BARRED AND THEREFORE THE ORDER PASSED BY THE ID.AO IS REQUIRED TO BE QUASHED. IN THIS REGARD RELIANCE IS PLACED ON THE ORDER OF THE CO- ORDINATE HON'BLE ITAT-AHMEDABAD BENCH, IN THE CASE OF DCIT VS SUN PHARMACEUTICALS LIMITED (ITA 1688/AHD/2015).COPY EN CLOSED AS ANNEXURE 3.FURTHER RELIENCE IS PLACED ON THE ,(A) HON'BLE AP EX COURT IN THE CASE OF REGIONAL DIRECTOR ONGC LIMITED & ANS. VS ASSN.OF SC . & TECH OFFR.ONGC LTD & ORS.(354 ITR 156)(SC) AND (B)HON'BLE DELHI HIGH COU RT IN THE CASE SAHEB RAM OM PRAKASH MARKETING PVT LTD VS CIT (398 ITR 252)(D EL) DATED 8/9/2017. 3.IN VIEW OF THE ABOVE FACTS AND LEGAL POSITION, TH E ORDER PASSED BY THE ID.AO IS BAD IN LAW AND THEREFORE, YOUR HONOURS ARE REQUE STED TO QUASH THE ORDER OF THE LD.AO AND THE CROSS OBJECTION OF THE ASSESSEE I S TO BE ALLOWED. 6. THE LD.COUNSEL FOR THE ASSESSEE HAS RAISED TWO F OLD SUBMISSIONS. IN HIS FIRST FOLD CONTENTIONS, HE CONTENDED THAT CLAUSE (I I) TO EXPLANATION 1 APPENDED TO SECTION 153(1) PROVIDES EXCLUSION OF THAT PERIOD DURING WHICH ASSESSMENT PROCEEDINGS REMAINS STAYED BY AN ORDER OR INJUNCTIO N OF ANY COURT. HE POINTED THAT THIS EXPLANATION HAS FALLEN FOR CONSIDERATION BEFORE THE HONBLE HIGH ITA NO.2311/AHD/2016 WITH CO 4 COURTS AND THE HONBLE HIGH COURTS HAVE INTERPRETED THAT ONLY PERIOD DURING WHICH PROCEEDINGS REMAINED STAYED OUGHT TO BE EXCLU DED. IN SUPPORT OF HIS CONTENTIONS, HE RELIED UPON THE JUDGMENT OF THE HON BLE DELHI HIGH COURT IN THE CASE OF SAHEB RAM OM PRAKASH MARKETING PVT. LTD . VS. CIT, 398 ITR 292. HE PLACED ON RECORD COPY OF JUDGMENT DATED 8.9.2017 . HE FURTHER RELIED UPON THE ORDER OF THE ITAT, AHMEDABAD BENCH IN THE CASE OF ACIT VS. SUN PHARMACEUTICAL INDUSTRIES LTD., RENDERED IN ITA NO. 1688/AHD/2015 WHEREIN THE TRIBUNAL HAS FOLLOWED JUDGMENT OF HONBLE ALLAH ABAD HIGH COURT IN THE CASE OF CIT VS. CHANDRA BHAN BANSAL, 46 TAXMANN.COM 108 (ALL). ON THE STRENGTH OF HONBLE ALLAHABAD HIGH COURTS DECISION , TRIBUNAL HAS HELD THAT ONLY THE PERIOD DURING WHICH FURTHER PROCEEDINGS RE MAINED STAYED BEFORE THE AO WOULD BE EXCLUDED. 7. IN HIS NEXT FOLD OF CONTENTIONS, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO HAS BEEN COUNTING THE PERIOD OF LIMITATION FROM THE DATE OF COMMUNICATION OF THE ORDER FOR THE PURPOSE OF EX CLUSION. HE PLACED ON RECORD DETAILS OBTAINED UNDER RTI ACT FROM THE HON BLE HIGH COURT AND POINTED OUT THAT MRS.MAUNA M. BHATT HAD APPLIED FOR COPY OF ORDER OF THE HONBLE HIGH COURT ON 10.4.2015 VIDE APPLICATION NO.12837/2015. THIS ORDER WAS DELIVERED ON 22.12.2015. FROM THIS DATE, AT THE MOST 60 DAYS WOULD BE COUNTED AS PER THE PROVISO TO EXPLANATION 1 TO SECTION 153(4) OF THE ACT. EVEN THE BENEFIT O F 60 DAYS FROM THE DATE OF RECEIPT OF COPY IS BEING G IVEN, THEN ALSO THE ASSESSMENT ORDER IS TIME BARRED. COPY WAS DELIVERE D ON 22.12.2015 AND ASSESSMENT ORDER HAS BEEN PASSED ON 22.3.2016. THU S, ON ALL COUNT, IT IS TIME BARRED. 8. THE LD.DR CONTENDED THAT PERIOD CONSUMED IN COMM UNICATION OF THE ORDER TO THE AO DESERVES TO BE INCLUDED. HE RELIED UPON THE ORDER OF THE ITAT IN THE CASE OF PAWAN KUMAR JAIN VS. DCIT, 32 TAXMAN N.COM 378 (MUM.TRIB.). HE PLACED ON RECORD COPY OF THIS DECISION. HE FURT HER RELIED UPON THE ORDER OF NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION. H E PLACED ON RECORD ONLINE ANALYSIS OBTAINED FROM SUPREME COURT CASES I N ONLINE BLOG. HE ALSO RELIED UPON THE JUDGMENT OF THE HONBLE GUJARAT HIG H COURT IN THE CASE OF LALADHAR T. KHUSHLANI VS. COMMISSIONER OF CUSTOMS, TAX APPEAL NO.915 OF ITA NO.2311/AHD/2016 WITH CO 5 2016. HE FURTHER RELIED UPON THE ORDER OF ITAT IN THE CASE OF JAGMOHAN GURBAKSHISH SINGH VS. DCIT IN M.A.NO.42/CHD/2018. 9. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD. CERTAIN FACTS ARE NOT IN DISPUTE VIZ. NOTICE UNDER SECTION 148 WAS SERVED UPON THE ASSESSEE ON 13.6.2013. IT WAS ISSUED IN FINANC IAL YEAR WHICH WOULD END ON 31.3.2014. THUS, TIME LIMIT FOR PASSING ASSESSMENT ORDER IN THIS CASE WAS UPTO 31.3.2015. THE ASSESSEE CHALLENGED REOPENING OF THE ASSESSMENT BEFORE THE HONBLE HIGH COURT AND OBTAINED STAY. THE STAY GRANTED ON PROCEEDINGS ON 10.11.2014 WAS VACATED ON 8.4.2015 AND WRIT PETI TION WAS DISMISSED. THUS, SHORT CONTROVERSY BETWEEN THE ASSESSEE AND TH E REVENUE IS, WHETHER THE TIME LIMIT CONSUMED DURING THE PENDENCY OF WRIT PETITION WHERE FURTHER PROCEEDINGS BEFORE THE AO REMAINED STAYED BY HONBL E HIGH COURT IS TO BE EXCLUDED OR TIME CONSUMED IN COMMUNICATING THIS JUD GMENT OF THE HONBLE HIGH COURT TO THE AO ALSO DESERVES TO BE EXCLUDED I N VIEW OF THE CLAUSE (II) OF EXPLANATION 1 APPENDED TO SECTION 153(1). IN THE CASE OF SUN PHARMACEUTICALS (SUPRA), WE HAVE RELIED UPON THE JU DGMENT OF THE HONBLE ALLAHABAD HIGH COURT WHEREIN THIS EXPLANATION HAS B EEN CONSIDERED. THE FINDING OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CHANDRA BHAN BANSAL (SUPRA) HAS BEEN EXTRACTED BY THE TRIBUNAL W HEREIN COGNIZANCE TO CLAUSE (II) OF EXPLANATION 1 APPENDED TO SECTION 153(1) HAS BEEN TAKEN BY THE HONBLE HIGH COURT. SUCH DISCUSSION READS AS UNDER : THE AFORESAID WRIT PETITIONS HAVING BEEN DISMISSED ON 01/8/1995, AS PER PROVISO TO EXPLANATION 1 TO SECTION 153, THE AS SESSMENT WAS TO BE COMPLETED BY 30/9/1995, BUT IN THE PRESENT CASE THE ASSESSMENT WAS COMPLETED ON 04/1/1996 I.E. BEYOND 30/9/1995. THE S UBMISSION OF SHRI SHAMBHU CHOPRA, LEARNED COUNSEL APPEARING FOR THE R EVENUE TO SAVE THE ASSESSMENT FROM BEING BEYOND THE PERIOD OF LIMI TATION IS THAT THE PERIOD OF 60 DAYS IS TO BE COMPUTED FROM THE DATE O F COMMUNICATION OF THE ORDER. HE SUBMITS THAT THE ORDER OF THE HIGH CO URT DATED 01/8/1995, DISMISSING THE WRIT PETITIONS COULD BE R ECEIVED BY THE OFFICE OF THE ACIT (INVESTIGATION) ON 18/12/1995. THERE AR E TWO REASONS DUE TO WHICH THE SAID SUBMISSION CANNOT BE ACCEPTED. FI RSTLY, THE ORDER OF THE HIGH COURT DATED 01/8/1995, DISMISSING THE WRIT PETITIONS WAS PASSED IN THE PRESENCE OF THE LEARNED COUNSEL FOR T HE REVENUE, HENCE THE SUBMISSION THAT IT WAS COMMUNICATED ON 18/12/19 95 HAS NO RELEVANCE, AND SECONDLY THE PROVISION OF EXPLANATIO N 1 (II) OF SECTION 153 OF THE ACT, 1961 WHICH IS TO THE FOLLOWING EFFE CT: ITA NO.2311/AHD/2016 WITH CO 6 'EXPLANATION 1- IN COMPUTING THE PERIOD OF LIMITATI ON FOR THE PURPOSES OF THIS SECTION -(I) ............. (II) THE PERIOD DURING WHICH THE ASSESSMENT PROCEED ING IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT, OR .............S HALL BE EXCLUDED'. THE ABOVE STATUTORY SCHEME CLEARLY INDICATES THAT F OR COMPUTING THE PERIOD OF LIMITATION THE PERIOD DURING WHICH THE AS SESSMENT PROCEEDINGS IS STAYED SHALL BE EXCLUDED. IN EXCLUDING THE ABOVE PERIOD, THE CONCEPT OF COMMUNICATION OF THE ORDER OF THE COURT CANNOT B E IMPORTED. THE EXCLUSION OF THE PERIOD HAS BEEN PROVIDED BECAUSE O F STAY OR INJUNCTION BY ANY COURT DURING WHICH THE ASSESSMENT PROCEEDING S ARE STAYED. THE INTENTION IS CLEAR THAT WHEN THE LIMITATION FOR ASS ESSMENT HAS STARTED IT CAN BE STAYED ONLY BY AN ORDER OR INJUNCTION OF ANY COURT AND AS SOON AS THE ORDER OR INJUNCTION OF THE COURT IS VACATED, THE PERIOD OF LIMITATION SHALL RE-START SINCE AFTER THE VACATION OF THE ORDER OF THE COURT, THERE IS NO EMBARGO ON THE AUTHORITIES TO PR OCEED WITH THE ASSESSMENT. THE SUBMISSION OF SHRI SHAMBHU CHOPRA L EARNED COUNSEL APPEARING FOR THE REVENUE THAT THE LIMITATION WILL START AGAIN ONLY WHEN THE ORDER IS COMMUNICATED TO THE DEPARTMENT THUS CA NNOT BE ACCEPTED. THE OTHER REASON FOR NOT ACCEPTING THE ABOVE SUBMIS SION IS ALSO EQUALLY POTENT. EXPLANATION 1 (V) AND (VI) TO SECTION 153 O F THE ACT, 1961 ARE ALSO PART OF THE SAME STATUTORY SCHEME. IN EXPLANAT ION 1 (V) AND (VI) TO SECTION 153 OF THE ACT, 1961 THE STATUTORY SCHEM E PROVIDES FOR COMPUTING THE PERIOD OF LIMITATION FROM THE DATE WH EN THE ORDER UNDER SUB-SECTION (1) OF SECTION 245D AND 245Q IS RECEIVE D BY THE COMMISSIONER. THUS, THE LEGISLATURE HAS PROVIDED FO R EXCLUDING THE PERIOD FROM THE DATE OF COMMUNICATION OF THE ORDER WHERE THEY SO INTENDED. THE USE OF CONCEPT OF COMMUNICATION OF RE CEIVING THE ORDER IN THE SAME PROVISION WHICH IS ABSENT IN EXPLANATION 1 (II) CONCERNED CLEARLY INDICATES THAT FOR THE PURPOSES OF EXPLANAT ION 1 (II), THE COMMUNICATION OF THE ORDER OF THE COURT VACATING TH E STAY ORDER OR INJUNCTION IS NOT CONTEMPLATED. 10. HONBLE DELHI HIGH COURT HAS ALSO CONSIDERED CL AUSE (II) OF EXPLANATION 1 APPENDED TO SECTION 153 AND OBSERVED THAT ONLY THE PERIOD DURING WHICH ASSESSMENT PROCEEDINGS IS STAYED BY AN ORDER OR INJ UNCTION OF HIGHER COURT WOULD BE EXCLUDED. THE DISCUSSION MADE BY THE HON BLE DELHI HIGH COURT ON THIS ISSUE READS AS UNDER: 17. AT THE OUTSET, IT REQUIRES TO BE NOTICED THAT ALTHOUGH IT IS ASSERTED IN THE COUNTER-AFFIDAVIT BY THE REVENUE THAT A COPY OF THE ORDER OF THE HIGH COURT DATED 9TH NOVEMBER 2016 WAS RECEIVED IN THE OFFICE OF THE PRINCIPAL CIT-8 ONLY ON 2ND DECEMBER 2016, THERE IS NO DOCUMENT PLACED ON RECORD TO SUBSTANTIATE THE ASSERTION. THI S COULD HAVE BEEN SUBSTANTIATED BY PRODUCING THE RELEVANT EXTRACT FRO M THE DISPATCH AND RECEIPT REGISTER MAINTAINED IN THE SAID OFFICE OR E VEN A COPY OF THE ORDER ITA NO.2311/AHD/2016 WITH CO 7 OF THE HIGH COURT WITH THE DATE STAMP OF THE RECEIP T OF SUCH ORDER IN THE OFFICE OF THE PRINCIPAL CIT-8. 18. IN ANY EVENT, CLAUSE (II) TO EXPLANATION 1 ONLY EXCLUDES FROM THE COMPUTATION OF LIMITATION 'THE PERIOD DURING WHICH THE ASSESSMENT PROCEEDING IS STAYED BY AN ORDER OR AN INJUNCTION O F ANY COURT.' IT DOES NOT EXCLUDE THE PERIOD BETWEEN THE DATE OF THE ORDE R OF VACATION OF STAY BY THE COURT AND THE DATE OF RECEIPT OF SUCH ORDER BY THE DEPARTMENT. THEREFORE, IN THE PRESENT CASE, THE REVENUE CANNOT TAKE ADVANTAGE OF THE FACT THAT IT RECEIVED A COPY OF THE ORDER DATED 9TH NOVEMBER 2016 OF THIS COURT ONLY ON 2ND DECEMBER 2016. 19. EVEN OTHERWISE, THE ASSERTION THAT THE REVENUE WAS AWARE OF THE ORDER ONLY ON 2ND DECEMBER 2016 DOES NOT APPEAR TO BE CORRECT. THE REVENUE HAS BEEN UNABLE TO DISPUTE THE FACT THAT, O N 30TH NOVEMBER 2016, A NOTICE WAS ISSUED BY THE AO TO THE ASSESSEE UNDER SECTION 142 (1) OF THE ACT AND THIS WAS PURSUANT TO THE ORD ER PASSED BY THIS COURT ON 9TH NOVEMBER 2016. CLEARLY, THEREFORE, ON THE DATE THAT SUCH NOTICE WAS ISSUED, THE AO WAS AWARE OF THE ORDER DA TED 9TH NOVEMBER 2016 OF THIS COURT. ALSO, THE ORDER DATED 9TH NOVEM BER 2016 WAS PASSED IN THE PRESENCE OF COUNSEL FOR THE REVENUE A ND, THEREFORE, THE REVENUE CLEARLY WAS AWARE OF THE SAID ORDER ON THAT DATE ITSELF. 20. FOR ALL OF THE AFOREMENTIONED REASONS, THE COUR T IS UNABLE TO ACCEPT THE PLEA OF THE REVENUE THAT, SINCE IT BECAME AWARE OF THE ORDER OF THIS COURT ONLY ON 2ND DECEMBER2016, THE PERIOD OF 60 DA YS IN TERMS OF THE FIRST PROVISO TO EXPLANATION 1 TO SECTION 153 OF TH E ACT SHOULD BEGIN TO RUN FROM THAT DATE. 21. THE COURT IS ALSO UNABLE TO ACCEPT THE SUBMISSI ON THAT THE 60 DAY PERIOD IN TERMS OF THE FIRST PROVISO TO EXPLANATION 1 TO SECTION 153 OF THE ACT SHOULD BEGIN TO RUN FROM THE DATE ON WHICH THE REVENUE RECEIVED A COPY OF THE ORDER OF VACATION OF STAY. S UCH AN INTERPRETATION IS NOT SUPPORTED BY THE PLAIN LANGUAGE OF THE PROVI SO TO EXPLANATION 1. IN FACT, CIRCULAR NO. 621 DATED 19TH DECEMBER 1991 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, WHILE EXPLAINING THE REASONS FOR INTRODUCTION OF THE PROVISO UNDER EXPLANATION 1, AC KNOWLEDGED THAT THE TIME REMAINING AFTER VACATION OF STAY IN TERMS OF S ECTION 153 (2) OF THE ACT MAY NOT BE SUFFICIENT TO COMPLETE THE RE-ASSESS MENT PROCEEDINGS WHICH IS WHY THE LANGUAGE USED IN THE FIRST PROVISO IS THAT THE PERIOD 'SHALL BE EXTENDED TO 60 DAYS' FOR PASSING THE ASSE SSMENT ORDER IN TERMS OF SECTION 153 (2) OF THE ACT IF THE PERIOD R EMAINING WITHIN LIMITATION AFTER THE EXCLUDED PERIOD HAS ELAPSED IS LESS THAN 60 DAYS. 22. IN THE PRESENT CASE, ON THE DATE THAT THE STAY ORDER STOOD VACATED ONLY 13 DAYS WERE LEFT FOR COMPLETION OF THE PROCEE DINGS. SINCE THIS PERIOD WAS LESS THAN 60 DAYS, THE PERIOD OF LIMITAT ION GOT EXTENDED TO 60 DAYS FROM THE DATE OF SUCH VACATION OF STAY, I.E . 60 DAYS FROM 9TH NOVEMBER 2016. THIS, THEREFORE, MEANT THAT THE ORDE R IN THE RE- ITA NO.2311/AHD/2016 WITH CO 8 ASSESSMENT PROCEEDINGS HAD TO BE NECESSARILY PASSED ON OR BEFORE 8TH JANUARY 2017. THIS IS THE ONLY INTERPRETATION THAT IS POSSIBLE ON A COLLECTIVE READING OF SECTION 153 (2), EXPLANATION 1, CLAUSE (II) AND THE FIRST PROVISO THERETO. 23. THE DECISION OF THE MADRAS HIGH COURT IN THANTH I TRUST (SUPRA) TURNED ON THE FACT THAT THE MADRAS HIGH COURT NARRO WLY INTERPRETED THAT THE WORD 'ASSESSMENT' OCCURRING IN EXPLANATION 1 (I I) TO NOT TAKE WITHIN ITS AMBIT RE- ASSESSMENT PROCEEDINGS. YET, THERE AP PEARS TO BE A CONTRADICTION IN TERMS BECAUSE THE MADRAS HIGH COUR T PROCEEDED TO EXCLUDE THE PERIOD DURING WHICH THERE WAS STAY OF T HE PROCEEDINGS IN TERMS OF THAT VERY EXPLANATION. FURTHER, NO REFEREN CE WAS MADE TO THE PROVISO BELOW EXPLANATION 1. THE MADRAS HIGH COURT PROCEEDED ON THE ASSUMPTION THAT THERE WAS A TIME OF PERIOD OF 4 YEA RS FROM THE LAST DATE OF THE ASSESSMENT YEAR IN WHICH THE NOTICE WAS SERV ED. GOING BY THAT YARDSTICK IN THE PRESENT CASE, THE RE- ASSESSMENT O RDER WOULD STILL BE TIME-BARRED. 24. THE DECISION OF THE CALCUTTA HIGH COURT IN INDI A FERRO ALLOY (SUPRA) IS DISTINGUISHABLE ON FACTS. THE CALCUTTA HIGH COUR T TOO DID NOT TAKE INTO ACCOUNT THE PURPOSE FOR THE INTRODUCTION OF THE PRO VISO TO EXPLANATION 1. HOWEVER, THE ESSENTIAL APPROACH OF EXCLUSION OF PER IOD DURING WHICH THE PERIOD DURING WHICH THE STAY WAS OPERATING IS THE S AME IN ALL THESE CASES. THE INTERPRETATION PLACED BY THIS COURT ON T HE ABOVE PROVISION FINDS SUPPORT FROM THE DECISION OF THE ALLAHABAD HI GH COURT IN CHANDRA BHAN BANSAL (SUPRA) WHERE IT WAS HELD: '10. THE ABOVE STATUTORY SCHEME CLEARLY INDICATES T HAT FOR COMPUTING THE PERIOD OF LIMITATION THE PERIOD DURIN G WHICH THE ASSESSMENT PROCEEDINGS IS STAYED SHALL BE EXCLUDED. IN EXCLUDING THE ABOVE PERIOD, THE CONCEPT OF COMMUNICATION OF T HE ORDER OF THE COURT CANNOT BE IMPORTED. THE EXCLUSION OF THE PERIOD HAS BEEN PROVIDED BECAUSE OF STAY OR INJUNCTION BY ANY COURT DURING WHICH THE ASSESSMENT PROCEEDINGS ARE STAYED. THE IN TENTION IS CLEAR THAT WHEN THE LIMITATION FOR ASSESSMENT HAS S TARTED IT CAN BE STAYED ONLY BY AN ORDER OR INJUNCTION OF ANY COU RT AND AS SOON AS THE ORDER OR INJUNCTION OF THE COURT IS VACATED, THE PERIOD OF LIMITATION SHALL RE-START SINCE AFTER THE VACATION OF THE ORDER OF THE COURT, THERE IS NO EMBARGO ON THE AUTHORITIES TO PR OCEED WITH THE ASSESSMENT.' XXX 13. THE PROVISIONS OF SECTION 153 (3) (II) OF THE A CT, 1961 ARE CLEAR AND EXPLICIT. THE SAID PROVISION PROVIDES THA T WHERE THE ASSESSMENT, REASSESSMENT OR RE-COMPUTATION IS MADE ON THE ASSESSEE OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER OF ANY C OURT IN A PROCEEDING OTHERWISE THAN BY WAY OF APPEAL OR REFER ENCE UNDER THIS ACT, THE PROVISIONS OF SUB-SECTION (1) (LA) AN D (LB) OF THE ACT, SHALL NOT APPLY. THUS, WHERE THE ASSESSMENT, REASSE SSMENT OR RE- ITA NO.2311/AHD/2016 WITH CO 9 COMPUTATION IS MADE ON THE ASSESSEE OR ANY PERSON I N CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERWISE THAN B Y WAY OF APPEAL OR REFERENCE UNDER THIS ACT, THE PERIOD OF L IMITATION AS PROVIDED UNDER SECTION 153 (2) OF THE ACT, 1961 SHA LL NOT BE ATTRACTED.' 25. FOR ALL OF THE AFOREMENTIONED REASONS, THE COUR T HOLDS THAT IN THE PRESENT CASE THE IMPUGNED ASSESSMENT ORDER DATED 30 TH JANUARY 2017 WAS TIME BARRED AND IT IS ACCORDINGLY HEREBY SET AS IDE. CONSEQUENTLY, DEMAND NOTICE DATED 30TH JANUARY 2017 AND THE PENAL TY ORDER DATED 26TH JULY 2017, PASSED BY THE AO UNDER SECTION 271( 1) (C) OF THE ACT, ARE ALSO HEREBY SET ASIDE. 11. AS FAR AS THE ORDER RELIED UPON BY THE LD.DR AR E CONCERNED, THEY ARE NOT DIRECTLY ON THE POINT. THE ISSUE BEFORE THE ITAT I N THE CASE OF PAWAN KUMAR JAIN (SUPRA) WAS WHETHER THE MA FOR RECTIFICATION O F THE TRIBUNALS ORDER UNDER SECTION 254(2) COULD BE FILED FROM THE DATE OF ACKN OWLEDGMENT OF THE ORDER OR FROM THE DATE OF ORDER. THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE ASSESSEE EX PARTE . THE ASSESSEE HAS APPLIED FOR RECALL OF THAT ORDE R. IN THAT CONTEXT THE TRIBUNAL OBSERVED THAT FROM THE DATE OF ACKNOWL EDGEMENT LIMITATION WOULD START. IT IS SO PROVIDED IN RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 ALSO. THE TRIBUNAL IS SUPPOSED TO SERV E ORDER UPON THE ASSESSEE AND FROM THE DATE OF COMMUNICATION OF THE ORDER, LI MITATION WOULD START. SIMILARLY, UNDER CONSUMER PROTECTION ACT, PERIOD OF LIMITATION UNDER SECTION 15 WOULD BE COUNTED FROM THE DATE WHEN THE ORDER WAS C OMMUNICATED TO THE PARTIES FREE OF CHARGE. THE CONSUMER COURTS ARE UN DER OBLIGATION TO COMMUNICATE THE ORDER AND FROM THAT DATE LIMITATION WOULD START. IT IS SO PROVIDED IN THE STATUTE ITSELF. ORDERS OF THE ITAT , CHANDIGARH AND MUMBAI BENCHES ARE ALSO TO THAT EFFECT. THE JUDGMENT OF H ONBLE HIGH COURT IN THE CASE OF LILADHAR T. KHUSHALANI IS ALSO DISTINGUISHA BLE ON FACTS. THE HONBLE COURT WHILE ANALYZING THE SCOPE OF SECTION 35C(2) O F CUSTOMS ACT HELD THAT LIMITATION FOR FILING AN MA FOR RECTIFICATION WOULD START FROM THE DISPATCH OF THE ORDER FROM CESTAT AND NOT FROM DATE OF ORDER. THIS WAS ON THE BASIS OF PROVISION IN CUSTOM ACT. THUS, IN ALL THESE CASES A N OBLIGATION UPON THE ADJUDICATING AUTHORITY WAS THERE FOR COMMUNICATING ORDER. WHEREAS FOR THE PURPOSE OF EXCLUDING THESS NUMBER OF DAYS SPECIFIC PROVISION HAS BEEN MADE IN CLAUSE (II) TO EXPLANATION 1 APPENDED TO SECTION 153. THIS HAS BEEN ITA NO.2311/AHD/2016 WITH CO 10 EXPLAINED BY HONBLE ALLAHABAD HIGH COURT AS WELL A S BY HONBLE DELHI HIGH COURT. NO CONTRARY DECISION FROM HONBLE JURISDICT IONAL HIGH COURT OR THE HONBLE SUPREME COURT HAS BEEN BROUGHT TO OUR NOTIC E BY THE LD.DR. APART FROM THE ABOVE, IT IS ALSO PERTINENT TO NOTE THAT E VEN FROM THE DATE OF RECEIPT OF ORDER BY THE LD.REPRESENTATIVE FROM THE HONBLE HIGH COURT ON 22.12.2015, THE ASSESSMENT ORDER WAS NOT PASSED WITHIN THE TIME LIMIT. THEREFORE, THE ASSESSMENT ORDER IS TIME BARRED. ACCORDINGLY, IT I S QUASHED. CONSEQUENTLY, APPEAL OF THE REVENUE BECOMES REDUNDANT AND STANDS DISMISSED. CO OF THE ASSESSEE IS ALLOWED. 12. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED AND CO OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 27 TH JUNE, 2018 AT AHMEDABAD. SD/- SD/- ( AMARJIT SINGH ) ACCOUNTANT MEMBER ( RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 27/06/2018