DCIT, Circle - 48, Kolkata, Kolkata V. Sanjay Jaiswal, Howrah

ITA 1649/KOL/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4891 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 12-08-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 20-08-2010
• Court: TRIBUNAL
• Department Lawyers: DEBASIS H LAHIRI JCIT LD
• Assessee Lawyers: GOPAL RA M SHARMA LD
• Keywords: Bogus purchase; Business expenditure; Principle of natural justice; Peak credit; Period of limitation
• Section: 143(3); 142(1); 147; 263; 144

Judgement Text

ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 1 IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, K OLKATA BEFORE : SHRI N.V.VASUDEVAN , JUDICIAL MEMBER, AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 1649/KOL/2010 A.Y : 2004-05 DCIT, CIRCLE-48, KOLKATA VS. SANJ AY JAISWAL PAN: ACXPJ5036A (APPELLANT/DEPARTMENT) (RESPONDENT/ASSESSEE) CO NO. 162/KOL/2010 [ ARISING OUT OF ITA NO. 1649/KOL/2010 A.Y 2004-05] SANJAY JAISWAL VS. DCIT, CIRCLE-48, KOLKATA (CROSS OBJECTOR/ASSESSEE) (RESPONDENT/DEPARTMENT) ITA NO. 1676/KOL/2010 A.Y: 2004-05 SANJAY JAISWAL VS. JCIT, RANGE-48, KOLKATA (APPELLANT/ASSESSEE) ( RESPONDENT/DEPARTMENT) FOR THE DEPARTMENT: SHRI DEBASISH LA HIRI, JCIT, LD. SR.DR FOR THE ASSESSEE: SHRI GOPAL RA M SHARMA, ADVOCATE, LD.AR DATE OF HEARING: 18-02-2016 DATE OF PRONOUNCEMENT:23 -03 -20 16 ORDER SHRI.M.BALAGANESH, AM THESE APPEALS AND CROSS OBJECTION OF THE ASSESSEE AS WELL AS THE REVENUE ARISE OUT OF THE COMMON ORDER OF THE LEARNED CIT(A) IN AP PEAL NO. 18/CIT(A)- XXX/CIRCLE-48/2009-10 DATED 28.5.2010 FOR THE ASST YEAR 2004-05 AGAINST THE ORDER OF ASSESSMENT FRAMED BY THE LEARNED AO U/S 143(3) / 254 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 2 2. AT THE OUTSET, THE CROSS OBJECTION OF THE ASSE SSEE IS TAKEN AS IT RAISES THE PRELIMINARY OBJECTION THAT THE ASSESSMENT FRAMED IS BARRED BY LIMITATION. WE FIND THAT THE CROSS OBJECTION PREFERRED BY THE ASSESSEE IS DE LAYED BY 20 DAYS AND THE LEARNED DR DID NOT OBJECT TO THE CONDONATION OF THE SAID DE LAY. HENCE WE CONDONE THE DELAY OF 20 DAYS IN PREFERRING CROSS OBJECTIONS BEFORE US AND THE SAME IS ADMITTED HEREIN FOR ADJUDICATION. 2.1. THE GROUND RAISED BY THE ASSESEE IN HIS CROSS OBJECTION IS AS BELOW:- THAT THE CIT(APPEALS) ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE SHOULD HAVE HELD THAT THE ASSESSMENT IS BARRED BY L IMITATION OF TIME IN TERMS OF SECTION 153(2A) AND IS A NULLITY . 2.2. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ORI GINAL ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT DETERMINING TOTAL INCOME OF RS. 4 7,94,060/-. ON FIRST APPEAL, THE ASSESSEE WAS GRANTED PARTIAL RELIEF. BOTH ASSESSEE AS WELL AS THE REVENUE PREFERRED FURTHER APPEAL BEFORE THIS TRIBUNAL AND THE TRIBUNA L VIDE ITS ORDER DATED 28.9.2007 HAD RESTORED THE TWO ADDITIONS MADE BY THE LEARNED AO T O THE FILE OF THE LEARNED AO FOR FRESH DECISION. CONSEQUENTLY, THE FRESH ASSESSMEN T ORDER WAS PASSED BY THE LEARNED AO ON 25.3.2009 REPEATING THE SAME ADDITIONS AS WER E MADE IN THE ORIGINAL ASSESSMENT. IT WAS ARGUED BY THE LEARNED AR THAT T HE FRESH ASSESSMENT PURSUANT TO ITAT S ORDER SHOULD HAVE BEEN FRAMED BY THE LEARNE D AO ON OR BEFORE 31.12.2008 IN TERMS OF SECTION 153(2A) OF THE ACT AND SINCE THE A SSESSMENT IS FRAMED ON 25.3.2009, THE SAME IS BARRED BY LIMITATION. THIS PLEA WAS AL SO TAKEN BY THE LEARNED AR BEFORE THE ASSESSING OFFICER ITSELF VIDE HIS LETTER DATED 18.2.2009. HOWEVER, THE LEARNED AO DID NOT CONSIDER THIS PRELIMINARY OBJECTION OF THE ASSESSEE AND PROCEEDED TO MAKE THE SAME OLD ADDITIONS (I) ON ACCOUNT OF GROSS PROFIT AMOUNTING TO RS.1,19,177/- AND (II) ON ACCOUNT OF BOGUS PURCHASES AMOUNTING TO RS. 42,8 1,239/-. THE ASSESSEE CONTESTED THE FRESH ASSESSMENT BEFORE THE LEARNED CITA BOTH O N LIMITATION AS WELL AS ON MERITS. ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 3 THE PRELIMINARY OBJECTION RAISED BY THE ASSESSEE ON LIMITATION BEFORE THE LEARNED CIT(A) WAS SUBJECTED TO REMAND PROCEEDINGS BY THE L EARNED CIT(A). IN THE REMAND PROCEEDINGS, THE LEARNED AO STATED THAT THE TRIBUN AL HAD ONLY RESTORED THE ASSESSMENT TO THE FILE OF THE ASSESSING OFFICER AND NOT SET AS IDE THE SAME. ACCORDING TO HIM, RESTORATION HAS A MEANING DIFFERENT FROM THE MEANIN G OF THE EXPRESSION SET ASIDE AND HENCE IT IS OUTSIDE THE AMBIT OF LIMITATION PRESCRI BED IN SECTION 153(2A) OF THE ACT. THE LEARNED AO ALSO STATED THAT NO FRESH ASSESSMENT WAS MADE U/S 143/144 OF THE ACT BUT THE ORDER WAS PASSED U/S 254 OF THE ACT BY GIVI NG EFFECT TO THE ITATS ORDER. IT WAS FURTHER MENTIONED BY THE LEARNED AO THAT TIME L IMIT U/S 153(2A) OF THE ACT WILL NOT APPLY TO A SITUATION WHERE SPECIFIC DIRECTIONS WERE GIVEN BY THE TRIBUNAL AND ASSESSMENT ITSELF WAS NOT SET ASIDE. HE STATED THA T THE PRESENT CASE OF THE ASSESSEE IS COVERED BY THE PROVISIONS OF SECTION 153(3) OF THE ACT WHERE NO LIMITATION OF TIME IS PROVIDED IN THE STATUTE. THE LEARNED CIT(A) HELD THAT THE ASSESSMENT IS NOT BARRED BY LIMITATION BUT HOWEVER DELETED THE ADDITIONS MADE I N THE FRESH ASSESSMENT ON MERITS. AGAINST THIS ORDER, BOTH ASSESSEE AS WELL AS THE RE VENUE ARE IN APPEAL BEFORE US. THE ASSESSEE HAS ALSO RAISED CROSS OBJECTIONS BEFORE US ON THE EXCLUSIVE GROUND OF ASSESSMENT BARRED BY LIMITATION THOUGH THE SAME IS ALSO RAISED AS AN INDEPENDENT GROUND IN HIS APPEAL. 2.3. WE FIRST PROCEED TO ADJUDICATE THE CROSS OBJE CTIONS OF THE ASSESSEE. THE LEARNED AR ARGUED REITERATED THE SUBMISSIONS MADE BY HIM BE FORE THE LOWER AUTHORITIES. 2.4. IN RESPONSE TO THIS, THE LEARNED DR ARGUED TH AT THE TRIBUNAL IN ITS FIRST ORDER HAD NOT USED THE SET ASIDE OR CANCELLED AND HENCE T HE SAME WOULD NOT FALL U/S 153(2A) OF THE ACT. HE ARGUED THAT IT IS ONLY RESTORING B ACK TO THE FILE OF THE LEARNED AO FOR VERIFICATION OF COMPARABLE CASES AND SUNDRY CREDITO RS. HE PLACED RELIANCE ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF RAJASTHAN R.S.S. & GINNING MILLS FED. LTD VS DCIT REPORTED IN (2014) 45 TAXMANN.COM 1 (SC) WHEREIN , IN THE CONTEXT OF CARRY FORWARD AND SET OFF OF ACCUMULATED LOSSES U/S 72A OF THE ACT IN CASE OF ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 4 AMALGAMATION, IT WAS HELD THAT IT IS CLEAR THAT THE TAX STATUTE SHOULD BE INTERPRETED VERY STRICTLY AS THERE IS NO EQUITY IN TAX MATTERS AND NOTHING CAN BE READ WHICH IS NOT IN THE SECTION. 2.5. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE OUTSET, IT WOULD BE RELEVANT TO REPRODUCE THE FINDING PORTION OF THE TRIBUNAL ORDER IN ITA NO. 1567/KOL/2007 (ASSESSEE APPEAL) AND ITA NO. 1430/KOL/2007 (REVENU E APPEAL) FOR ASST YEAR 2004-05 DATED 28.9.2007 TO UNDERSTAND THE CLEAR LANGUAGE AN D UNDERSTANDING OF THE ISSUE :- 6. WE HAVE GIVEN OUR CAREFUL CONSIDERATION TO THE RIV AL SUBMISSIONS MADE BEFORE US AND HAVE PERUSED THE ORDERS OF TAX A UTHORITIES. WE HAVE ALSO CONSIDERED THE PAPER BOOK FILED BY THE LD. COUNSEL FOR THE ASSESSEE. THE ASSESSEE HAS DISPUTED THE ORDER OF AUTHORITIES BELO W IN ESTIMATING THE GROSS PROFIT STATING THAT COMPARABLE CASES RELIED BY THE AO WERE NOT CONFRONTED TO IT FOR REBUTTAL. THE ASSESSEE HAS ALSO DISPUTED TH E ORDER OF ID. CIT(A) IN CONFIRMING THE ADDITION OF RS.37,39,701L- ON ACCOUN T OF CASH CREDIT FROM ONE M/S. KRISHNA TRADING CO. AND HAS CONTENDED THAT THO UGH THE ASSESSEE MADE ALL POSSIBLE EFFORTS TO ADDUCE EVIDENCE AND EXPLANA TION BEFORE THE A.O., THE SAME COULD NOT BE MADE AS THE CONCERNED A.O. WAS NO T AVAILABLE IN HIS CHAMBER. WE ALSO FIND THAT THE ID. COUNSEL FOR THE ASSESSEE -HAS PRAYED FOR ONE MORE OPPORTUNITY TO ENABLE THE ASSESSEE TO EXPL AIN HIS CASE IN CASE OF BOTH THE GROUNDS RAISED BY HIM. THE REVENUE HAS ALS O STATED THAT THE GROUND RAISED BY IT SHOULD BE RESTORED BACK TO THE FILE OF A.O. AS THE SAME RELATES TO THE CONNECTED GROUND NO. 2 OF ASSESSEE'S APPEAL. WE , THEREFORE, AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE FIND THAT SINCE THE COMPARABLE CASES WHILE ESTIMATING THE GROSS PROFIT WAS NOT CONFRONTED TO THE ASSESSEE AND THE ASSESSEE HAS ASKED FOR ONE MORE OP PORTUNITY TO EXPLAIN HIS CASE IN SUPPORT OF CASH CREDIT FROM M/S. KRISHNA TR ADING CO. FOR WHICH THE REVENUE HAS ALSO ASKED FOR RESTORATION OF THE DELET ION BY THE ID. CIT(A).'WE, THEREFORE, FOLLOWING THE PRINCIPLE OF NATURAL JUSTI CE RESTORE THE GROUND RAISED BY THE ASSESSEE AND REVENUE TO THE FILE OF A.O. TO DECIDE THE SAME AFRESH. NEEDLESS TO SAY THAT THE ASSESSEE SHOULD BE GIVEN P ROPER AND ADEQUATE OPPORTUNITY TO EXPLAIN HIS CASE BEFORE HIM. WE HOLD AND DIRECT ACCORDINGLY. 2.5.1. IT WOULD BE RELEVANT TO REPRODUCE THE PROVI SIONS OF SECTION 153(2A) AND SECTION 153(3) OF THE ACT AT THIS JUNCTURE. ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 5 SECTION 153 TIME LIMIT FOR COMPLETION OF ASSESSME NTS AND REASSESSMENTS (2A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECT IONS (1) [, (1A), (1B)] 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 IN PURSUANCE OF AN ORDER UNDER SECTION 250 OR SECTION 254 OR SECTION 263 OR SECTION 264 , SETTING ASIDE OR CANCELLING AN ASSESSMENT, MAY BE MADE AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE [PRINCIPAL CHIEF COMMISSIONER OR] CHIEF COMMISSIONER OR [PRINCIPAL C OMMISSIONER OR] COMMISSIONER OR, AS THE CASE MAY BE, THE ORDER UNDE R SECTION 263 OR SECTION 264 IS PASSED BY THE [ PRINCIPAL CHIEF COMMISSIONER OR ] CHIEF COMMISSIONER OR [PRINCIPAL COMMISSIONER OR] COMMISSIONER: PROVIDED THAT WHERE THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR] CHIEF COMMISSI ONER OR [PRINCIPAL COMMISSIONER OR] COMMISSIONER OR, AS THE CASE MAY B E, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE [ PRINCIPAL CHIEF COMMISSIONER OR ] CHIEF COMMISSIONER OR [PRINCIPAL COMMISSIONER OR ] COMMISSIONER, ON OR AFTER THE 1ST DAY OF APRIL, 1999 BUT BEFORE THE 1 ST DAY OF APRIL, 2000, SUCH AN ORDER OF FRESH ASSESSMENT MAY BE MADE AT ANY TIME U P TO THE 31ST DAY OF MARCH, 2002 :] 93 [ PROVIDED FURTHER 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 B E, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE [ PRINCIPAL COMMISSIONER OR] COMMISSIONER ON OR AFTER THE 1 ST DAY OF APRIL, 2005 [ BUT BEFORE THE 1 ST DAY OF APRIL 2011], THE PROVISIONS OF THIS SUB-SECTION SHA LL HAVE EFFECT AS IF FOR THE WORDS ONE YEAR, THE WORDS NINE MONTHS HAD BEE N SUBSTITUTED:] (3) THE PROVISIONS OF SUB-SECTIONS (1) [, (1A), (1B)] AND (2) SHALL NOT APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS, REASSESSMENTS AND RECOMPUTATIONS WHICH MAY, 96 [SUBJECT TO THE PROVISIONS OF SUB-SECTION (2A),] BE COMPLETED AT ANY TIME (I) [***] (II) WHERE THE ASSESSMENT, REASSESSMENT OR RECOMPU TATION IS MADE ON THE ASSESSEE OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER UNDER SECTION 250 , 254 , 260 , 262 , 263 , OR 264 1 [OR IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERW ISE THAN BY WAY OF APPEAL OR REFERENCE UNDER THIS ACT] ; (III) WHERE, IN THE CASE OF A FIRM, AN ASSESSMENT IS MADE ON A PARTNER OF THE FIRM IN CONSEQUENCE OF AN ASSESSMENT MADE ON THE FI RM UNDER SECTION 147 . 2.5.2. FROM THE AFORESAID PROVISIONS, IF THE ASSES SEES CASE FALLS UNDER SECTION 153(2A) OF THE ACT, THEN THE LAST DATE FOR COMPLETION OF AS SESSMENT IS 31.12.2008 AS ADMITTEDLY, ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 6 THE TRIBUNAL ORDER HAS BEEN RECEIVED BY THE DEPARTM ENT ON OR BEFORE 12.12.2007 WHICH IS EVIDENT FROM THE FACT THAT THE FIRST NOTICE WAS ISSUED BY THE LEARNED AO COMMENCING THE PROCEEDINGS PURSUANT TO TRIBUNALS O RDER ON 12.12.2007. HE STATED THAT THE NOTICE U/S 142(1) AND 143(2) OF THE ACT WE RE ISSUED ON THE ASSESSEE ON 12.12.2007 CALLING FOR CERTAIN DETAILS PURSUANT TO THE ORDER OF TRIBUNAL. HENCE IT CAN SAFELY BE CONCLUDED THAT THE TRIBUNAL ORDER HAD BEE N SERVED BEFORE 12.12.2007 AND HENCE THE TIME LIMIT FOR COMPLETION OF FRESH ASSESS MENT IN TERMS OF SECTION 153(2A) OF THE ACT WOULD BE 31.12.2008. IN SUCH A CASE, THE ASSESSMENT FRAMED ON 25.3.2009 WOULD BECOME BARRED BY LIMITATION. IF THE ASSESS EES CASE FALLS UNDER SECTION 153(3) OF THE ACT, WHICH DOES NOT STIPULATE ANY TIME LIMIT FOR COMPLETION OF ASSESSMENT , THEN THE ASSESSMENT FRAMED ON 25.3.2009 WOULD BE IN TIME . HENCE THE CRUCIAL QUESTION TO BE DECIDED HEREIN IS AS TO WHETHER THE ASSESSEES C ASE FALLS UNDER SECTION 153(2A) OR 153(3) OF THE ACT, FOR WHICH PURPOSE, IT WOULD BE R ELEVANT TO DECIDE AS TO WHETHER THE TRIBUNAL HAD SET ASIDE THE OLD ASSESSMENT OR MERELY GIVEN A FINDING OR DIRECTION TO THE LEARNED AO TO GIVE EFFECT TO THE ORDER OF THE TRIBU NAL. 2.5.3. WE FIND FROM THE FINDINGS GIVEN BY THE TRIB UNAL IN ITS ORDER DATED 28.9.2007 AS REPRODUCED SUPRA, IT HAD NOT GIVEN ANY DIRECTION OR FINDING TO THE LEARNED AO TO GIVE EFFECT TO ITS ORDER , BUT INSTEAD HAD SET ASIDE THE ENTIRE ASSESSMENT TO MAKE IT AFRESH BY FOLLOWING DUE PROCESS OF LAW FOR THE PURPOSE OF EXA MINATION OF SOME WITNESSES IN LINE WITH THE PRINCIPLES OF NATURAL JUSTICE. THE TRIBUN AL MAY INDICATE CERTAIN LINES OF ENQUIRY OR OTHER EXERCISES FOR CONFORMING TO NATURA L JUSTICE OR CONDUCTING THE ASSESSMENT ON THE RIGHT PROCEDURE. THAT DOES NOT M EAN THAT THE TRIBUNALS ORDER IS NOT FOR A FRESH ASSESSMENT. IT HAD EFFECTIVELY ASKED T HE LEARNED AO TO MAKE FRESH EXERCISE OF ASSESSMENT DETERMINING THE TOTAL INCOME. 2.5.4. IT WOULD ALSO BE RELEVANT TO LOOK AT THIS A SPECT FROM THE PERSPECTIVE OF HISTORICAL BACKGROUND OF THIS ENACTMENT. IT WOULD BE SEEN THA T THE LEGISLATURE FROM ITS EXPERIENCE FOUND THAT THE FRESH ASSESSMENT IN THE CASES OF ORD ERS OF SETTING ASIDE USED TO BE ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 7 COMPLETELY NEGLECTED AND TO BE SHELVED AD INFINITUM TO GATHER DUST FOR DECADES. THIS CAUSED A MOUNTING BACKLOG AS THERE WAS NO LIMITATIO N OF TIME FOR COMPLETION OF SUCH ASSESSMENT. THIS NECESSITATED THE INTRODUCTION OF LIMITATION TO END THIS POTENTIAL MISCHIEF. IF THE LEARNED AOS PLEADING IS TAKEN AS CORRECT, IN THAT CASE IT WOULD VIRTUALLY MEAN THAT THE ORDERS OF THE TRIBUNAL PASS ED U/S 254 OF THE ACT FOR THE MOST PART IF NOT UNIVERSALLY, REMAIN OUTSIDE THE SCOPE O F SECTION 153(2A) BECAUSE RARELY THE WHOLE ASSESSMENT ORDER ON ALL ITS COUNTS COME IN FO R CHALLENGE BEFORE THE TRIBUNAL IN APPEALS. ALL APPEALS, SO TO SAY, RELATE TO SOME CO MPONENTS OF THE TOTAL INCOME ASSESSED OUT OF MANY. MORE OFTEN THAN NOT, IT HAPPENS THAT THE TRIBUNALS ORDER , WHILE ASKING THE ASSESSING OFFICER TO REDO THE ASSESSMENT ON THO SE LIMITED SCORES, MAY CONTAIN GUIDELINES FOR THE FRESH ASSESSMENT TO BE MADE. TH AT DOES NOT MEAN THAT THE ASSESSMENT REDONE IS NOT A FRESH ASSESSMENT ORDER. HENCE THE VIEW AS CANVASSED BY THE LEARNED AO CANNOT BE TENABLE IN THE FACE OF THE FACT THAT EVEN NULLIFYING A COMPONENT OR A FEW COMPONENTS OF TOTAL INCOME IN TH E ASSESSMENT ORDER UNDER APPEAL MEANS NULLIFYING THE ASSESSMENT BECAUSE ANY EXERCIS E, BY THE IMPORT OF SECTION 143(3), FOR DETERMINING THE TOTAL INCOME OF AN ASSESSEE IS ASSESSMENT. WHEN THE SAME IS DONE A SECOND TIME PURSUANT TO AN APPEAL ORDER U/S 254 O F THE ACT, IS AS WELL A FRESH ASSESSMENT. 2.5.5. WE FIND THAT THE TRIBUNALS ORDER INDICATED AS A GUIDELINE FOR THE PROPER MANNER IN WHICH THE ASSESSMENT IN THE CASE OUGHT TO HAVE B EEN MADE. THERE WAS NO FINDING OR DIRECTION GIVEN THEREON. THE TRIBUNAL REMITTED THE ASSESSMENT FOR DETERMINING AFRESH THE ISSUES RAISED BY THE LEARNED AO IN THE ASSESSME NT APPEALED AGAINST. SINCE THERE WERE NO OTHER ADDITIONS OR ISSUES IN DISPUTE EXCEPT THE TWO ADDITIONS ( I.E ADDITION ON ACCOUNT OF GROSS PROFIT AND BOGUS PURCHASES) MADE I N THE EARLIER ASSESSMENT, THE ORDER ASKING FOR DECIDING THE ISSUES AFRESH AND RECOMPUTI NG THE TOTAL INCOME REPEATING THE PROCEDURE OF ASSESSMENT CORRECTLY AMOUNTS TO A FRES H ASSESSMENT. WE HOLD THAT THE ASSESSMENT MEANS IN THE CONTEXT OF THE SCHEME OF TH E ACT THE DETERMINATION OF THE TOTAL INCOME TO BE BROUGHT TO THE CHARGE OF TAX. THE TOT AL INCOME IS THE SOLE OBJECT OF THE ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 8 WHOLE EXERCISE COMMENCING FROM ASSESSEES FILING OF RETURN AND ENDING WITH THE COMPLETION OF ASSESSMENT. NOW LOOKING AT THE IMPUG NED ISSUE FROM THIS PERSPECTIVE, WHEN THE TRIBUNAL ASKED THE LEARNED AO TO DETERMINE THE TOTAL INCOME BY RE-DECIDING THE ISSUES INVOLVED IN THE ADDITIONS MADE THEREIN, IT IMPLIES INDISPUTABLY A MANDATE FOR FRESH DETERMINATION OF THE TOTAL INCOME. WHEN THE ORDER OF THE TRIBUNAL NULLIFIES THE TOTAL INCOME ASSESSED OR DETERMINED IN THE ORIGINAL ORDER OF AN ASSESSMENT, IT DEFINITELY MEANS THE SETTING ASIDE OF THE ORIGINAL ORDER AND A FRESH ASSESSMENT DETERMINING THE TOTAL INCOME. IN EFFECT, THE TRIBUNALS ORDER ANN IHILATES THE EARLIER ASSESSMENT AS THE TOTAL INCOME DETERMINED BY IT NO MORE SUBSISTS. 2.5.6. THE LEARNED AO BY SUBSTITUTING HIS OLD ORDE R BY PASSING A FRESH ORDER ON 25.3.2009 HAD RENDERED THE FIRST ORDER INOPERATIVE. THE LEARNED AR ARGUED THAT THE WORD RESTORE MEANS RETURNING THE MATTER FOR ASSES SMENT TO THE POINT PRIOR TO ITS COMPLETION IN THE FIRST INSTANCE. SETTING ASIDE HAS ALSO THE SAME EFFECT. 2.5.7. THE LEARNED AR FURTHER ARGUED THAT THE LEARN ED ASSESSING OFFICER HAD TRIED TO CAPITALIZE ON EXPRESSION DIRECTION USED IN SECTIO N 153(3) OF THE ACT. IN THIS REGARD, HE ARGUED THAT THE WORDS FINDING AND DIRECTION OC CUR IN SUB-SECTION (3). HE STATED THAT THERE IS A FUNDAMENTAL MISTAKE IN DEPENDING ON SUB-SECTION (3). SUB-SECTION (3) DEALS WITH A SITUATION ALTOGETHER DIFFERENT FROM TH E SITUATION IN AN ORDER OF THE TRIBUNAL REQUIRING THE LEARNED AO TO RE-DETERMINE THE TOTAL INCOME. HE AGAIN REITERATED THAT MAY BE, THE TRIBUNAL WHILE NULLIFYING A DECISION OF THE LEARNED AO MAY INDICATE SOME PROCEDURAL GUIDELINES OR THE NEEDFUL FOCUS OF ATTEN TION IN MAKING SUCH FRESH ASSESSMENT BUT THAT CANNOT BE EQUATED WITH THE SPEC IALIZED MEANING OF THE WORDS FINDING OR DIRECTION OCCURRING IN SUB-SECTION (3). WE ARE IN AGREEMENT WITH THE SAID ARGUMENTS OF THE LEARNED AR AND HOLD THAT THE SAID WORDS FINDING OR DIRECTION IN SUB-SECTION (3) REFERS TO THE SITUATION WHERE THE T RIBUNALS ORDER HAS COME TO A PARTICULAR FINDING IN RELATION TO SOME OTHER YEAR O R YEARS OR IN RELATION TO THE ASSESSMENT OF ANOTHER PERSON OR PERSONS. IT IS ONL Y IN THAT SITUATION THE ASSESSMENT TO ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 9 BE MADE IN ACCORDANCE WITH SUCH FINDING OR DIRECTIO N IS IMMUNE FROM LIMITATION U/S 153(2A) OF THE ACT. BUT WHERE THE DIRECTION FOR RE -DETERMINING THE TOTAL INCOME OF THE ASSESSEE IS IN RELATION TO THE GROUNDS OF APPEAL FO R A PARTICULAR ASSESSMENT YEAR BEFORE THE TRIBUNAL, THE CASE ATTRACTS SUB-SECTION (2A) AN D NOT SUB-SECTION (3) OF SECTION 153 OF THE ACT. WE FIND THAT THIS CONSTRUCTION ALONE MATCHES AND HARMONIZES WITH THE INTENT BEHIND ENACTING THE LIMITATION U/S 153(2A) O F THE ACT. SO IF THE CONSTRUCTION BY THE LEARNED AO IS TAKEN AS CORRECT, THEN THE VERY P URPOSE OF ENACTMENT PRESCRIBING LIMITATION FOR COMPLETION OF ASSESSMENT U/S 153(2A) OF THE ACT BECOMES OTIOSE AND REDUNDANT. BY NO MEANS, THE LEGISLATURE CAN BE SAI D TO HAVE GIVEN LATITUDE TO THE MASSIVE PILING OF SUCH SET-ASIDE CASES AS BEFORE. 2.5.8. IT WAS ALSO ARGUED BY THE LEARNED AR FROM D IFFERENT ANGLE FROM THE ASPECT OF PROVISIONS OF SECTION 240 OF THE ACT. HE STATED TH AT SECTION 240 OF THE ACT IN ITS PROVISO SAYS THAT WHERE AN ASSESSMENT IS SET ASIDE OR CANCELLED, AND AN ORDER OF FRESH ASSESSMENT IS DIRECTED TO BE MADE, THE ASSESSEE IS NOT ENTITLED TO REFUND OF THE TAX COLLECTED ON THE DISPUTED ADDITIONS AS A SEQUEL TO EFFACEMENT OF THE FIRST ORDER. IN THE CASE BEFORE US, THE DEMAND RAISED ON THE FIRST ASSE SSMENT WAS COLLECTED BY THE LEARNED AO BY COERCIVE ACTION. THE ASSESSEE APPLIED FOR RE FUND CONSEQUENT TO THE CANCELLATION OF THE ASSESSMENT TO BE MADE AFRESH. THE LEARNED A O DID NOT ALLOW THE REFUND ON THE STRENGTH OF THE STATUTORY PROVISION IN THE PROVISO TO SECTION 240 OF THE ACT. HE ARGUED THAT THE LEARNED AO HAD THUS CONTRADICTED HIMSELF B Y SAYING IN THE REMAND REPORT THAT THE PRESENT ASSESSMENT IS NOT A CASE OF ASSESSMENT BEING SET ASIDE. HE ARGUED THAT BY LEARNED AOS LOGIC, HE COULD NOT HAVE DENIED THE RE FUND OF THE TAX COLLECTED IN PURSUANCE OF THE FIRST ORDER. 2.5.9. WE FIND THAT THE CASE LAW RELIED UPON BY TH E LEARNED DR ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF RAJASTHAN R.S.S. & GINNING MILLS FED. LTD VS DCIT REPORTED IN (2014) 45 TAXMANN.COM 1 (SC) IS NOT AT ALL APPLICABLE TO THE FACTS OF THE INSTANT CASE. THE ISSUE BEFORE THE SUPREME COURT W AS IN THE CONTEXT OF CARRY FORWARD ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 10 OF LOSSES IN CASE OF AMALGAMATION. IT HELD THAT T HE TAXING STATUTE SHOULD BE VIEWED VERY STRICTLY AND NO WORDS CAN BE READ INTO THE SEC TION. WE ARE ALSO IN AGREEMENT WITH THE SAID PROPOSITION THAT THE TAXING STATUTES ARE T O BE VIEWED VERY STRICTLY. BUT IN THE INSTANT CASE, THERE IS NO QUESTION OF INSERTING OF WORDS INTO THE SECTION AS ARGUED BY THE LEARNED DR. 2.5.10. WE HOLD THAT IT MAKES NO SENSE IN DISTINGUI SHING THE RESTORATION OF AN ORDER FROM SETTING ASIDE AN ORDER. THUS THE LEARNED CITA IS IN ERROR BY SAYING THAT BY RESTORING AN ASSESSMENT , THE TRIBUNAL DID NOT SET ASIDE THE ASSESSMENT AND RESULTANTLY THE FRESH ASSESSMENT IS IMMUNE FROM THE LIMITATION U/S 153(2A) OF THE ACT. WE FIND THAT THE LEARNED AO INFACT HAD UNDERSTOOD THE WORD RESTORED AS MEANING SET ASIDE BECAUSE HE WITHHELD THE REFUND OF THE TAX COLLECTED BEFORE THE TRIBUNALS ORDER BY PLACING RELIANCE ON SECTION 240 OF THE ACT TOGETHE R WITH ITS PROVISO. THIS ACT OF WITHHOLDING THE REFUND PENDING THE FRESH ASSESSMENT IN THE CASE IS CONCESSION ON THE PART OF THE LEARNED AO THAT THE TRIBUNALS ORDER IS ONE SETTING ASIDE THE ORDER FOR ASSESSMENT DE NOVO. THUS WE FIND THAT THE LEARNED AO HAD SELF REPUDIATED BY STATING THAT THE TRIBUNAL HAD NOT SET ASIDE THE ORDER. 2.5.11. WE FIND THAT THE FOLLOWING DECISIONS RELIE D ON BY THE LEARNED AR ARE VERY WELL PLACED AND WHICH ARE SQUARELY APPLICABLE TO TH E FACTS OF THE INSTANT CASE:- (A) DECISION OF HONBLE DELHI HIGH COURT IN THE CASE O F CIT VS BHAN TEXTILE P LTD REPORTED IN (2008) 300 ITR 176 (DEL) , WHEREIN IT WAS HELD THAT :- ASSESSMENT LIMITATION COMMISSIONER (APPEALS) DIRECTING ASSESSING OFFICER TO PASS AN ORDER UNDER SECTION 144 AND GIVE ASSESSEE OPPORTUNITY TO FILE I TS EVIDENCE ASSESSMENT MUST BE TAKEN TO HAVE BEEN SE T ASIDE LIMITATION UNDER SECTION 153(2A) APPLIES NOT A CASE OF ASSESSMENT TO GIVE EFFECT TO FINDING INCO ME TAX ACT, 1961, SS. 144, 153. ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 11 ON AN APPEAL AGAINST THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER, THE COMMISSIONER (APPEALS) RESTORED THE MATTER TO T HE FILE OF THE ASSESSING OFFICER, SO THAT ONE MORE OPPORTUNITY COULD BE GIVE N TO THE ASSESSEE TO FILE EVIDENCE AND HELD THAT GROUND NO. 2 OF THE APPEAL W AS TREATED AS ALLOWED. THE ASSESSING OFFICER ISSUED A NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT, 1961 , FOR MAKING A FRESH ASSESSMENT. THE ASSESSEE CONTENDED THA THE NOTICE WAS BARRED BY LIMITATION UNDER THE PROVI SIONS OF SECTION 153(2A) OF THE ACT. SINCE THE ASSESSEE DID NOT CO-OPERATE WITH THE ASSESSING OFFICER, THE ASSESSMENT, AS ORIGINALLY FRAMED, WAS ONCE AGAI N MADE BY THE ASSESSING OFFICER. THE COMMISSIONER (APPEALS) HELD THAT THE CASE WAS COVERED UNDER SECTION 153(3)(II) OF THE ACT AND THE RE WAS NO TIME LIMIT FIXED FOR MAKING THE ASSESSMENT. THE TRIBUNAL HELD THAT THE PROVISIONS OF SECTION 153(2A) OF THE ACT WERE APPLICABLE AND NOT SECTION 153(3)(II) OF THE ACT. ON APPEAL: HELD, DISMISSING THE APPEAL, THAT ALTHOUGH THE OPER ATIVE PORTION OF THE ORDER PASSED BY THE COMMISSIONER (APPEALS) DID NOT SPECIFICALLY SAY THAT THE ORDER OF THE ASSESSING OFFICER HAD BEEN SET ASI DE OR CANCELLED SINCE GROUND NO. 2 OF THE APPEAL FILED BY THE ASSESSEE WA S ALLOWED, BY NECESSARY IMPLICATION, THE ASSESSMENT ORDER WAS SET ASIDE TO THE EXTENT IT DID NOT GIVE THE ASSESSEE OPPORTUNITY TO PLACE ITS EVIDENCE. TH EREFORE, SECTION 153(2A) WAS APPLICABLE . (B) DECISION OF THE HONBLE GUJARAT HIGH COURT IN T HE CASE OF INSTRUMENTS AND CONTROL CO. VS CCIT AND OTHERS REPORTED IN (2012) 3 49 ITR 571 (GUJ) , WHEREIN IT WAS HELD THAT : 25. TO OUR MIND, THE CASE ON HAND WOULD FALL UNDER SUB-SECTION (2A) OF SECTION 153 OF THE ACT. THE TRIBUNAL MAY NOT HAVE U SED THE WORDS OF SETTING ASIDE THE ASSESSMENT, NEVERTHELESS, WHEN IT REMITTED THE MATTER BACK TO THE ASSESSING OFFICER FOR SUMMONING TWO WIT NESSES AGAIN FOR CROSS- EXAMINATION BY THE ASSESSEE AND PERMITTED FURTHER P ROBE TO THE ASSESSING OFFICER, NECESSARILY, IT MUST BE UNDERSTOOD TO HAVE SET ASIDE THE ASSESSMENT UNDER CHALLENGE. THE TRIBUNAL, OTHERWISE IN LAW, C OULD NOT HAVE REMITTED THE PROCEEDINGS TO THE ASSESSING OFFICER FOR FRESH CONSIDERATION AFTER SUMMONING THE TWO WITNESSES AND CARRYING OUT SUCH P ROBE AS MAY BE NECESSARY. WE MAY RECORD THAT SUCH COMMISSIONS PAI D TO THE TWO AGENCIES WAS THE SOLE DISPUTE BETWEEN THE ASSESSEE AND THE D EPARTMENT. IN THE ORIGINAL ASSESSMENT, THE ASSESSING OFFICER DISCUSSE D ONLY THIS ISSUE AND ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 12 MADE CORRESPONDING DISALLOWANCE. IN ESSENCE, THUS, THE ASSESSING OFFICER WAS REQUIRED TO PASS A FRESH ORDER OF ASSESSMENT WH ICH WAS NECESSARY ON ACCOUNT OF AN ORDER PASSED BY THE TRIBUNAL UNDER SE CTION 254 OF THE ACT CANCELLING THE ASSESSMENT FRAMED BY THE ASSESSING O FFICER. THE PERIOD OF LIMITATION PRESCRIBED IN SECTION 153(2A) , THEREFOR E, WOULD APPLY. WHILE SUCH AN ORDER WAS SERVED ON THE COMMISSIONER ON AUG UST 3, 1994, WITHIN A PERIOD OF TWO YEARS OF THE END OF SUCH FINANCIAL YE AR, A FRESH ORDER OF ASSESSMENT HAD TO BE PASSED BY THE ASSESSING OFFICE R. THE SAME NOT HAVING BEEN DONE, IN OUR VIEW, SUCH PROCEEDINGS HAVE BECOM E TIMEBARRED. THE ASSESSMENT PLACED BEFORE THE ASSESSING OFFICER BY T HE TRIBUNALS ORDER, THEREFORE, MUST BE TREATED AS HAVING ABATED. IN TH AT VIEW OF THE MATTER, THE DECLARATION PRAYED FOR BY THE PETITIONER MUST BE GR ANTED. 26. IN THE RESULT, THE PETITION IS ALLOWED. THE AS SESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 1988-89 IN THE CASE OF THE PRES ENT ASSESSEE IS DECLARED TO HAVE ABATED AS HAVING BECOME TIME-BARRED. THE E XCESS TAX PAID BY THE PETITIONER UNDER THE ORIGINAL ASSESSMENT FRAMED BY THE ASSESSING OFFICER MUST BE REFUNDED WITH CONSEQUENTIAL EFFECT. BY WAY OF ABUNDANT CAUTION, IT IS CLARIFIED THAT THE SELF-ASSESSED TAX PADI BY THE PETITIONER DESPITE NO ASSESSMENT HAVING BEEN FRAMED, CANNOT BE DISTURBED AS HELD BY THE APEX COURT IN THE CASE OF CIT VS SHELLY PRODUCTS (2003) 261 ITR 367 (SC). WE MAY RECALL THAT THE DISPUTED AMOUNTS OF COMMISSION TO THE TWO AGENCIES WAS THE SOLE ISSUE BEFORE THE ASSESSING OFFICER ON WHICH THE DISALLOWANCES WERE MADE. IN OTHER WORDS, THERE WAS NO OTHER ADDI TION MADE BY THE ASSESSING OFFICER WHICH WOULD HAVE SURVIVED DESPITE THE TRIBUNALS ORDER DATED JULY 5, 1994. 27. IN THE RESULT, THE PETIION IS ALLOWED AND DISP OSED OF IN THE ABOVE TERMS. (C ) DECISION OF THE CO-ORDINATE BENCH OF AGRA TRIB UNAL IN THE CASE OF POORAN SINGH VS ACIT REPORTED IN (2006) 100 TTJ 1121 (ITAT AGRA) DATED 30.11.2005 , WHEREIN IT WAS HELD THAT :- 12. FROM THE READING OF THE AFORESAID PROVISIONS IT IS CLEAR THAT THE ASSESSMENT IS TO BE MADE WHEN IT IS SET ASIDE W ITHIN 2 YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SETTIN G ASIDE WAS RECEIVED BY THE CIT OR CHIEF CIT. BUT IN CASE ASSESSMENT IS MAD E TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE ORDER AS GIVE N IN THE SECTION, NO TIME LIMIT IS PRESCRIBED, I.E., THE' EFFECT CAN BE GIVEN WITHIN ANY TIME. IN THIS CASE FROM THE FACTS IT IS CLEAR THAT THE APPELLATE AUTHORITY HAS NOT SET ASIDE THE ASSESSMENT COMPLETELY BUT TWO ISSUES WERE SENT TO THE AO SO THAT THE AO CAN DETERMINE THE INCOME RELATING TO THOSE ISSUE S AND THEREBY WORK ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 13 OUT THE ASSESSED INCOME OF THE ASSESSEE. WHETHER TH IS WILL TANTAMOUNT TO SETTING ASIDE THE ASSESSMENT RELATING TO THOSE ISSU ES. WHENEVER AN ASSESSMENT IS SET ASIDE ALWAYS GENERALLY DIRECTIONS AND FINDINGS ARE GIVEN BY THE APPELLATE AUTHORITY . THEREFORE WE CANNOT HO LD THAT THE PROVISIONS OF S. 153 (2A) WILL NOT APPLY TO SUCH CASES. IN OUR OPINION, IT IS NOT ESSENTIAL THAT THE WORD 'SET ASIDE' SHOULD BE WRITT EN IN E ORDER, WHERE THE ORDER HAS BEEN SET ASIDE, THE ORDER HAS BEEN SET AS IDE MUST BE BORNE OUT OF THE FACTS AND CONTEXT OF THE ORDER. THE PROVISIONS OF S. 153(2A) AND 153(3) ARE TO BE INTERPRETED HARMONIOUSLY. THE WORD 'SET A SIDE' IS DEFINED IN WEBISTER 3RD NEW INTERNATIONAL DICTIONARY AS 'TO PU T TO ONE SIDE, TO DISCARD, TO SET APART FOR A PURPOSE, OVERRULE.' GOI NG TO THE ORDER OF THE CIT(A) RELATING TO THE GROUND NOS. 7 AND 8, WE FIND THAT THE CIT(A) NOTED THAT THE AO HAS NOT GIVEN CREDIT OF THE INSTALMENT RECEIVED BY THE ASSESSEE FOR WORKING OUT THE TOTAL INVESTMENT MADE IN MONEYL ENDING BUSINESS, THEREFORE, HE DIRECTED THE AO TO GIVE ALLOWANCE FOR THE SAME FOR WORKING OUT THE TOTAL INVESTMENT AN A SO DIRECTED THAT FOR THIS PURPOSE PEAK CREDIT SHOULD BE WORKED OUT AND ALLOWANCE MUST BE GIVEN FO R THE PAST SAVINGS MADE BY THE ASSESSEE. FOR WORKING OUT THE INTEREST INCOME, CIT(A) DIRECTED THAT THE RATE OF 24 PER CENT SHOULD BE APP LIED AND THE BUSINESS EXPENDITURE FOR EARNING SUCH INCOME SHOULD BE DEDUC TED FOR WORKING OUT THE NET INCOME FROM INTEREST. THUS DIRECTION WA S GIVEN THAT THE INTEREST INCOME SHOULD BE WORKED OUT ONLY AFTER WORKING OUT THE TOTAL INVESTMENT. THESE DIRECTIONS ARE NOT THE ONES WHICH CAN BE FOLL OWED BY THE AO WITHOUT CALLING THE ASSESSEE AND WITHOUT APPRECIATING THE VARIOUS EVIDENCES/DOCUMENTS WHICH ARE REQUIRED FOR WORKING OUT INSTALMENTS RECEIVED BY THE ASSESSEE, PEAK CREDIT, COMPUTATION OF TOTAL INVESTMENT WORKING OUT THE EXPENDITURE INCURRED FOR BY THE AO BY APPLYING ITS MIND. THIS WILL ALSO TANTAMOUNT TO RESTORING THE ISSUE TO THE FILE OF THE AO TO BE DECIDED AFRESH AFTER GIVING THE HEARING TO THE PART Y AND FOLLOWING THE DIRECTION OF THE CIT(A) . THIS ALSO IMPLIES THAT TH E ASSESSMENT RELATING TO THESE ISSUES STAND SET ASIDE AND TO BE DECIDED AFRE SH IN ACCORDANCE WITH THE DIRECTIONS OF THE CIT(A).) 14. IN VIEW OF THE AFORESAID DISCUSSION, WE ARE OF THE VIEW THAT THE SETTING ASIDE THE ASSESSMENT WILL INCLUDE THEREIN E VEN THE ASSESSMENT, WHICH HAS BEEN SET ASIDE ON SOME OF THE ISSUES BECAUSE AN ASSESSMENT CAN BE REGARDED TO BE COMPLETED ONLY WHEN THE TOTAL TAXABL E INCOME IS DETERMINED AND TAX TO BE PAID BY THE ASSESSEE IS WORKED OUT. U NTIL AND UNLESS, PART OF THE ISSUES ARE NOT DECIDED, THE TOTAL INCOME OF THE ASSESSEE CANNOT BE DETERMINED AND THE AO CANNOT RAISE THE DEMAND FOR T HE TAX PAYABLE BY THE ASSESSEE. THE SETTING ASIDE THE ASSESSMENT COULD BE BORNE OUT OF THE ORDER OF THE AUTHORITIES. WE THEREFORE HOLD THAT THE ORDE RS PASSED BY THE AO ON ITA NOS.1649/K/2010, CO NO. 162/K/2010 & ITA NO. 1676/K/2010 SANJAY JAISWAL-A-AM 14 31ST AUG., 1995 ARE BARRED BY LIMITATION AS THE LIM ITATION AS LAID DOWN UNDER S. 153(2A) WILL APPLY TO THE FACTS OF THE CAS E BEFORE US. ACCORDINGLY, WE QUASH THE ORDERS DT. 30TH AUG., 1995 PASSED BY T HE AO FOR THE ASST. YRS. 1984-:'85 TO 1986-87. SINCE THE ORDERS PASSED BY TH E AO STAND QUASHED, THE OTHER GROUNDS TAKEN BY THE ASSESSS,E ON MERIT DO NO T SURVIVE. 2.5.12. IN VIEW OF THE AFORESAID FACTS AND CIRCUMS TANCES , FINDINGS GIVEN THEREON AND RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENTS RELI ED UPON HEREINABOVE, WE HAVE NO HESITATION TO HOLD THAT THE FRESH ASSESSMENT FRAMED BY THE LEARNED AO ON 25.3.2009 IS BARRED BY LIMITATION IN TERMS OF SECTION 153(2A) OF THE ACT. WE HOLD THAT THE FRESH ASSESSMENT DATED 25.3.2009 IS DECLARED AS A NULLITY . ACCORDINGLY , THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED . AS THE ASSESSMENT HAS BEEN DECLARED AS A NULLITY, THERE IS NO NEED TO ADDRESS OTHER GROUNDS OF THE ASSESSEE AN D REVENUE. 3. IN THE RESULT, THE CROSS OBJECTION OF THE ASSES SEE IS ALLOWED , APPEALS OF THE ASSESSEE AND REVENUE ARE DISMISSED AS INFRUCTUOUS. O RDER PRONOUNCED IN THE COURT ON 23 .03.2016 SD/- SD/- [N.V.VASUDEVAN ] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23.03.2016 COPY OF THE ORDER FORWARDED TO: 1. . THE DEPARTMENT: THE DCIT, CIRCLE-48, KOLKATA. 2 THE ASSESSEE: SHRI SANJAY JAISWAL 351 NETAJI SUBHAS ROAD, HOWRAH 711101. 3 / THE CIT, 4.THE CIT(A) 5 . DR, KOLKATA BENCH 6 . GUARD FILE . TRUE COPY, BY ORDER, ASSTT REGISTRAR **PRADIP SPS