The ITO, Ward-2(3), Baroda V. Shri Krishnakant Motibhai Patel (HUF), Baroda

ITA 1990/AHD/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8577 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2002-2003
• Appeal Filed On: 03-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Keywords: Period of limitation; Validity of assessment
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI MANISH BORAD , ACCOUNTANT MEMBER THE ITO, WARD - 2(3), BARODA (APPELLANT) VS SHRI DILIPBHAI MOTIBHAI PATEL(HUF), SHIV SHAKTI, SHASTRI CHOWK, GORWA, BARODA - 390016 PAN: AAEHP6529H (RESPONDENT) THE ITO, WARD - 2(3), BARODA (APPELLANT) VS SHRI KRISHNAKANT MOTIBHAI PATEL (HUF), SHIV SHAKTI, SHASTRI CHOWK, GORWA, BARODA - 390016 PAN: AAEHP6530H (RESPONDENT) REVENUE BY : S H RI V.K. SINGH , SR. D . R. ASSESSEE BY: S H RI MUKUND BAKSHI , A.R. DATE OF HEARING : 04 - 04 - 2 018 DATE OF PRONOUNCEMENT : 09 - 04 - 2 018 / ORDER I T A NO . 1989 / A HD/20 14 A SSESSMENT YEAR 200 2 - 03 ITA NO . 1990 /AHD/20 14 ASSESSMENT YEAR 200 2 - 03 I.T.A NO S . 1989 & 1990 /AHD/20 14 A.Y. 2002 - 03 PAGE NO ITO VS. SHRI DILIPBHAI MOTIBHAI PATEL (HUF) & SHRI KRISHNAKANT MOTIBHAI PATEL (HUF) 2 P ER : MANISH BORAD , ACCOUNTANT MEMBER : - THESE TWO APPEAL S BY REVENUE RE LATING TO DIFFERENT ASSESSES PERTAINING TO SAME ASSESSMENT YEAR I.E. 2002 - 03 ARE DIRECTED AGAINST THE CONSOLIDATED ORDER OF CIT(A) - II, BARODA DATED 20 TH MARCH, 2017 ARI SING OUT OF THE ORDERS PASSED U/S. 143(3) R.W.S. 147 R.W.S. 254 OF THE IT ACT ON 30 TH JAN, 2013 2013 FRAMED BY ACIT, CIRCLE - 2 BARODA. 2. AS THE ISSUE RAISED IN BOTH THESE APPEALS BY THE REVENUE ARE COMMON AND ARISING OUT OF THE SAME ORDER OF LD. CIT(A). THEY ARE HEARD TOGETHER AND ARE BEING DIS POSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. GROUNDS RAISED BY ITA NO . 1989/AH D /2014 ARE AS FOLLOWS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRE D IN ANNULLING THE RE - ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AFTER HOLDING THAT THE NOTICE U/S 148 OF THE ACT ISSUED ON 15.12.20011 WAS TIME BARRED ON THE GROUND THAT THE ASSESSMENT CARRIED OUT BY THE ASSESSING OFFICER WAS NOT TO GIVE EFFECT TO A NY FINDING OR DIRECTION CONTAINED IN THE ORDER PASSED BY THE TRIBUNAL EVEN THOUGH THERE IS CLEAR CUT DIRECTION IN THE HON'BLE ITAT'S ORDER IN THIS REGARD. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER OF LD. CIT(A) IS PERVERSE IN HOLDING THAT IN HIS OPINION THE DIRECTION GIVEN BY THE HON'BLE ITAT WAS NOT TO BE CONSTRUED AS DIRECTION DESPITE THE FOLLOWING DIRECTION OF THE HON'BLE ITAT - 'WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO EXCLUDE THE SAME AND TAX ON SUBSTANTIVE BASIS IN REGULAR ASSESSMENT OF ALL THE THREE ASSESSEES FOR A.Y. 2002 - 03.' 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THAT PROVISIONS OF SECTION 253(2)(II) OF THE ACT REFERS BOTH TO 'DIRECTION OR FINDI NGS' BY APPELLATE AUTHORITIES AND LD. CIT (A) ERRED IN DISMISSING THE DIRECTION OF THE ITAT AS NEITHER DIRECTION NOR FINDINGS. I.T.A NO S . 1989 & 1990 /AHD/20 14 A.Y. 2002 - 03 PAGE NO ITO VS. SHRI DILIPBHAI MOTIBHAI PATEL (HUF) & SHRI KRISHNAKANT MOTIBHAI PATEL (HUF) 3 4. THE LD. CIT (A) HAS ERRED IN RELYING ON THE DECISION OF HON'BLE ITAT IN THE CASE OF WESTERN INDIA CERAMICS PVT. LTD. IN ITA N O. 2050/AHD/1988 DATED 18.09.2008. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE RE - ASSESSMENT ORDER WAS REQUIRED TO HAVE BEEN PASSED ON OR BEFORE 31.03.2012 AND THAT THE ORDER BEING MADE ON 30.01.2 013 IS BEYOND THE LIMITATION PRESCRIBED WITHOUT CONSIDERING THE PROVISIONS OF SECTION 150 OF THE ACT, WHICH IS APPLICABLE ON THE FACTS OF THE CASE. 4. GROUNDS RAISED BY ITA NO . 1990 /AH D /2014 ARE AS FOLLOWS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ANNULLING THE RE - ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AFTER, HOLDING THAT THE NOTICE U/S 148 OF THE ACT ISSUED ON 15.12.20011 WAS TIME BARRED ON THE GROUND THAT THE ASSESSMENT CARRIED OUT BY THE ASSESS ING OFFICER WAS NOT TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE ORDER PASSED BY THE TRIBUNAL EVEN THOUGH THERE IS CLEAR CUT DIRECTION IN THE HON'BLE ITAT'S ORDER IN THIS REGARD. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, T HE ORDER OF LD. CIT(A) IS PERVERSE IN HOLDING THAT IN HIS OPINION THE DIRECTION GIVEN BY THE HON'BLE ITAT WAS NOT BE CONSTRUED AS DIRECTION DESPITE THE FOLLOWING DIRECTION OF THE HON'BLE ITAT - 'WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO EXCLUDE THE SAME AND TAX ON SUBSTANTIVE BASIS IN REGULAR ASSESSMENT OF ALL THE THREE ASSESSEES FOR A.Y. 2002 - 03.' 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THAT PROVISIONS OF SECTION 253(2)(II) OF THE ACT R EFERS BOTH TO 'DIRECTION OR FINDINGS' BY APPELLATE AUTHORITIES AND LD. CIT (A) ERRED IN DISMISSING THE DIRECTION OF THE ITAT AS NEITHER DIRECTION NOR FINDINGS. 4. THE LD. CIT (A) HAS ERRED IN RELYING ON THE DECISION OF HON'BLE ITAT IN THE CASE OF WESTERN INDIA CERAMICS PVT. LTD. IN ITA NO. 2050/AHD/1988 DATED 18.09.2008. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE RE - ASSESSMENT ORDER WAS REQUIRED TO HAVE BEEN PASSED ON OR BEFORE 31.03.2012 AND THA T THE ORDER BEING MADE ON 30.01.2013 IS BEYOND THE LIMITATION PRESCRIBED WITHOUT CONSIDERING THE PROVISIONS OF SECTION 150 OF THE ACT, WHICH IS APPLICABLE O N THE FACTS OF THE CASE. I.T.A NO S . 1989 & 1990 /AHD/20 14 A.Y. 2002 - 03 PAGE NO ITO VS. SHRI DILIPBHAI MOTIBHAI PATEL (HUF) & SHRI KRISHNAKANT MOTIBHAI PATEL (HUF) 4 5. AT THE OUTSET, LEANED COUNSEL FOR THE ASSESSEE SUBMITTED THAT BOTH THES E APPEALS ARE SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF CO - ORDINATE BENCH VID E ITA NO. 1991/AHD/2014 DATED 15 - 02 - 2018 IN THE CASE OF ACIT VS. RAMANBHAI PATEL HUF. LD. COUNSEL FURTHER SUBMITTED THAT THE CONSOLIDATED ORDER PASSED BY LD. CIT (A) DATED 20 TH MARCH, WAS FOR THREE ASSES SEES NAMELY; RAMANBHAI M. PATEL ( HUF ) , KRISHNA PATEL ( HUF ) AND DILIPBHAI PATEL ( HUF ) . THE CO - ORDINATE BENCH HAS DECIDED AGAIN ST THE REVENUE IN THE APPEAL FI L ED BY REVENUE IN T H E CASE OF RAMANBHAI M PATEL ( HUF ) . I T WAS ALSO BROUGHT TO OUR NOTICE THAT THE GROUNDS ADJUDICATED BY THE T RIBUNAL IN ITS ORDER DATED 15 - 02 - 2018 ARE SIMILAR TO T HE GROUNDS RAISED IN THE INSTANT TWO APPEALS BY REVENUE AND THE COMMON ISSUE RELA T ES TO VALIDITY OF ASSESSMENT ORDER AS WELL AS LIM ITATION PERIOD FOR ISSUANCE OF NOTICES U/S. 148 OF THE ACT. 6. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CON TROVERT THE SUBMISSIONS MADE BY THE LEARNED COUNSEL. 7. WE HAVE HEA RD RIVAL CONTENTIONS AND PERUSED THE RECORDS CAREFULLY PLA CED BEFORE US. IN BOTH THESE APPEALS IN THE CASE OF KRISHNA M. PATEL ( HUF ) AND DILIPBHAI M PATEL ( HUF ), REVENUE HAS CHALLENGED THE FINDING S OF LD. CIT(A) HOLDING THE ASSESSMENT U/S. 143(3) R.W.S. 147 R.W.S. 254 OF THE ACT INVALID AND FURTHER HOLDING THAT THE IMPUGNED ASSESSMENT ORDER WAS REQUIRED TO BE PASSED ON OR BEFORE 31 ST MARCH, 2012 WHEREAS THE LD. ASSESSING OFFICER HAS PASSED IMPUGNED ASSESSMENT ON 30 TH JAN, 2013. I.T.A NO S . 1989 & 1990 /AHD/20 14 A.Y. 2002 - 03 PAGE NO ITO VS. SHRI DILIPBHAI MOTIBHAI PATEL (HUF) & SHRI KRISHNAKANT MOTIBHAI PATEL (HUF) 5 8. WE FURTHER OBSERVE THAT THIS COMMON FINDINGS OF THE LD. CIT(A) IN CASE OF THREE AS SESSEES AS MENTIONED ABOVE WAS CONFIRMED IN CASE OF ONE OF THE ASSESSEES, NAMELY; SHRI RAMANBHAI M PATEL (HUF) BY THE CO - ORDINATE BENCH IN I T S ORDER DATED 15 - 02 - 2018 OBSERVING AS FOLLOWS : - 10. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTH ORITIES BELOW. SECTION 153(3) OF THE ACT AS IT STOOD DURING THE RELEVANT ASSESSMENT YEAR: - (3) THE PROVISIONS OF SUB - SECTIONS (1) AND (2) SHALL NOT APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS, REASSESSMENTS AND RECOMPUTATIONS WHICH MAY, SUBJECT TO THE PROVISIONS OF SUB - SECTION (2A),] BE COMPLETED AT ANY TIME - (I) [***] (II)WHERE THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION 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 OR IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERWISE 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 ASSE SSMENT MADE ON THE FIRM UNDER SECTION 147. 11. AND SECTION 153(6) READS AS UNDER: - 6) NOTHING CONTAINED IN SUB - SECTIONS (1) AND (2) SHALL APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS, REASSESSMENTS AND RECOMPUTATION WHICH MAY, SUBJECT TO THE PROVISIONS O F SUB - SECTIONS (3) AND (5), BE COMPLETED (I) WHERE THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION 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, SECTIO N 254, SECTION 260, SECTION 262, SECTION 263, OR SECTION 264 OR IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERWISE THAN BY WAY OF APPEAL OR REFERENCE UNDER THIS ACT, ON OR BEFORE THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH SUCH ORDER IS RECEIVED OR PASSED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER, AS THE CASE MAY BE; OR (II) 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 FIRM UNDER SECTION 147, ON OR BEFOR E THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH THE ASSESSMENT ORDER IN THE CASE OF THE FIRM IS PASSED. 12. THE DATE OF THE ORDER OF THE TRIBUNAL IS 11.06.2010. RECEIPT OF THE SAID ORDER BY THE LD. COMMISSIONER IS BEFORE 31.03.2011. THEREFOR E, THE LIMITATION FOR PASSING AN ORDER GIVING EFFECT TO THE ORDER OF THE HON BLE ITAT U/S. 153(2A) WOULD BE ON OR BEFORE 31.03.2012 AND THE ASSESSMENT ORDER UNDER APPEAL IS DATED 30.01.2013. THEREFORE, IN THE LIGHT OF THE PROVISIONS OF SECTION 153(2A) OF THE ACT ,THE ASSESSMENT IS BARRED BY LIMITATION AS SECTION 153(2A) AS IT STOOD READ AS UNDER: - (2A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB - SECTIONS (1) , (1A), (1B) AND (2), IN RELATION TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1971, AN D 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 TH E END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OR, AS THE I.T.A NO S . 1989 & 1990 /AHD/20 14 A.Y. 2002 - 03 PAGE NO ITO VS. SHRI DILIPBHAI MOTIBHAI PATEL (HUF) & SHRI KRISHNAKANT MOTIBHAI PATEL (HUF) 6 CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE CHIEF COMMISSIONER OR COMMISSIONER: PR OVIDED THAT WHERE THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OR, AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE CHIEF COMMISSIONER OR COMMISSIONER, ON OR AFTER THE 1ST D AY OF APRIL, 1999 BUT BEFORE THE 1ST DAY OF APRIL, 2000, SUCH AN ORDER OF FRESH ASSESSMENT MAY BE MADE AT ANY TIME UP TO THE 31ST DAY OF MARCH, 2002 : PROVIDED FURTHER THAT WHERE THE ORDER UNDER SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSI ONER OR, AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE COMMISSIONER ON OR AFTER THE 1ST DAY OF APRIL, 2005, THE PROVISIONS OF THIS SUB - SECTION SHALL HAVE EFFECT AS IF FOR THE WORDS ONE YEAR , THE WORDS NINE MONTHS HAD B EEN SUBSTITUTED: PROVIDED ALSO THAT WHERE THE ORDER UNDER SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OR, AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE COMMISSIONER ON OR AFTER THE 1ST DAY OF APRIL, 2 006, AND DURING THE COURSE OF THE PROCEEDINGS FOR THE FRESH ASSESSMENT 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 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 PRINC IPAL COMMISSIONER OR COMMISSIONER ON OR AFTER THE 1 ST DAY OF APRIL, 2010, AND DURING THE COURSE OF THE PROCEEDING FOR THE FRESH ASSESSMENT 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. 13. WE DRAW SUPPORT FROM THE JUDGMENT OF HON BLE HIGH COURT OF DELHI IN THE CASE OF NOKIA INDIA PVT. LTD. IN W .P. (C) NO. 1773 OF 2016 ORDER IS DATED 21.09.2017, THE RELEVANT PART OF THE JUDGMENT IS AS UNDER: - 22. HAVING PERUSED THE IMPUGNED ORDER OF THE ITAT CAREFULLY AND THE OPERATIVE PORTIONS QUA WHICH THE ASSESSMENT ORDER WAS SET ASIDE AND THE MATTER REMANDED TO THE AO, THE COURT IS UNABLE TO AGREE WITH THE CONTENTION OF LEARNED ASG THAT THE AFOREMENTIONED ORDER OF THE ITAT DID NOT CONSTITUTE A COMPLETE SETTING ASIDE OF THE ASSESSMENT WITH DIRECTIONS TO THE AO TO PASS A FRESH ORDER. THE COURT DOES NOT AGREE WI TH THE SUBMISSION OF THE LEARNED ASG THAT THE AO WAS 'CHAINED' BY THE ITAT'S DIRECTIONS AND COULD NOT HAVE PASSED A FRESH ASSESSMENT ORDER DE NOVO PURSUANT TO SUCH REMAND. 23. THE COURT IS ALSO UNABLE TO AGREE WITH THE CONTENTION THAT UNLESS THE ENTIRE AS SESSMENT ORDER IS WHOLLY SET ASIDE, THE TIME LIMIT FOR PASSING THE FRESH ORDER UNDER SECTION 153 (2A) WOULD NOT BE ATTRACTED. THERE IS NO WARRANT FOR SUCH AN INTERPRETATION. THE OBJECT BEHIND INTRODUCTI ON OF SUB - SECTION (2A) WAS TO PRESCRIBE A TIME LIMIT FOR COMPLETING THE ASSESSMENT PROCEEDINGS UPON THE ORIGINAL ASSESSMENT BEING SET ASIDE OR BEING CANCELLED IN APPEAL. CLEARLY, THE INTENTION WAS NOT TO RESTRICT THE APPLICABILITY OF SUB - SECTION (2A) ONLY TO SUCH CASES WHERE THE 'ENTIRE' ORIGINAL ASSESSMENT ORDER IS SET ASIDE. IT WAS NOTED THAT, I.T.A NO S . 1989 & 1990 /AHD/20 14 A.Y. 2002 - 03 PAGE NO ITO VS. SHRI DILIPBHAI MOTIBHAI PATEL (HUF) & SHRI KRISHNAKANT MOTIBHAI PATEL (HUF) 7 'UNDER THE EXISTING PROVISIONS OF SECTION 153 (3), SUCH FRESH ASSESSMENTS ARE NOT SUBJECT TO 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 PAS SED THEREUNDER TO BE ISSUED WITHIN ANY PARTICULAR TIME LIMIT. FURTHER 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 D IRECTION THAT THE ISSUE HAS TO BE DETERMINED AFRESH, SECTION 153 (2 A) OF THE ACT WOULD GET ATTRACTED. 24. WHAT IS IMPORTANT TO NOTE IS 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 THER EAFTER 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. 25. IN THE PRESENT CASE, OF THE SEVEN ISSUES, THE ASSESSMENT IN RESPECT OF FIVE WAS SET ASIDE AND THE ISSUES REMANDED FOR A FRESH DETERMINATION. WHETHER THE REMAND WAS TO THE TPO OR THE DRP WOULD NOT MAKE A DIFFERENCE AS LONG AS WHAT RESULTS FROM THE REMAND IS A FRESH ASSESSMENT OF THE ISSUE. CLEARLY, THEREFORE, THE TIME LIMIT FOR COMPLETING THAT EXERCISE WAS GOVERNED BY SECTION 153 (2 A) OF THE ACT . 14. A SIMILAR ISSUE WAS ALSO CONSIDERED IN THE CASE OF INSTRUMENTS AND CONTROL CO. IN 349 ITR 571. IT WAS OBSERVED BY THE HON BLE HIGH COURT OF GUJARAT : - '22. UNDER THE CIRCUMSTANCES, THE CLASS OF CASES OF FRESH ASSESSMENT TO BE MADE PURSUANT TO ORDER UNDER SECTION 250 ETC. WOULD FALL UNDER SECTION (2A) OF SECTION 153 OF THE ACT, AND THE PERIOD OF LIMITATION PRESCRIBED THEREIN WOULD OPERATE. IN THOSE CASES WHERE THERE IS NO NEED FOR A FRESH ASSESSMENT AND ARE NOT COVERED UNDER SECTION (2A) OF SECTION 153 OF THE ACT, BUT ARE COVERED UNDER CLAUSES (I), (II) AND (III) O F SECTION 153 , THE LIMITATION PRESCRIBED UNDER SUB - SECTION (2A) OF SECTION 153 WOULD NOT APPLY AND THE EXPRESSION 'ASSESSMENT, REASSESSMENT AND RE - C OMPUTATION BE COMPLETED AT ANY TIME' MAY ENABLE THE REVENUE TO CONTINUE THE PROCEEDINGS OF ASSESSMENT EVEN BEYOND THE PERIOD PRESCRIBED UNDER SUB - SECTIONS (1) AND (2) OF SECTION 153 OF THE ACT AND WOULD ALSO NOT BE HINDERED BY THE PRESCRIPTION OF LIMITATION UNDER SECTION (2A) OF SECTION 153 OF THE ACT.' 31. THE FACTS AND CONCLUSION OF THAT CASE ARE SET OUT BY THE GUJARAT HIGH COURT IN PARAS 24 AND 25 OF THE ABOVE DECISION AS UNDER: '24. WITH THIS BACKGROUND IN MIND, WE MAY REVERT BACK TO THE FACTS OF THE CASE. THE TRIBUNAL ON AN APPEAL FILED BY THE ASSESSEE, UPHELD THE ASSESSEE'S CONTENTION THAT THE COMMISSION WAS DISALLOWED IN CASE OF TWO AGENCIES, PLACING RELIANCE ON STATEMENTS RECORDED BEHIND THE BACK OF THE ASSESSEE WITHOUT AFFORDING THE CROSS - EXAMINATION OF SUCH WITNESSES. IT WAS ON THIS COUNT THAT THE TRIBUNAL REMITTED THE MATTER TO THE FILE OF ASSESSING OFFICER WITH DIRECTION TO SUMMON THOSE TW O PARTIES AGAIN AND ALLOW THE ASSESSEE AN OPPORTUNITY TO CROSS - EXAMINE THEM SO THAT TRUE FACTS MAY EMERGE IN RELATION TO THE PAYMENT OF COMMISSION BY THE ASSESSEE COMPANY TO THESE TWO AGENCIES. WHILE DOING SO, (BE TRIBUNAL ALSO GRANTED LIBERTY TO THE ASSES SING OFFICER TO PROBE INTO THE MATTER I.T.A NO S . 1989 & 1990 /AHD/20 14 A.Y. 2002 - 03 PAGE NO ITO VS. SHRI DILIPBHAI MOTIBHAI PATEL (HUF) & SHRI KRISHNAKANT MOTIBHAI PATEL (HUF) 8 FURTHER BY WAY OF AN INQUIRY AND INVESTIGATION INTO THE ALLEGED PAYMENT OF COMMISSION TO SUCH PARTIES. 25. TO OUR MIND, THE CASE ON BAND WOULD FALL UNDER SUB - SECTION (2A) OF SECTION 153 OF THE ACT. THE TRIBUNAL MAY NOT HAVE USED THE WORDS OF 'SETTING ASIDE THE ASSESSMENT', NEVERTHELESS, WHEN IT REMITTED THE MATTER BACK TO THE ASSESSING OFFICER FOR SUMMONING TWO WITNESSES AGAIN FOR CROSS - EXAMINATION BY THE ASSESSEE A ND PERMITTED FURTHER PROBE TO THE ASSESSING OFFICER, NECESSARILY IT MUST BE UNDERSTOOD TO HAVE SET ASIDE THE ASSESSMENT UNDER CHALLENGE. THE TRIBUNAL, OTHERWISE IN LAW, COULD NOT HAVE REMITTED THE PROCEEDINGS TO THE ASSESSING OFFICER FOR FRESH CONSIDERATIO N AFTER SUMMONING TWO WITNESSES AND CARRYING OUT SUCH PROBE AS MAY BE NECESSARY. WE MAY RECORD THAT SUCH COMMISSIONS PAID TO THE TWO AGENCIES WAS THE SOLE DISPUTE BETWEEN THE ASSESSEE AND THE DEPARTMENT. IN THE ORIGINAL ASSESSMENT, THE ASSESSING OFFICER DI SCUSSED ONLY THIS ISSUE AND MADE CORRESPONDING DISALLOWANCE. IN ESSENCE, THUS, THE ASSESSING OFFICER WAS REQUIRED TO PASS A FRESH ORDER OF ASSESSMENT WHICH WAS NECESSARY ON ACCOUNT OF AN ORDER PASSED BY THE TRIBUNAL UNDER SECTION 254 OF THE ACT CANCELLING THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER. THE PERIOD OF LIMITATION PRESCRIBED IN SECTION 153(2A) , THEREFORE, WOULD APPLY. WHILE SUCH AN ORDER WAS SERVED ON THE COMMISSIONER ON 3.8.1994, WITHIN A PERIOD OF TWO YEARS OF THE END OF SUCH FINANCIAL YEAR, A FRESH ORDER OF ASSESSMENT HAD TO BE PASSED BY THE ASSESSING OFFICER. THE SAME NOT HAVING BEEN DONE, IN OUR VIEW, SUCH PROCEEDINGS HAVE BECOME TIME - BARRED. THE ASSESSMENT PLACED BEFORE THE ASSESSING OFFICER BY THE TRIBUNAL'S ORDER, THEREFORE, MUST BE TREATED AS HAVING ABATED. IN THAT VIEW OF THE MATTER, THE DECLARATION PRAYED FOR BY THE PETITIONER MUST BE GRANTED.' 32. IN THE CONSIDERED VIEW OF THE COURT, THE AFORESAID DECISION OF THE GUJARAT HIGH COURT FULLY SUPPORTS THE CASE OF THE ASSESSEE HERE. THE DECISIONS OF THE MADHYA PRADESH HIGH COURT IN GULABCHAND MOTILAL V. COMMISSIONER OF INCOME - TAX [1 988] 174 ITR 117 (MP), THE HIGH COURT OF PUNJAB AND HARYANA IN BHARTI ENGINEERING CORPORATION V. UNION OF INDIA [2008] 298 ITR 400 ( P&H) AND DEEP CHAN D JAIN V. ITO [1984] 145 ITR 676 (P&H), AND THE KARNATAKA HIGH COURT IN CIT V. PAUL NOEL RODRIGUES [2015] 231 TAXMAN 811 (KAR), ALL HOLD LIKEWISE. THE KERALA HIGH COURT IN PATEL R.P. V. ACIT 2015 (5) KHC 370 HELD THAT SECTION 153 (2 A) OF THE ACT WOULD APPLY EVEN WHERE MORE THAN ONE ISSUE IS INVOLVED I.E. EVEN WHERE ONE OF THE ISSUES HAS BEEN REMANDED TO THE AO FOR A FRESH DETERMINATION. 33. THE ANALYSIS OF THE TERMS 'FINDING' AND 'DIRECTIONS' BY THE SUPREME COURT IN RAJINDER NATH (SUPRA) WAS IN THE CONTEXT OF SECTION 153 (3) (II) OF THE ACT AT A TIME WHEN SECTION 153 (2 A) OF THE ACT HAD NOT BEEN INTRODUCED SINCE THE RELEVANT AY IN TH AT CASE WAS 1956 - 57. THE SAID DECISION IS, THEREFORE, NOT OF HELP TO THE REVENUE. 15. IN THE LIGHT OF THE AFOREMENTIONED JUDICIAL DECISIONS, WE DO NOT FIND ANY ERROR OR INFIRMITY IN THE FINDINGS OF THE LD. CIT(A). APPEAL FILED BY THE RE VENUE IS ACCORDINGLY D ISMISSED. I.T.A NO S . 1989 & 1990 /AHD/20 14 A.Y. 2002 - 03 PAGE NO ITO VS. SHRI DILIPBHAI MOTIBHAI PATEL (HUF) & SHRI KRISHNAKANT MOTIBHAI PATEL (HUF) 9 9. WE FURTHER FIND THAT THE LD. DEPARTMENTAL REPRESENTATIVE FAI LED TO BRING ANY DISTINCTIVE FACTS IN THE INSTANT TWO APPEALS IN COMPARISON TO T HE FACTS OF THE APPEAL DECIDED BY THE T RIBUNAL IN ONE OF T HE THREE ASSESSEES. WE THEREFORE RESPECTFU LLY FOLLOWING THE DECISION OF THE TRIBUNAL AND IN GIVEN FACTS AND CIRCUMSTANCES OF THE CASE FIND NO REASON TO INTERFERE IN THE FINDINGS OF THE LD. CIT(A) HOLDING THE IMPUGNED A SSESSMENT AS INVALID . ACCORDINGLY, BOTH T HE APPEALS OF THE REVENUE STAND DISMISSE D . ORDER PR ONOUNCED IN THE OPEN C OURT ON 09 - 04 - 201 8 SD/ - SD/ - ( MAHAVIR PRASAD ) ( MANISH BORAD ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 09 /04 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,