The ACIT, Circle-2(1), Baroda V. Shri Ramanbhai M. Patel (HUF), Baroda

ITA 1991/AHD/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6040 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 26-07-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 03-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Loose papers; Period of limitation; Cost of acquisition
• Section: 143(3); 54B; 148; 37; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 1991/AHD/2014 (ASSESSMENT YEAR: 2002-03) THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-2(1), BARODA V/S SHRI RAMANBHAI M PATEL (HUF) SHIV SHAKTI, SHASTRI CHOWK, GORWA, BARODA-16 (APPELLANT) (RESPONDENT) PAN: AAPPT0319Q APPELLANT BY : SHRI UMA SHANKAR PRASAD, S R. D.R. RESPONDENT BY : SHRI MUKUND BAKSHI, A.R. ( )/ ORDER DATE OF HEARING : 09 -02-201 8 DATE OF PRONOUNCEMENT : 15-02-2018 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. WITH THIS APPEAL, THE REVENUE HAS CHALLENGED THE CO RRECTNESS OF THE ORDER OF THE LD. CIT(A)-II, BARODA DATED 20.03.2014 PERTAINI NG TO A.Y. 2002-03. ITA NO. 1991 -AHD-2014 . A.Y. 2002-0 3 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE REVEN UE IS THAT THE LD. CIT(A) ERRED IN ANNULLING THE RE-ASSESSMENT ORDER PASSED B Y THE A.O. AFTER HOLDING THAT THE NOTICE U/S. 148 OF THE ACT ISSUED ON 15.12.2011 WAS TIME BARRED. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT AN AS SESSMENT U/S. 143(3) OF THE ACT WAS FRAMED ON 30.03.2005. THEREAFTER, ASSESSMENT WA S REOPENED BY SERVING NOTICE U/S.148 OF THE ACT ON 23.12.2011. SEARCH AND SEIZURE PROCEEDINGS U/S. 132 WERE CARRIED OUT AT THE RESIDENTIAL PREMISES OF THE KARTA OF THE ASSESSEE HUF ON 02.07.2002. ON THE BASIS OF CERTAIN DOCUMENT S/LOOSE PAPERS RELATING TO THE SALE OF LAND AT GORWA WAS FOUND. THE A.O. WA S OF THE OPINION THAT SINCE THE SALE CONSIDERATION IS TO BE TAXED AS UNDISCLOSE D INCOME OF THE RESPECTIVE HUFS IN THE BLOCK PERIOD AND NOT IN A.Y. 2002-03, ASSESSMENT U/S. 158BD WAS FINALIZED ACCORDINGLY. 4. THE MATTER TRAVELLED UP TO THE TRIBUNAL VIDE ITS OR DER DATED 11.06.2010 IN IT(SS)A NOS. 114, 115 & 116/AHD/2007 HELD THAT SINC E DUE DATE OF FILING RETURN OF INCOME U/S. 139(1) FOR A.Y. 2002-03 WAS N OT EXPIRED. THEREFORE, IT CANNOT BE SAID THAT THE ASSESSEE HAS NOT DECLARED O R WOULD NOT HAVE DECLARED THE CAPITAL GAIN IN THE REGULAR RETURN OF INCOME AN D DIRECTED THE A.O. TO EXCLUDE THE INCOME OF CAPITAL GAIN FROM THE BLOCK PERIOD AN D THE SAME TO BE TAXED ON SUBSTANTIVE BASIS IN THE REGULAR ASSESSMENT FOR A.Y . 2002-03. 5. PURSUANT TO THE FINDINGS/DIRECTIONS OF THE TRIBUNAL , THE LONG TERM CAPITAL GAIN WAS WORKED OUT AS UNDER:- TOTAL SALE CONSIDERATION RECEIVED. RS.2,61,00, 000/- ONE THIRD SHARE. RS. 87,00,000/- COST OF ACQUISITION RS. 7,02,385/- LESS:- FORFEITED AMOUNT AS PER THE DIRECTION OF ITAT RS. 16,66,667/- COST OF ACQUISITION RS. NIL RS. NIL ITA NO. 1991 -AHD-2014 . A.Y. 2002-0 3 3 CAPITAL GAIN. RS. 87,00,000/- LESS:- DEDUCTION U/S. 54B &54F AS DISCUSSED . RS . NIL/- NET CAPITAL GAIN. RS. 87,00,000/- 6. THE A.O. FURTHER FOUND THAT THE AMOUNT FORFEITED BY THE ASSESSEE WAS NEVER OFFERED FOR TAXATION AND ACCORDINGLY THE A.O. MADE ADDITION OF RS. 9,64,282/- AND COMPLETED THE ASSESSMENT VIDE ORDER DATED 30.01 .2013. 7. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) A ND STRONGLY CONTENDED THAT THE ASSESSMENT ORDER IS BARRED BY LIMITATION AS THE SAME IS NOT COMPLETED UNDER THE PROVISIONS OF SECTION 153(2A) OF THE ACT. THE L D. CIT(A) CALLED FOR A REMAND REPORT FROM THE A.O. WHO STATED THAT THE ASS ESSMENT IS NOT TIME BARRED AS THE SAME IS COMPLETED IN TERMS OF THE LIMITATION S PRESCRIBED U/S. 150(1) OF THE ACT. 8. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, TH E LD. CIT(A) WAS OF THE OPINION THAT THE FINDING THAT THE UNDISCLOSED INCOM E CANNOT BE TAXED IN REGULAR PROCEEDINGS IS NOT NECESSARY SO AS TO BE CONSTRUED AND UNDERSTOOD AS A DIRECTION GIVING JURISDICTION TO ISSUE NOTICE U/S. 148 OF THE ACT. THE LD. CIT(A) WAS CONVINCED THAT THE ASSESSMENT ORDER WAS REQUIRE D TO BE PASSED ON OR BEFORE 31.03.2012 AND SINCE THE ORDER IS MADE ON 3 0.01.2013, THEREFORE IT IS BEYOND THE LIMITATION PRESCRIBED AND ACCORDINGLY CA NCELLED THE ASSESSMENT ORDER AS INVALID. 9. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. THE LD . D.R. STRONGLY SUPPORTED THE ASSESSMENT ORDER STATING THAT THE APPLICABLE SECTIO N WOULD BE 150(1) OF THE ACT AND THEREFORE THE ASSESSMENT IS NOT BARRED BY LIMIT ATION AS IT HAS BEEN FRAMED WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE NOTICE U/S. 148 ITA NO. 1991 -AHD-2014 . A.Y. 2002-0 3 4 IS SERVED. PER CONTRA, THE LD. COUNSEL FOR THE ASS ESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. 10. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ERS OF THE AUTHORITIES BELOW. SECTION 153(3) OF THE ACT AS IT STOOD DURING THE RELEVANT ASSESSMENT YEAR:- (3) THE PROVISIONS OF SUB- SECTIONS (1) AND (2) SHA LL NOT APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS, REASSESSMENTS AND RECOMPUT ATIONS WHICH MAY, SUBJECT TO THE PROVISIONS OF SUB- SECTION (2A),] BE COMPLET ED AT ANY TIME- (I) [***] (II)WHERE THE ASSESSMENT, REASSESSMENT OR RECOMPUTA TION 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 I S MADE ON A PARTNER OF THE FIRM IN CONSEQUENCE OF AN ASSESSMENT MADE ON THE FIRM UN DER SECTION 147. 11. AND SECTION 153(6) READS AS UNDER:- 6) NOTHING CONTAINED IN SUB-SECTIONS (1) AND (2) SH ALL APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS, REASSESSMENTS AND RECOMPUTATION WHICH MAY, SUBJECT TO THE PROVISIONS OF SUB-SECTIONS (3) AND (5), BE COMPLETED (I) WHE RE THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION IS MADE ON THE ASSESSEE OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT TO A NY FINDING OR DIRECTION CONTAINED IN AN ORDER UNDER SECTION 250, SECTION 254, SECTION 26 0, SECTION 262, SECTION 263, OR SECTION 2 64 OR IN AN ORDER OF ANY COURT IN A PROCEEDING OTHE RWISE THAN BY WAY OF APPEAL OR REFERENCE UNDER THIS ACT, ON OR BEFORE THE EXPIR Y 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 BEFORE THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH I N 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. THERE FORE, THE LIMITATION FOR ITA NO. 1991 -AHD-2014 . A.Y. 2002-0 3 5 PASSING AN ORDER GIVING EFFECT TO THE ORDER OF THE HONBLE 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 P ROVISIONS 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-SECT IONS (1) , (1A), (1B) AND (2), IN RELATION TO THE ASSESSMENT YEAR COMMENCING ON TH E 1ST DAY OF APRIL, 1971, AND ANY SUBSEQUENT ASSESSMENT YEAR, AN ORDER OF FRESH A SSESSMENT IN PURSUANCE OF AN ORDER UNDER SECTION 250 OR SECTION 254 OR SECTIO N 263 OR SECTION 264, SETTING ASIDE OR CANCELLING AN ASSESSMENT, MAY BE MADE AT A NY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHIC H THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONE R OR COMMISSIONER OR, AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE CHIEF COMMISSIONER OR COMMISSIONER: PROVIDED 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 C OMMISSIONER OR COMMISSIONER, ON OR AFTER THE 1ST DAY OF APRIL, 1999 BUT BEFORE T HE 1ST DAY OF APRIL, 2000, SUCH AN ORDER OF FRESH ASSESSMENT MAY BE MADE AT ANY TIM E UP TO THE 31ST DAY OF MARCH, 2002 : PROVIDED FURTHER THAT WHERE THE ORDER UNDER SECTION 254 IS R ECEIVED 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, 2005, THE PROVISIONS OF THIS SUB-SECTION SHALL HAVE EFFECT AS IF FOR THE WORDS ONE YEAR, THE WORDS NINE MONTHS HAD BEEN SUBSTITUTED : PROVIDED ALSO THAT WHERE THE ORDER UNDER SECTION 254 IS REC EIVED 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, ITA NO. 1991 -AHD-2014 . A.Y. 2002-0 3 6 2006, AND DURING THE COURSE OF THE PROCEEDINGS FOR THE FRESH ASSESSMENT OF TOTAL INCOME, A REFERENCE UNDER SUB-SECTION (1) OF SECTIO N 92CA (I) WAS MADE BEFORE THE 1ST DAY OF JUNE, 2007 BUT AN OR DER UNDER SUB-SECTION (3) OF SECTION 92CA HAS NOT BEEN MADE BEFORE SUCH D ATE; OR (II) IS MADE ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE PROVISIONS OF THIS SUB-SECTION SHALL, NOTWITHST ANDING 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 REC EIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIP AL COMMISSIONER OR COMMISSIONER OR, AS THE CASE MAY BE, THE ORDER UNDE R SECTION 263 OR SECTION 264 IS PASSED BY THE PRINCIPAL COMMISSIONER OR COMMISSI ONER ON OR AFTER THE 1 ST DAY OF APRIL, 2010, AND DURING THE COURSE OF THE PROCEE DING 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, NOTWITHSTANDI NG ANYTHING CONTAINED IN THE SECOND PROVISO, HAVE EFFECT AS IF FOR THE WORDS ON E YEAR, THE WORDS TWO YEARS HAD BEEN SUBSTITUTED. 13. WE DRAW SUPPORT FROM THE JUDGMENT OF HONBLE HIGH C OURT 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 A S UNDER:- 22. HAVING PERUSED THE IMPUGNED ORDER OF THE ITAT C AREFULLY AND THE OPERATIVE PORTIONS QUA WHICH THE ASSESSMENT ORDER WAS SET ASI DE AND THE MATTER REMANDED TO THE AO, THE COURT IS UNABLE TO AGREE WITH THE CO NTENTION OF LEARNED ASG THAT THE AFOREMENTIONED ORDER OF THE ITAT DID NOT CONSTI TUTE A COMPLETE SETTING ASIDE OF THE ASSESSMENT WITH DIRECTIONS TO THE AO TO PASS A FRESH ORDER. THE COURT DOES NOT AGREE WITH THE SUBMISSION OF THE LEARNED ASG TH AT THE AO WAS 'CHAINED' BY THE ITAT'S DIRECTIONS AND COULD NOT HAVE PASSED A F RESH ASSESSMENT ORDER DE NOVO PURSUANT TO SUCH REMAND. 23. THE COURT IS ALSO UNABLE TO AGREE WITH THE CONT ENTION THAT UNLESS THE ENTIRE ASSESSMENT ORDER IS WHOLLY SET ASIDE, THE TIME LIMI T FOR PASSING THE FRESH ORDER ITA NO. 1991 -AHD-2014 . A.Y. 2002-0 3 7 UNDER SECTION 153 (2A) WOULD NOT BE ATTRACTED. THERE IS NO WARRANT F OR SUCH AN INTERPRETATION. THE OBJECT BEHIND INTRODUCTION OF S UB-SECTION (2A) WAS TO PRESCRIBE A TIME LIMIT FOR COMPLETING THE ASSESSMEN T PROCEEDINGS UPON THE ORIGINAL ASSESSMENT BEING SET ASIDE OR BEING CANCEL LED 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, '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 PASSED THEREUNDER TO BE ISSUED WITHIN ANY PAR TICULAR TIME LIMIT. FURTHER THERE IS A DISTINCTION BETWEEN AN 'ASSESSMENT' THAT IS SET ASIDE AND AN 'ASSESSMENT ORDER' BEING SET ASIDE. WHEN THE ASSESS MENT ON AN ISSUE IS SET ASIDE AND THE MATTER REMANDED, WITH A DIRECTION 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 T HE 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 F RESH 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 A SSESSMENT IN RESPECT OF FIVE WAS SET ASIDE AND THE ISSUES REMANDED FOR A FRESH DETER MINATION. WHETHER THE REMAND WAS TO THE TPO OR THE DRP WOULD NOT MAKE A D IFFERENCE AS LONG AS WHAT RESULTS FROM THE REMAND IS A FRESH ASSESSMENT OF TH E ISSUE. CLEARLY, THEREFORE, THE TIME LIMIT FOR COMPLETING THAT EXERCISE WAS GOVERNE D 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 HONBLE 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 PRESCRIBE D THEREIN WOULD OPERATE. IN ITA NO. 1991 -AHD-2014 . A.Y. 2002-0 3 8 THOSE CASES WHERE THERE IS NO NEED FOR A FRESH ASSE SSMENT AND ARE NOT COVERED UNDER SECTION (2A) OF SECTION 153 OF THE ACT, BUT ARE COVERED UNDER CLAUSES (I), (II ) AND (III) OF SECTION 153 , THE LIMITATION PRESCRIBED UNDER SUB-SECTION (2A) OF SECTION 153 WOULD NOT APPLY AND THE EXPRESSION 'ASSESSMENT, REA SSESSMENT AND RE- COMPUTATION BE COMPLETED AT ANY TIME' MAY ENABLE TH E REVENUE TO CONTINUE THE PROCEEDINGS OF ASSESSMENT EVEN BEYOND THE PERIOD PR ESCRIBED 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 O UT 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 BAC K TO THE FACTS OF THE CASE. THE TRIBUNAL ON AN APPEAL FILED BY THE ASSESS EE, UPHELD THE ASSESSEE'S CONTENTION THAT THE COMMISSION WAS DISAL LOWED IN CASE OF TWO AGENCIES, PLACING RELIANCE ON STATEMENTS RECORDED B EHIND THE BACK OF THE ASSESSEE WITHOUT AFFORDING THE CROSS-EXAMINATION OF SUCH WITNESSES. IT WAS ON THIS COUNT THAT THE TRIBUNAL REMITTED THE MA TTER 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 COMM ISSION BY THE ASSESSEE COMPANY TO THESE TWO AGENCIES. WHILE DOING SO, (BE TRIBUNAL ALSO GRANTED LIBERTY TO THE ASSESSING OFFICER TO PR OBE INTO THE MATTER 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 WOR DS OF 'SETTING ASIDE THE ASSESSMENT', NEVERTHELESS, WHEN I T REMITTED THE MATTER BACK TO THE ASSESSING OFFICER FOR SUMMONING TWO WIT NESSES AGAIN FOR CROSS-EXAMINATION BY THE ASSESSEE AND PERMITTED FUR THER PROBE TO THE ASSESSING OFFICER, NECESSARILY IT MUST BE UNDERSTOO D TO HAVE SET ASIDE THE ASSESSMENT UNDER CHALLENGE. THE TRIBUNAL, OTHERWISE IN LAW, COULD NOT HAVE REMITTED THE PROCEEDINGS TO THE ASSESSING OFFI CER FOR FRESH CONSIDERATION AFTER SUMMONING TWO WITNESSES AND CAR RYING OUT SUCH PROBE AS MAY BE NECESSARY. WE MAY RECORD THAT SUCH COMMISSIONS PAID TO THE TWO AGENCIES WAS THE SOLE DISPUTE BETWEEN THE A SSESSEE AND THE DEPARTMENT. IN THE ORIGINAL ASSESSMENT, THE ASSESSI NG OFFICER DISCUSSED ITA NO. 1991 -AHD-2014 . A.Y. 2002-0 3 9 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 B Y THE TRIBUNAL UNDER SECTION 254 OF THE ACT CANCELLING THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER. THE PERIOD OF LIMITATION PRESCRI BED IN SECTION 153(2A) , THEREFORE, WOULD APPLY. WHILE SUCH AN ORDER WAS SER VED ON THE COMMISSIONER ON 3.8.1994, WITHIN A PERIOD OF TWO YE ARS 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, I N OUR VIEW, SUCH PROCEEDINGS HAVE BECOME TIME-BARRED. THE ASSESSMENT PLACED BEFORE THE ASSESSING OFFICER BY THE TRIBUNAL'S ORDER, THEREFOR E, MUST BE TREATED AS HAVING ABATED. IN THAT VIEW OF THE MATTER, THE DECL ARATION PRAYED FOR BY THE PETITIONER MUST BE GRANTED.' 32. IN THE CONSIDERED VIEW OF THE COURT, THE AFORES AID 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 [1988] 174 ITR 117 (MP), THE HIGH COURT OF PUNJAB AND HARY ANA IN BHARTI ENGINEERING CORPORATION V. UNION OF INDIA [2008] 298 ITR 400 ( P&H) AND DEEP CHAND JAIN V. ITO [1984] 145 ITR 676 (P&H), AND THE KARNATAKA HIGH C OURT IN CIT V. PAUL NOEL RODRIGUES [2015] 231 TAXMAN 811 (KAR), ALL HOLD LIKEWISE. TH E 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 DETE RMINATION. 33. THE ANALYSIS OF THE TERMS 'FINDING' AND 'DIRECT IONS' 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 THAT CASE WAS 1956-57. THE SAID DECISION IS, THEREF ORE, NOT OF HELP TO THE REVENUE. ITA NO. 1991 -AHD-2014 . A.Y. 2002-0 3 10 15. IN THE LIGHT OF THE AFOREMENTIONED JUDICIAL DECISIO NS, WE DO NOT FIND ANY ERROR OR INFIRMITY IN THE FINDINGS OF THE LD. CIT(A). APP EAL FILED BY THE REVENUE IS ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 15- 02- 20 18 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY A CCOUNTANT MEMBER AHMEDABAD: DATED 15 /02/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD