ITO, New Delhi V. M/s Neetee Clothing (P) Ltd., New Delhi

ITA 267/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97577 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 02-09-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 15-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA SENIOR
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Reopening of assessment; Period of limitation; Reassessment proceedings
• Section: 143(3); 80HHC; 80IB; 147; 148; 6; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI A.T. VARKEY, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO.267/DEL./2013 (ASSESSMENT YEAR : 2002-03) ITO, WARD 13 (2), VS. M/S. NEETEE CLOTHING (P) LT D., NEW DELHI. 6/28, SHANTI NIKETAN, NEW DELHI 110 021. (PAN : AAACN4061F) (APPELLANT) (RESPONDENT) ASSESSEE BY : DR. RAKESH GUPTA, ADVOCATE AND SHRI SOMIL AGGARWAL, CA REVENUE BY : SHRI P. DAM KANUNJNA, SENIOR DR DATE OF HEARING : 02.09.2015 DATE OF PRONOUNCEMENT : 21.10.2015 O R D E R PER A.T. VARKEY, JUDICIAL MEMBER : THIS APPEAL, AT THE INSTANCE OF THE REVENUE, IS DIR ECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-X VI, NEW DELHI DATED 30.10.2012 FOR THE ASSESSMENT YEAR 2002-03. 2. THE EFFECTIVE GROUNDS OF APPEAL TAKEN BY THE REV ENUE READ AS UNDER:- 1. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN DELETING DISALLOWANCE U/S 80-IA/80-IB OF THE ACT AMOUNTING TO RS.44,95,392/- U/S 148/150(1) OF THE ACT. 2. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT (A) HAS ERRED IN HOLDING THAT NO NOTICE CAN BE ISSUED U/S 148 ITA NO267/DEL./2013 2 TO THE ASSESSEE RELEVANT TO A.Y. 2002-03 EVEN THOUG H THE SAME WAS ISSUED TO CARRY OUT THE ORDER OF THE HONBLE DELHI HIGH COURT IN THE CASE OF THE ASSESSEE RELEVANT FOR A.Y. 2003-04. 3. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT (A) HAS ERRED IN HOLDING THAT THE PROVISION S OF SECTION 150 (1) OF THE I.T. ACT WERE NOT APPLICABLE IN THIS CAS E. 3. THE ABOVE GROUNDS ARE INTER-CONNECTED, THEREFORE , THE SAME ARE DISPOSED OF TOGETHER AS UNDER. 4. BRIEF FACTS OF THE CASE ARE THAT IN THE COMPUTAT ION OF TAXABLE INCOME ATTACHED WITH THE RETURN OF INCOME FOR THE YEAR UND ER CONSIDERATION I.E. AY 2002-03, GROSS TOTAL INCOME HAD BEEN COMPUTED AT RS .1,47,16,979/-. OUT OF THIS TOTAL INCOME, THE ASSESSEE HAS CLAIMED TWO DEDUCTIONS UNDER CHAPTER VIA AS UNDER:- U/S 80HHC RS.1,02,21,587/- U/S 80-IA/B @ 30% RS. 44,95,392/- THE NOTICE U/S 148 READ WITH SECTION 150 OF THE INC OME-TAX ACT, 1961 (HEREINAFTER THE ACT) DATED 15.03.2011 WAS ISSUED TO THE ASSESSEE. IN REPLY VIDE LETTER DATED 24.03.2011, THE ASSESSEE HA D SUBMITTED THAT NO APPEAL HAD BEEN PREFERRED BEFORE ANY AUTHORITY FOR THE YEAR UNDER CONSIDERATION I.E. AY 2002-03, THEREFORE, NO NOTICE COULD BE ISSUED U/S 148 BEYOND THE TIME LIMIT MENTIONED IN SECTION 149 AND SUBMITTED THAT AS PER SECTION 149(1) (B) NOTICE CAN BE ISSUED ONLY WITHIN SIX YEARS FROM THE END OF THE ASSESSMENT YEAR, THEREFORE, LAST DATE FOR TH E ISSUE OF NOTICE WAS 31- ITA NO267/DEL./2013 3 03-2009 WHEREAS NOTICE WAS ISSUED ON 15.03.2011. I T WAS SUBMITTED BY THE ASSESSEE THAT SINCE THE NOTICE ISSUED WAS NOT L EGALLY VALID, SINCE BEING TIME BARRED, THE PROCEEDINGS FOR AY 2002-03 MAY BE DROPPED. THE AO NOTICED THAT BOTH THE DEDUCTIONS HAD BEEN CLAIMED O N THE TOTAL AMOUNT OF GROSS TOTAL INCOME, WHEREAS, ACCORDING TO HIM, AS P ER THE PROVISIONS OF SECTION 80-IA(9), DEDUCTION U/S 80HHC WAS TO BE COM PUTED AFTER DEDUCTING FROM THE GROSS TOTAL INCOME, THE AMOUNT A LREADY ALLOWED AS DEDUCTION U/S 80-IA/80IB. THE AO OBSERVED THAT THOU GH NO SCRUTINY ASSESSMENT U/S 143(3) OR ANY PROCEEDING WAS INITIAT ED U/S 147 WAS MADE IN THE ASSESSMENT YEAR 2002-03 OF THE ASSESSEE, THE REFORE, THE ENTIRE AMOUNT OF DEDUCTIONS CLAIMED BY THE ASSESSEE WERE I NCORRECTLY ALLOWED U/S 143(1) OF THE ACT. HOWEVER, HE OBSERVED THAT IN THE ASSESSMENT FOR AY 2003-04, THE AO ACTING ON THE PROVISIONS OF SECTION 80-IA(9), COMPUTED THE AMOUNT OF DEDUCTION U/S 80HHC AFTER DEDUCTING F ROM THE GROSS TOTAL INCOME, THE AMOUNT OF DEDUCTION ALLOWED U/S 80-IA/I B OF THE ACT AND THE ASSESSEE HAD CONTESTED THIS ISSUE UP TO THE HONBLE HIGH COURT STAGE AND THE HON'BLE DELHI HIGH COURT VIDE ITS ORDER DATED 2 9.11.2010 HAD CLEARLY HELD IN PARAS 42 & 43 OF ITS ORDER THAT THE DEDUCTI ON UNDER ANY OTHER SECTION OF CHAPTER VI-A SHALL BE COMPUTED ONLY AFTE R DEDUCTING FROM THE GROSS TOTAL INCOME THE DEDUCTION ALREADY ALLOWED U/ S 80-IA/IB OF THE ACT. . THE AO OBSERVED THAT IN THE P&L ACCOUNT FOR THE YEA R UNDER CONSIDERATION, IT HAD BEEN NOTICED THAT THE GROSS T OTAL INCOME OF ITA NO267/DEL./2013 4 RS.1,47,16,979/- HAD BEEN REACHED AFTER INCLUDING R ECEIPTS ON ACCOUNT OF DUTY DRAW BACK (DDB) OF AS MUCH AS RS.3,21,28,469/- . HE OBSERVED THAT AS PER THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. STERLING FOODS 237 ITR 579 AND SEVERAL OTHER CASES, ANY RECEIPT/INCOME ON ACCOUNT OF DDB OR OTHER EXPORT INCENTIVES IS NOT TO BE TREATED AS INCOME DERIVED FROM THE BUSINESS OF INDUSTRIAL UNDERTAKING AND THUS, NOT ELIGIBLE FOR DEDUCTION U/S 80IA/IB. HE FURTHER OBSERVED THA T IN A NUMBER OF CASES, HON'BLE SUPREME COURT HAD HELD THAT INCOME ON ACCOU NT OF DDB AND OTHER EXPORT INCENTIVES IS INCOME RESULTING FROM SOME SCH EMES GIVEN BY THE GOVERNMENT, AND THESE CANNOT BE CONSIDERED AS DERIV ED FROM THE ELIGIBLE BUSINESS OF THE INDUSTRIAL UNDERTAKING, THUS, ANY R ECEIPT ON ACCOUNT OF DUTY DRAW BACK WAS LIABLE TO BE EXCLUDED FOR THE PURPOSE S OF COMPUTATION OF DEDUCTION/S 80-I. THE AO NOTICED THAT THE ASSESSEE FAILED TO EXCLUDE THE RECEIPTS/INCOME ON ACCOUNT OF DUTY DRAW BACK WHILE COMPUTING DEDUCTION U/S 80-IB IN THIS CASE. HE OBSERVED THAT IF THIS AM OUNT OF RS.3,21,28,469/- WAS EXCLUDED, THE RESULTANT FIGURE WOULD BE A HUGE LOSS OF OVER RS.1,74,11,490/-. THUS, THERE WOULD BE A LOSS OF OV ER RS.1.74 CRORES FROM THE INDUSTRIAL UNDERTAKING RENDERING THE ASSESSEE I NELIGIBLE FOR ANY DEDUCTION U/S 80-IA/IB OF THE ACT. THE ASSESSEE VID E LETTER DATED 07.11.2011 POINTED OUT TO THE AO THAT IN THE HON'BL E HIGH COURTS ORDER, THERE WAS NO SUCH DIRECTION THAT DEDUCTION U/S 80IA NEEDS TO BE RECOMPUTED AND THE ISSUE OF DEDUCTION U/S 80IA AFTE R DUTY BACK OR BEFORE ITA NO267/DEL./2013 5 DUTY DRAWBACK WAS NOT AT ALL RAISED BY THE DEPARTME NT AND NOT EVEN DISCUSSED IN THE HON'BLE HIGH COURT ORDER. THE ASS ESSEE PLEADED BEFORE THE AO THAT IN THE ABSENCE OF ANY SUCH CLEAR DIRECT ION, DEDUCTION U/S 80 IA WAS NOT TO BE RECOMPUTED. BUT THE AO DID NOT ACCEP T THE ASSESSEES REPLY AND FOLLOWING THE DECISIONS OF THE HON'BLE SUPREME COURT, THE AO OBSERVED THAT THIS ASPECT WAS ALSO COVERED BY THE P ROVISIONS OF SECTION 150(1) OF THE ACT. THE AO HELD THAT NO DEDUCTION A T ALL WAS ALLOWABLE TO THE ASSESSEE U/S 80-IB WHEREAS, THE AMOUNT OF RS.44 ,95,392/- HAD BEEN ALLOWED TO THE ASSESSEE U/S 143(1) BECAUSE THE SAI D AMOUNT WAS CLAIMED BY THE ASSESSEE IN THE RETURN OF INCOME. 5. AGGRIEVED BY THE SAID ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY AND THE LD. CI T (A) DELETED THE ADDITION MADE BY THE AO AS UNDER :- 6.1 I HAVE CONSIDERED THE FACTS OF THE CASE, THE FINDINGS OF THE AO AND THE SUBMISSIONS MADE BY THE APPELLANT. THERE IS NO DISPUTE IN THE INSTANT APPEAL THAT NO ASSESSMENT U/S 143 (3) O R U/S 147 WAS EVER MADE IN THE CASE OF THE APPELLANT FOR THE A.Y. 2002 -03 AND ONLY PROCESSING U/S 143 (1) WAS COMPLETED BEFORE THE ISS UE OF NOTICE U/S 148. THEREFORE, NO APPELLATE ORDER WAS ALSO EVER PA SSED IN THE CASE OF THE APPELLANT FOR A.Y. 2002-03. THERE IS ALSO NO DISPUTE IN THE INSTANT CASE THAT NOTICE U/S 148 ISSUED ON 15.03.20 11 IS BEYOND THE TIME LIMIT OF SIX YEARS FROM THE END OF THE ASSESSM ENT YEAR AS PROVIDED IN SEE 149. THEREFORE, THE NOTICE ISSUED U /S 148 IS BARRED BY LIMITATION PROVIDED U/S 149. THE AO ISSUED THE NOTI CE U/S 148 TAKING THE SHELTER OF SEE 150 (1) OF THE I.T. ACT. 6.2 THE AO INITIATED THE PROCEEDING U/S 147 ON THE GROUND THAT HON'BLE DELHI HIGH COURT HAS GIVEN THE FINDING DATE D 29111/2010 IN THE CASE OF THE ASSESSEE FOR A. Y. 2003-04 THAT THE DEDUCTION UNDER ANY OTHER SECTION OF CHAPTER VIA SHALL BE COMPUTED ONLY AFTER DEDUCTING FROM THE GROSS TOTAL INCOME, THE DEDUCTIO N ALREADY ITA NO267/DEL./2013 6 ALLOWED U/S 80IA/IB OF THE ACT. SINCE NO ASSESSMEN T WAS MADE IN THE ASSESSMENT YEAR 2002-03, THEREFORE, THE ENTIRE AMOUNT OF DEDUCTION CLAIMED BY THE ASSESSEE WERE ALLOWED U/S 143 (1) OF THE IT ACT. IN VIEW OF THE FINDINGS FOR A.Y. 2003-04 BY TH E HON'BLE HIGH COURT AND AS PER THE PROVISIONS U/S 150 (1) OF THE IT ACT, THE CASE FOR THE A.Y. 2002-03 HAS BEEN REOPENED BY THE AO. THERE FORE, THERE IS ALSO NO DISPUTE THAT THE PROCEEDING U/S 147 WERE IN ITIATED FOR THE A.Y. 2002-03 ON THE BASES OF ORDER OF HON'BLE HIGH COURT FOR AY. 2003-04. IN OTHER WORDS, THERE IS NO ORDER OF HIGH COURT ORDER FOR A.Y. 2002-03. 6.3 BEFORE CONSIDERING THE ISSUE AS TO WHETHER AO IS JUSTIFIED IN TAKING THE SHELTER OF SEC 150, IT IS PERTINENT TO A NALYSE THE SECTION 150. 'PROVISION FOR CASES WHERE ASSESSMENT IS IN PURSUAN CE OF AN ORDER ON APPEAL, ETC. 150. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECT ION 149, THE NOTICE UNDER SECTION 148 MAY BE ISSUED AT ANY T IME FOR THE PURPOSE OF MAKING AN ASSESSMENT OR REASSESSMENT OR RECOMPILATION IN CONSEQUENCE OF OR TO GIVE EFFECT T O ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED B Y ANY AUTHORITY IN ANY PROCEEDING UNDER THIS ACT BY WAY O F APPEAL, REFERENCE OR REVISION OR BY A COURT IN ANY PROCEEDI NG UNDER ANY OTHER LAW. (2) THE PROVISIONS OF SUB-SECTION (1) SHALL NOT APP LY IN ANY CASE WHERE ANY SUCH ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS IS REFERRED TO IN THAT SUB-SECTION RELATES TO AN ASSESSMENT YEAR IN RESPECT OF WHICH AN ASSESSMENT, REASSESSMENT OR RECOMPUTATION COULD NOT HAVE BEEN M ADE AT THE TIME THE ORDER WHICH WAS THE SUBJECT-MATTER OF THE APPEAL, REFERENCE OR REVISION, AS THE CASE MAY BE, WAS MADE BY REASON OF ANY OTHER PROVISION LIMITING THE TIME WITHIN WHI CH ANY ACTION FOR ASSESSMENT, REASSESSMENT OR RECOMPUTATION MAY BE TAKEN' THE OBJECT OF ENACTING S. 150 (1) IS TO REALLY GIVE EFFECT TO THE ORDERS MADE BY THE SUPERIOR AUTHORITIES/COURTS UNDER THE A CT OR THE CONSTITUTION AND THUS BRING THE ASSESSMENTS FOR THE YEAR OR YEARS, AS THE CASE MAY BE, IN CONFORMITY WITH THOSE ORDERS WI THOUT ANY TIME- LIMIT. IN A CASE COVERED BY S. 150 (1), THE QUESTIO N OF LIMITATION APPLICABLE TO REOPENING OF ASSESSMENT OR ESCAPED AS SESSMENT DOES NOT APPLY. THE WORDS 'IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED B Y ANY AUTHORITY IN ITA NO267/DEL./2013 7 ANY PROCEEDING UNDER THIS ACT BY WAY OF APPEAL, REF ERENCE OR REVISION' MUST NECESSARILY RELATE TO AN ORDER MADE WITH REFERENCE TO A PARTICULAR ASSESSMENT YEAR OR YEARS AND THAT MUST NECESSARILY BE BY A SUPERIOR AUTHORITY OR COURT COMPETENT TO MAKE THE SAME. THE WORDS 'ANY PROCEEDING UNDER THIS ACT BY WAY OF APPEAL REF ERENCE OR REVISION' CANNOT BE READ AS TO GIVE EFFECT TO AN OR DER MADE IN ANY CASE AND FOR ANY PERIOD AND OF ANY PERSON. THESE WO RDS SHOULD BE SO CONSTRUED AS REFERABLE TO AN ORDER MADE FOR A PARTI CULAR YEAR OR YEARS OF THAT PARTICULAR ASSESSEE AND NOT OF OTHERS. REL IANCE IS PLACED ON CONSOLIDATED COFFEE LTD. VS. ITO, 155 ITR 729 (KAR. ). IN THE INSTANT CASE, THERE IS NO DISPUTE AT THE COST OF REPETITION THAT THE PARTICULAR ORDER OF THE COURT RELATES TO A.Y. 2003-04 AND NOT TO A.Y. 2002-03 WHICH IS THE YEAR OF APPEAL. 6.4 FURTHER, SUB-SECTION (2) OF S. 150 ENACTS THE S ITUATION WHERE THE PROVISIONS OF SUB-S. (1) WILL NOT BE APPLICABLE . ACCORDINGLY, THE PROVISIONS OF SUB-SO (1) SHALL NOT APPLY WHERE THE REASSESSMENT PROCEEDINGS WOULD HAVE BEEN BARRED BY TIME EVEN AT THE TIME WHEN THE ORDER, WHICH WAS THE SUBJECT-MATTER OF APPEAL, REVISION, ETC., WAS PASSED. IN OTHER WORDS, SUB-S (2) PROVIDES A RIDER AS IF IN THE NATURE OF A PROVISO TO SUB-S. (1) PROVIDING THAT THE PROVI SIONS OF SUB-S (1) SHALL NOT APPLY WHERE BY VIRTUE OF ANY OTHER PROVIS ION LIMITING THE TIME WITHIN WHICH ACTION FOR ASSESSMENT, REASSESSME NT OR RECOMPUTATION MAY BE TAKEN, SUCH ASSESSMENT, REASSE SSMENT OR RECOMPUTATION IS BARRED ON THE DATE OF THE ORDER WH ICH IS THE SUBJECT- MATTER OF THE APPEAL, REFERENCE OR REVISION IN WHIC H THE FINDING OR DIRECTION IS CONTAINED. IT WOULD, THUS, MEAN THAT A N APPELLATE OR REVISIONAL AUTHORITY CANNOT GIVE A DIRECTION FOR AS SESSMENT OR REASSESSMENT WHICH GOES TO THE EXTENT OF CONFERRING JURISDICTION UPON THE ASSESSING OFFICER IF HIS JURISDICTION HAD CEASED DUE TO THE BAR OF LIMITATION. IF THE ISSUING OF A NOTICE FOR A SSESSMENT OR REASSESSMENT FOR A PARTICULAR ASSESSMENT YEAR HAD B ECOME TIME- BARRED AT THE TIME OF THE ORDER, WHICH WAS THE SUBJ ECT-MATTER OF THE APPEAL, THE PROVISIONS OF S. 150 (1) CANNOT BE INVO KED FOR MAKING AN ASSESSMENT OR REASSESSMENT. IT FOLLOWS, THEREFORE, THAT IF THE ORIGINAL ORDER WHICH WAS THE SUBJECT-MATTER OF APPEAL, REFER ENCE OR REVISION COULD NOT HAVE BEEN PASSED, WHEN IT WAS PURPORTED T O HAVE BEEN PASSED BY REASON OF ITS BEING BARRED BY LIMITATION, THE SAME COULD NOT BE REVIVED U/S 150 (1). RELIANCE IS PLACED ON G AURI SHANKAR CHOUDHARY V. ADDL. CIT (1998) 234 ITR 865 (PAT) & C IT V, VAIKUNDOM RUBBER CO. LTD., (2001) 249 ITR 19 (KER.) 6.5 A THREE-JUDGE BENCH OF THE HON'BLE APEX COURT IN K.M. SHARMA VS. ITO, 254 ITR 772 (SC) POINTS OUT THAT SU B-SO (2) AIMS AT PUTTING AN EMBARGO ON REOPENING ASSESSMENTS, WHICH HAVE ATTAINED FINALITY ON THE EXPIRY OF THE PRESCRIBED PERIOD OF LIMITATION. SUB- ITA NO267/DEL./2013 8 SECTION (2), IN PUTTING SUCH EMBARGO, REFERS TO THE WHOLE OF SUB-S (1), MEANING THEREBY TO INSULATE ALL ASSESSMENTS, WHICH HAVE BECOME FINAL AND MAY HAVE BEEN FOUND LIABLE TO REASSESSMEN TS OR RECOMPUTATION EITHER ON THE BASIS OF ORDERS IN PROC EEDINGS UNDER THE ACT OR ORDERS OF COURTS PASSED UNDER ANY OTHER LAW. ON A COMBINED READING OF SUB-SO (1) AS AMENDED W.E.F. APRIL 1, 19 89, AND SUB-SO (2) OF S. 150 AS IT STANDS, A FAIR AND JUST INTERPRETAT ION WOULD BE THAT THE AUTHORITY UNDER THE ACT HAS BEEN EMPOWERED ONLY TO RE-OPEN ASSESSMENTS, WHICH HAVE NOT ALREADY BEEN CLOSED AND ATTAINED FINALITY DUE TO THE OPERATION OF THE BAR OF LIMITAT ION U/S 149. 6.6 TO SUM UP SECTION 150 IS IN THE NATURE OF A PR OVISO TO S. 149. A READING OF SUB-S. (1) OF S. 150 SHOWS THAT WHERE THE REASSESSMENT PROCEEDINGS ARE INITIATED IN CONSEQUENCE OF OR TO G IVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED B Y ANY AUTHORITY IN ANY PROCEEDING UNDER THE ACT BY WAY OF APPEAL, REFE RENCE OR REVISION, THE TIME-LIMITS PRESCRIBED IN S. 149 SHAL L NOT APPLY, AND THAT NOTICE U/S 148 CAN BE ISSUED AT ANY TIME. SUB-SECTI ON (2), HOWEVER, IS AGAIN IN THE NATURE OF A PROVISO TO SUB-S. (1). IT SAYS THAT THE PROVISIONS OF SUB-S. (1) SHALL NOT APPLY WHERE, BY VIRTUE OF ANY OTHER PROVISION LIMITING THE TIME WITHIN WHICH ACTION FOR ASSESSMENT, REASSESSMENT OR RECOMPUTATION MAY BE TAKEN, SUCH AS SESSMENT, REASSESSMENT, OR RECOMPUTATION IS BARRED ON THE DAT E OF THE ORDER WHICH IS THE SUBJECT-MATTER OF THE APPEAL, REFERENC E OR REVISION IN WHICH THE FINDING OR DIRECTION IS CONTAINED. RELIAN CE IS PLACED ON CIT V. G. VISHWANATHAM, (1998) 172 ITR 401 (AP). IN VIEW OF THE ABOVE AS THE ORDER OF HON'BLE HIGH COURT IS NOT IN RESPECT OF AY 2002-03, AS NO PROCEEDING IS PENDING FOR THE SAID A SSESSMENT YEAR AND AS THE PROCEEDING INITIATED U/S 147 FOR THE A.Y . 2002-03 ARE BARRED BY LIMITATION PROVIDED U/S 149, THEREFORE, T HE AO IS NOT EMPOWERED TO REOPEN THE SAME U/S 150(1), CONSIDERIN G THE RESTRICTIONS PLACED BY SECTION 150 (2) OF THE IT AC T. THE ACTION OF THE AO IS BEYOND THE JURISDICTION ENSHRINED UNDER T HE IT ACT. 6. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFOR E US. 7. LD DR, RELYING ON THE ORDER OF THE AO, SUBMITTED THAT THE CIT (A) WAS NOT JUSTIFIED IN DELETING THE DISALLOWANCE U/S 80IA/80IB AMOUNTING TO RS.44,95,392/- U/S 148/150 (1) OF THE ACT. HE SUBM ITTED THAT THE CIT (A) HAS ALSO ERRED IN HOLDING THAT NO NOTICE CAN BE ISS UED U/S 148 TO THE ITA NO267/DEL./2013 9 ASSESSEE FOR AY 2002-03 EVEN THOUGH THE SAME WAS IS SUED PURSUANT TO THE ORDER OF THE HONBLE DELHI HIGH COURT IN THE CASE O F THE ASSESSEE FOR AY 2003-04. SO, THEREFORE, HE WANTS US TO REVERSE THE ORDER OF THE CIT (A) AND UPHOLD THE ORDER OF THE AO. 8. ON THE OTHER HAND, LD. AR REITERATED, MORE OR LE SS, HIS SUBMISSIONS MADE BEFORE THE AO AND CIT (A). THE SUBSTANCE OF T HE SUBMISSIONS OF THE LD. AR IS AS UNDER :- (I) THE NOTICE U/S 148 READ WITH SECTION 150 WAS IS SUED TO THE ASSESSEE. AS NO APPEAL HAD BEEN PASSED BY ANY AUTH ORITY IN THE YEAR UNDER CONSIDERATION (AY 2002-03), THEREFOR E, NO NOTICE COULD BE ISSUED U/S 148 BEYOND THE TIME LIMI T MENTIONED IN SECTION 149. AS PER SECTION 149(1) (B) , NOTICE CAN BE ISSUED ONLY WITHIN SIX YEARS FROM THE END OF THE ASSESSMENT YEAR, THEREFORE, LAST DATE FOR THE ISSUE OF NOTICE WAS 31-03-2009 WHEREAS NOTICE WAS ISSUED ON 15.03.2 011 AND, THEREFORE, THE NOTICE IS TIME BARRED. (II) FOR THE AY 2003-04 IN THE ASSESSEES CASE, THE HON'BLE DELHI HIGH COURT HELD THAT DEDUCTION U/S 80HHC SHALL BE C OMPUTED ONLY AFTER DEDUCTING FROM THE GROSS TOTAL INCOME TH E DEDUCTION ALREADY ALLOWED U/S 80-IA/IB OF THE ACT. THIS ORDER WAS FOR AY 2003-04 AND THERE WAS NO DIRECTION TO REOPEN THE CASE FOR ANY OTHER YEAR AND DESPITE THAT AO REOPENED THE CAS E FOR AY 02-03 U/S 150(1). EVEN THE DEPARTMENT DID NOT RAIS E THIS ISSUE BEFORE THE TRIBUNAL OR HONBLE HIGH COURT. (III) PURSUANT TO REOPENING OF THE ASSESSMENT FOR AY 2002 -03 U/S 150(1), ASSESSMENT ORDER WAS PASSED AND SURPRISINGL Y ITA NO267/DEL./2013 10 DEDUCTION U/S 80IB WAS RECOMPUTED AS PER THE FINDIN GS OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. STERLI NG FOOD 237 ITR 579. THE AO ERRED IN INTERPRETING SECTION 1 50(1) OF THE ACT SINCE THE ORDER OF THE HON'BLE HIGH COURT W AS FOR AY 2003-04 AND NOT FOR AY 02-03. THE OBJECT OF ENACTIN G SECTION 150(1) IS TO REALLY GIVE EFFECT TO THE ORDERS MADE BY THE SUPERIOR AUTHORITIES/COURTS UNDER THE ACT OR THE CO NSTITUTION AND, THUS, BRING THE ASSESSMENTS FOR THE YEAR OR YE ARS, AS THE CASE MAY BE, IN CONFORMITY WITH THOSE ORDERS WITHOU T ANY TIME LIMIT. HOWEVER, THE WORDS IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER P ASSED BY ANY AUTHORITY IN ANY PROCEEDINGS UNDER THIS ACT BY WAY OF APPEAL, REFERENCE OR REVISION,' USED IN SECTION 150 (1) MUST NECESSARILY RELATE TO AN ORDER WITH REFERENCE TO A PARTICULAR ASSESSMENT YEAR OR YEARS AND THAT MUST NECESSARILY BE BY A SUPERIOR AUTHORITY OR COURT COMPETENT TO MAKE THE S AME. THE WORDS 'ANY PROCEEDINGS UNDER THIS ACT BY WAY OF APP EAL, REFERENCE OR REVISION' CANNOT BE READ AS TO GIVE EF FECT TO AN ORDER MADE IN ANY CASE AND FOR ANY PERIOD AND OF AN Y PERSON. IN THE SCHEME AND CONTEXT, THESE WORDS SHOULD BE SO CONSTRUED AS REFERABLE TO AN ORDER MADE FOR A PARTI CULAR YEAR OR YEARS OF THAT PARTICULAR ASSESSEE AND NOT OF OTHERS . FURTHER, WHILE DEALING WITH THE SECOND PROVISO TO SECTION 34 (3) OF THE 1922 ACT, WHICH IS EQUALLY APPLICABLE IN CONSTRUING SECTION 150(1) OF THE 1961 ACT WHICH IS SOMEWHAT ANALOGOUS AND CORRESPONDS TO THAT PROVISION, THE SUPREME COURT IN THE CASE OF ITO V. MURLIDHAR BHAGWAN DAS [1964 52 ITR 335 & RAJINDER NATH V. CIT [1979] 120 ITR 14 HAS ALSO TAK EN THE SAME VIEW. SAME OPINION WAS ALSO EXPRESSED BY KARNA TKA ITA NO267/DEL./2013 11 HIGH COURT IN THE CASE OF CONSOLIDATED COFFEE LTD - 155 ITR 729 & HIGH COURT OF CALCUTTA IN THE CASE OF PEICO E LECTRONICS 210 ITR 991. SO, THEREFORE, THE LD. AR WANTS US NOT TO INTERFERE WITH THE ORDER OF THE LD. CIT (A) AND THE SAME MAY BE UPHELD. 9. WE HAVE HEARD BOTH THE SIDES ON THE ISSUES AND P ERUSED THE MATERIAL AVAILABLE ON RECORD AND ALSO GONE THROUGH THE ORDER S RELIED UPON. WE FIND THAT THERE IS NO DISPUTE IN THE INSTANT APPEAL THAT NO ASSESSMENT U/S 143 (3) OR U/S 147 WAS EVER MADE IN THE CASE OF THE ASSESSE E FOR THE YEAR UNDER CONSIDERATION (AY 2002-03) AND ONLY PROCESSING U/S 143 (1) WAS COMPLETED BEFORE THE ISSUANCE OF NOTICE U/S 148, TH EREFORE, QUESTION OF ANY APPELLATE ORDER BEING PASSED IN THIS CASE DOES NOT ARISE WE ALSO FIND THAT THERE IS ALSO NO DISPUTE THAT NOTICE U/S 148 ISSUED ON 15.03.2011 WHICH IS CLEARLY BEYOND THE OUTER TIME LIMIT OF SIX YEARS AN D IS, THEREFORE, HIT BY LIMITATION. HOWEVER, WE FIND THAT THE AO INITIATED THE PROCEEDING U/S 147 ON THE BASIS OF THE JUDGMENT OF HON'BLE JURISDICTIO NAL HIGH COURT IN ASSESSEES OWN CASE FOR AY 2003-04 WHEREIN, IT WAS HELD THAT THE DEDUCTION UNDER ANY OTHER SECTION OF CHAPTER VIA SH ALL BE COMPUTED ONLY AFTER DEDUCTING FROM THE GROSS TOTAL INCOME, THE DE DUCTION ALREADY ALLOWED U/S 80IA/IB OF THE ACT. WE FIND THAT ON THE SAID F INDING OF THE HONBLE HIGH COURT, THE AO RELIED UPON THE PROVISIONS U/S 1 50 (1) OF THE ACT TO REOPEN THE CASE FOR THE A.Y. 2002-03. WE TAKE NOTE OF THE FACT THAT THERE IS ITA NO267/DEL./2013 12 ALSO NO DISPUTE ABOUT THE FACT THAT THE PROCEEDING U/S 147 WAS INITIATED FOR THE ASSESSMENT YEAR 2002-03 ON THE BASIS OF ORDER O F HON'BLE HIGH COURT FOR ASSESSMENT YEAR PERTAINS TO 2003-04 AND THERE I S NO ORDER FOR THE RELEVANT A.Y. 2002-03 WHICH IS BEFORE US. AFTER GOI NG THROUGH THE PROVISIONS OF SECTION 150, THE LD CIT(A) HAS RIGHTL Y INTERPRETED THAT THE OBJECT OF ENACTING SECTION 150 (1) IS TO GIVE EFFEC T TO THE ORDERS MADE BY THE SUPERIOR AUTHORITIES/TRIBUNALS UNDER THE ACT OR THE CONSTITUTIONAL COURTS; AND TO BRING THE ASSESSMENTS FOR THE YEAR O R YEARS, AS THE CASE MAY BE, IN CONFORMITY WITH THOSE ORDERS WITHOUT ANY PRE SCRIBED TIME-LIMIT; AND IN A CASE COVERED BY SECTION 150 (1), THE QUESTION OF LIMITATION DOES NOT ARISE. THE LD CIT(A) RIGHTLY OBSERVED THAT THE WORD S 'IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINE D IN AN ORDER PASSED BY ANY AUTHORITY IN ANY PROCEEDING UNDER THIS ACT BY W AY OF APPEAL, REFERENCE OR REVISION' MUST NECESSARILY RELATE TO AN ORDER MADE WITH REFE RENCE TO A PARTICULAR ASSESSMENT YEAR OR YEARS AND THAT MUST N ECESSARILY BE BY A SUPERIOR AUTHORITY OR COURT COMPETENT TO MAKE THE S AME FROM PROCEEDINGS BEFORE IT AS PER LAW. FURTHER, WE CONCUR WITH THE O PINION OF THE LD CIT(A) THAT THE WORDS 'ANY PROCEEDING UNDER THIS ACT BY WAY OF APPEAL REF ERENCE OR REVISION' CANNOT BE READ AS TO GIVE EFFECT TO AN ORDER MADE IN ANY CASE AND FOR ANY PERIOD AND OF ANY PERSON. THESE WORDS S HOULD BE SO CONSTRUED AS REFERABLE TO AN ORDER MADE FOR A PARTICULAR YEAR OR YEARS OF THAT PARTICULAR ASSESSEE AND NOT OF OTHERS. ITA NO267/DEL./2013 13 9.1 FURTHER, WE TAKE NOTE THE LD CIT(A) HAS RIGHTLY OBSERVED THAT SUB- SECTION (2) OF SECTION 150 ENACTS THE SITUATION WHE RE THE PROVISIONS OF SUB- SECTION (1) WILL NOT BE APPLICABLE. ACCORDINGLY, WE FIND THAT THE PROVISIONS OF SUB-SECTION (1) SHALL NOT APPLY WHERE THE REASSE SSMENT PROCEEDINGS WOULD HAVE BEEN BARRED BY TIME EVEN AT THE TIME WHE N THE ORDER, WHICH WAS THE SUBJECT-MATTER OF APPEAL, REVISION, ETC., W AS PASSED. IN OTHER WORDS, SUB-SECTION (2) PROVIDES A RIDER AS IF IN THE NATUR E OF A PROVISO TO SUB- SECTION (1) PROVIDING THAT THE PROVISIONS OF SUB-SE CTION (1) SHALL NOT APPLY WHERE BY VIRTUE OF ANY OTHER PROVISION LIMITING THE TIME WITHIN WHICH ACTION FOR ASSESSMENT, REASSESSMENT OR RECOMPUTATIO N MAY BE TAKEN, SUCH ASSESSMENT, REASSESSMENT OR RECOMPUTATION IS BARRED ON THE DATE OF THE ORDER WHICH IS THE SUBJECT-MATTER OF THE APPEAL, RE FERENCE OR REVISION IN WHICH THE FINDING OR DIRECTION IS CONTAINED. IT WOU LD, THUS, MEAN THAT AN APPELLATE OR REVISIONAL AUTHORITY CANNOT GIVE A DIR ECTION FOR ASSESSMENT OR REASSESSMENT WHICH GOES TO THE EXTENT OF CONFERRING JURISDICTION UPON THE ASSESSING OFFICER IF HIS JURISDICTION HAD CEASED DU E TO THE BAR OF LIMITATION. IF THE ISSUING OF A NOTICE FOR ASSESSMENT OR REASSE SSMENT FOR A PARTICULAR ASSESSMENT YEAR HAD BECOME TIME-BARRED AT THE TIME OF THE ORDER, WHICH WAS THE SUBJECT-MATTER OF THE APPEAL, THE PROVISION S OF SECTION 150 (1) CANNOT BE INVOKED FOR MAKING AN ASSESSMENT OR REASS ESSMENT. IT FOLLOWS, THEREFORE, THAT IF THE ORIGINAL ORDER WHICH WAS THE SUBJECT-MATTER OF APPEAL, REFERENCE OR REVISION COULD NOT HAVE BEEN PASSED, W HEN IT WAS PURPORTED TO ITA NO267/DEL./2013 14 HAVE BEEN PASSED BY REASON OF ITS BEING BARRED BY L IMITATION, THE SAME COULD NOT BE REVIVED U/S 150 (1). 9.2 AS AFORE STATED, THE ORDER OF HONBLE HIGH COU RT WAS PASSED FOR AY 2003-04 AND THE YEAR BEFORE US FOR CONSIDERATION IS AY 2002-03. SINCE THE ORDER OF HON'BLE HIGH COURT IS NOT IN RESPECT OF AY 2002-03; AND IT IS NOT IN DISPUTE THAT NO PROCEEDING IS PENDING FOR THE YE AR UNDER CONSIDERATION; IN THE SAID FACTUAL SCENARIO, THE PROCEEDINGS INITI ATED U/S 147 FOR THE AY 2002-03 ARE IMPERMISSIBLE AND, THEREFORE, THE AO IS NOT EMPOWERED TO REOPEN THE SAME U/S 150(1), CONSIDERING THE RESTRIC TION PLACED BY SECTION 150 (2) OF THE ACT. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT (A) AND THE SAME IS UPHELD. THE GROUNDS TAKEN BY THE REVENUE ARE DISMISSED. 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 21 ST DAY OF OCTOBER, 2015. SD/- SD/- (O.P. KANT) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 21 ST DAY OF OCTOBER, 2015 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XVI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.