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TMI Blog2016 (5) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 220(1) has to be taken into consideration from the date of passing of the fresh assessment order and not the earlier assessment order, which has been set aside. Accordingly, this issue is decided in favour of the assessee. - ITA No. 2260/Mds/2013 - - - Dated:- 6-4-2016 - Shri Chandra Poojari, Accountant Member And Shri G. Pavan Kumar, Judicial Member For the Appellant : Shri R. Sivaraman, Advocate For the Respondent : Shri Debendra N. Kar, CIT ORDER Per Chandra Poojari, Accountant Member This appeal by the assessee is directed against the order of the Commissioner of Income-tax(Appeals) dated 18.11.2013. 2. The assessee has raised the following grounds in this appeal : 1. The order of The Commissioner of Income Tax (Appeals) I , Coimbatore dated 18 . 11.2013 in I . T . A.No . 73/2013-14 for the above mentioned Assessment Year is contrary to law , facts , and in the circumstances of the case . 2 . The CIT (Appeals) erred in sustaining the determination of/quantification of depreciation on six wind turbine generators which resulted in restriction of claim of such depreciation in the computation of taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on thereto . 10. The CIT(Appeals) went wrong in recording the findings in this regard in para 8 of the impugned order without assigning proper reasons and justification. 11. The CIT(Appeals) failed to appreciate that there was no proper opportunity given before passing the impugned order and any order passed in violation of the principles of nature justice is nullity in law. 3. The facts of the case as submitted by the ld. A.R. in paper book at pages 1 to 3 are that M/s NEPC Micon Ltd. is a company carrying on the business of manufacture and sale of wind turbine generators. The name of the company is subsequently changed to M/s NEPC India Ltd. For the assessment year 1994-95, it originally filed the return of income on 30/11/1994 admitting an income of Rs. 62.94 lakhs. This return was processed under section 143(1) of the Act on 30/10/1995 and a refund of Rs. 26,06,645/- was determined. The assessment was taken up for scrutiny subsequently and the regular assessment under section 143(3) of the Act was completed on 27/3/1997 determining the total income at ₹ 26,65,87,990/- demanding ₹ 23,33,93,982/- as further tax payable and a sum of ₹ 3,37,47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 in which income determined was loss of ₹ 776.64 lakhs and a refund of Rs. 5,84,90,692/- was determined by the Assessing Officer. This order of the Assessing Officer dated 27/3/2006 was set aside by the Commissioner of Income-tax, Chennai Ill, Chennai by his order dated 25/3/2008 and against the said order, an appeal to the ITAT was filed on 23/4/2008. 3.2 The order of the Commissioner of Income-tax passed u/s 263 was given effect to by the assessing officer on 31/12/2008 and by his order u/s 143(3) he has determined the total income at Rs. 552.67 lakhs demanding a tax of Rs. 4,62,69,296/-. 3.3 The ITAT has passed an order in the appeal against the order u/s 263 of the CIT in ITA No. 1041/Mds/20008 on 19/6/2009 setting aside the issue of allowing depreciation on internally transferred WTGs to the assessing officer. In obedience to the order of the ITAT, the Assessing Officer passed fresh order under section 143(3) r/w 254 on 29/12/2010 demanding a tax of ₹ 35,24,32,262/- by determining the total income at Rs. 26,43,39,420. The appeal filed before the CIT(Appeals) against the order dated 29/12/2010 was decided by the Commissioner of Income-tax (Appeals) I, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, directed the AO to reduce the profit and corresponding cost thereby which is evident from paragraph 54. The Tribunal vide order dated 30.6.2003 in ITA No.1018/Mds/2002 others for the asst. years 1993-94, 1995-96 etc. has held that inter-divisional transfers cannot be treated as sales and sale figures should have been reduced. Correspondingly the expenses of manufacturing division would also have to be reduced to the cost of 34 numbers of WTG capitalised in the year which is evident from paragraphs 23 24. According to the ld. AR, these findings of the Tribunal have reached finality and there is no further appeal by the Revenue on this issue. 4.1 Further, the Tribunal while deciding the appeal filed by the assessee against the order passed u/s.263 of the Act by the CIT on the same issue for the asst. year 1994- 95 in ITA No. 1041/Mds/2008 dated 19.6.2009 held as follows : 6. After considering the rival contentions and the materials on record, we note that the assessee claimed manufacturing of 209 Wind Turbine Generators (WTGs) out of which 150 WTGs were sold to outsiders and 59 WTGs were transferred to the assessee s own power division. But in the original ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shrimal Vs. Commissioner of Income Tax, Andhra Pradesh reported in 131 ITR 451. We also place reliance on the decision of the Hon ble Jurisdictional High Court in the case of Commissioner of Income Tax Vs. Smt. S. Vijayalakshmi reported in 242 ITR 46; in the case of Commissioner of Income Tax Vs. Ramnath Goenka (DECD.) and other reported in 252 ITR 653. We further note that the Assessing Officer has not made any enquiry with respect to the actual number of Wind Turbine Generators commissioned by the assessee and certified by the State Electricity Board while passing the given effect order. Accordingly, we direct the Assessing Officer to redo the given effect order as per the directions of this Tribunal after considering the above observations. 4.2 While giving effect to this order of the Tribunal, the Revenue authorities have not considered the above findings of the Tribunal and the findings of the lower authorities, both, the AO and the CIT(Appeals) were decided the issue contrary to the above findings of the Tribunal. According to the ld. AR, the total cost of manufacture of WTG to be apportioned between 156 WTGs only and correspondingly sales value of 53 WTGs to be reduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal of the assessee requires to be dismissed. This being the position as admitted by the assessee in a series of submissions, it is not known as to what is the grievance of the assessee. Considering the above, appeal of the assessee may be dismissed as the assessee is not aggrieved. According to the ld. DR, the only dispute raised by the assessee in the present appeal is regarding the number of WTG manufactured by it during the year which is the division to determine the unit cost. This fact is evidence from cl.12 in Sch.12 of printed annual accounts for FY. 1993-94 i.e. 209 WTGs. 5.3 Regarding computation of profit element of 53 WTGs, the ld. DR submitted that according to the assessee, profit element of 59 (53+6) WTGs needs to be excluded from taxable income. Further, the ld. DR submitted that the impugned order of the AO is giving effect to the order of the CIT(A) dated 8.8.2012, which was accepted by both the parties and reached finality and in the said order, the CIT(Appeals) held that the AO is directed to follow the directions as given in para 5.5. and 5.6 of the appellate order . The CIT(A) in para 5.6 of the order dated 27.7.2011 arrived at the profit element ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2013 14. Against that order, the assessee Once again went in appeal before CIT(A), who dismissed the appeal 18.11.2013 Now, the assessee is in appeal before us against the order of the CIT(Appeals) dated 18.11.2013. 6.2 Admittedly, in this case, for the asst. year 1994-95, the assessee came in appeal before the Tribunal on the issue of allowability of depreciation on windmills and other fixed assets. The Tribunal, vide order dated 9.3.2005 in ITA No.1403/Mds/1998 for the asst. year 1994-95 held in para 4 as under: 4. The third issue is with regard to depreciation on wind mills and other fixed assets. This issue was also considered in the earlier years. It was observed that wind mills that are sold to outside parties are no longer the assets of the company. Wind mills that were transferred to other units and which were commissioned, were directed to be considered for allowing of depreciation based on the fact that they were commissioned and so certified by the State Electricity Board and we direct accordingly. Likewise in respect of asset fixed assets also which are owned by the assessee for which information is available, the Assessing Officer shall examine and allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... figures would have to be reduced. Correspondingly the expenditure of the manufacturing division would also have to be reduced to the cost of 34 numbers of WTGs capitalised in the year. The value at which they have to be capitalised is in the same fashion as has been directed to be determined by the Tribunal in its order dt. 13-12-03 in the case of the assessee for the assessment year 1997-98 to which reference is made above. The A.O. will carry out the same exercise in respect of the present assessment year also. The A.O. further would consider the claim of depreciation by keeping in mind the directions of the Tribunal as made in its order in M.P.No.13/Mds/03. (emphasize applied) 6.3 While passing the consequential order to the order of the Tribunal in ITA No.1403/Mds/98 dated 9.3.2005, the AO vide order dated 27.3.2006 recomputed the depreciation by observing in para 3 as follows : 3. Depreciation: 3.1 During the year (A.Y. 94-95), the assessee claimed to have manufactured 209 WTGs. Out of which it was claimed that 150WTGs were sold to outsiders and 50 were transferred to assessee s own power division. The Assessing Officer, in the original assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the order has directed the AO to examine whether the windmills that were transferred to other units were commissioned as certified by the State Electricity Board and to allow depreciation based on the said fact. It is also clear that there is nothing in the above directions of the Tribunal which has the effect of directing the AO to allow deduction of inter divisional sales. In fact, the ITAT in its order under consideration never talked about the issue of inter divisional sales and relief to the assessee under this head. Moreover, the ITAT has also not referred to the orders of subsequent years for allowing the relief to the assessee. It is therefore crystal clear that the AO while giving effect to the directions of the ITAT has erroneously allowed the deduction in respect of inter divisional sales of windmills. Had this deduction in respect of inter divisional sales not been given, the resultant total income would have been a positive figure as against the loss determined in the order dated 27.3.06. It is axiomatic that, while giving effect to the directions of the Tribunal u/s.254, the AO should strictly abide by the findings/directions of the Tribunal and should not deviat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorporated in the subsequent orders. In view of this, the undersigned concludes that once again there is no need of reducing the cost of these 53 not manufactured WTGs from assessee s total income for AY 1994-95. 6.7 Once again, the assessee aggrieved by the above order of the AO, filed the appeal before the CIT(Appeals). Vide order dated 27.7.2011, the CIT(Appeals) by giving the following observation, decided the issue in favour of the assessee: 5.3 I have gone through the submissions made by the appellant regarding other grounds of appeal . I have also gone through the order of the Commissioner of Income tax (Appeals) dated 24 . 4 . 1998 against the original order of the Assessing Officer u/s 143(3) dated 27 .3.1997 . the appellant in this order has not contested the finding of the Assessing Officer that only 156 WTGs could have been manufactured by the appellant . The issue was not adjudicated upon even by the Hon'bie ITAT in the order dated 9.3 . 2005 for the assessment year 1994 - 95 . The appellant relied on nara 26 of the order dated 13 . 12 . 2003 of Hon'ble ITAT in respect of assessment year 1997-98 , the background of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exa m i n e th e w o rk i ng of the co s t of WTGs in the A s sessin g Officer ord e r d a t e d 3 1 . 5 . 2 0 07 gi ving effec t t o t he o rd e r of th e Hon ' ble ITAT dated 2 7.3 . 2006 . Bas e d o n t his, th e pr o fi t e l emen t al s o ne ed s to b e wo rke d out and I a m herewith showing th e work i n g given by th e A R durin g th e c ours e o f appel l at e proceedin gs . Based on the directions of the ITA the profit element could be worked out as follows : Rs. in lakhs Inter divisional sales of 59 WTGs (ass per para 9 of order dt.27.3.1997) 3893.86 Interdivisional Sales of 53 WTGs 3497.88 Interdivisional Sales of 6 WTGs 395.98 Total 3893.86 Cost of WTGs: (as worked out in order dt. 312.05.2007 giving Effect to order of ITAT dt. 27.03.2006) Raw materials as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted that only 156 WTG s were manufactured. Out of 156 WTG s only 6 were transferred to its own power division. Based on directions of ITAT th profit element and depreciation on account of 6 WTGs internally transferred could be worked out . And the AO computed the total cost for manufacturing at ₹ 1,09,46,41,000/- and he apportioned the same among 156 WTGs on each at cost of Rs. 70.169 lakhs. Once again, regarding wrong computation of depreciation, the assessee went in appeal before the CIT(Appeals), who vide order dated 8.8.2012 observed as follows: 5 . I had p e ru se d the s ubm i ss i on s m a d e by th e a pp e l l a nt a nd a l so th e o r d e r of the A ssess i n g Off i c e r. Th e A ssess i n g Offi ce r i n th e or i g i n a l assess m e nt ord e r da t e d 27 . 03 . 1997 v i de Par as 9 to 9 . 10 h e ld that th e asse s see cou l d h ave m a nuf a ctur e d only 1 56 W TG s which i s r e iterated by th e A ssess in g Offi ce r i n h i s o r d e r d a t e d 29.1 2.2 010 . I n thi s co n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e p e r WTG out of 5 3 int e rn a lly tr a n s f e rr e d h as b e e n di sc u ss e d by th e As ses sing Off i ce r i n h i s o r d e r d a t e d 2 7. 3 . 1997 . Th e A ssess i n g Offi c e r i s d ir ec t e d to f ol l ow th e direct i on s as g i ven i n P a ra 5 . 5 a nd 5 . 6 of th e ap pe l l a t e ord e r . Th e se g r o und s o f appea l are allowed. 6.9. The AO vide order dated 18.3.2013, while giving effect to the order of the CIT(Appeals) dated 8.8.2012 apportioned the total cost of manufacturing of ₹ 1,09,46,41,000/- by 209 WTGs. Thus, worked out cost of each WTG at Rs. 52,37,516/-, thereby worked out the cost of 6 WTG at Rs. 3,14,25,096/- and restricted the depreciation at 50% of it (since used for less than 180 days at 1,57,12, 548/-). Against this, the assessee went tin appeal before the CIT(Appeals). The CIT(Appeals) considered the order of the A.O. dated 18.3.2013. 7. From the above facts, there is a clear cut finding by the Tribunal in the order dated 9.3.2005 in ITA No.1403/Mds/98 for the assessment year 94 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paragraphs 26 27 that inter divisional transfer was included in the sales at sale price and this has been corrected by removing it from the sales account and the transfer has been accounted for cost which is in accordance with the accounting standards. Accordingly, the directors do not make a wrong statement to the shareholders that inter divisional transfer was shown on sale price. The Tribunal required the AO to re-examine the matter. In other words, it was held by the Tribunal that inter-divisional transfer does not result in a sale and the assessee cannot be said to have earned any profit and therefore, directed to reduce the profit and corresponding cost thereon. 7.1 Now, coming to the recomputation of the AO by apportioning total cost of manufacture between 209 WTG, since there is a finding of the Tribunal in earlier orders that the assessee manufactured only 156 WTGs and to arrive at the cost of one WTGs, the total cost of manufacture to be apportioned between 156 WTGs only. Thereafter the Assessing Officer has to arrive at cost of one WTG so as to determine depreciation on inter-divisional transfer. In other words, the AO has to follow the earlier order of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g precedent on the Madras High Court. Referring to the States Reorganisation Act, it was observed that there was nothing in the said Act or any other law which exalts the ratio of those decisions to the status of a binding law nor could the ratio decidendi of those decisions be perpetuated by invoking the doctrine of stare decisis. The doctrine of stare decisis cannot be stretched that far as to make the decision of one High Court a binding precedent for the other. This doctrine is applicable only to different Benches of the same High Court. 12. It is also well-settled that though there is no specific provision making the law declared by the High Court binding on subordinate courts, it is implicit in the power of supervision conferred on a superior Tribunal that the Tribunals subject to its supervision would confirm to the law laid down by it. It is in that view of the matter that the Supreme Court in East India Commercial Co. Ltd. v. Collector of Customs (AIR 1962(SC) 1893 (at p. 1905) : We, therefore, hold that the law declared by the highest court in the State is binding on authorities or Tribunals under its superintendence, and they cannot ignore it .. 13. This p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent and not the conclusion. A case is only an authority for what it actually decides and not what may come to follow logically from it. Judgments of courts are not to be construed as statutes (see Amar Nath Om Parkash v. State of Punjab (1985) 1 SCC 345). While following precedents, the court should keep in mind the following observations in Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai (AIR 1976 SC 1455 ) (at p.1467-68) : It is trite, going by Anglophonic principles, that a ruling of a superior court is binding law. It is not of scriptural sanctity butis of ratio-wise luminosity within the edifice of facts where the judicial lamp plays the legal flame. Beyond those walls and de hors the milieu we cannot impart eternal vernal value to the decision, exalting the doctrine of precedents into a prison- house of bigotry, regardless of varying circumstances and myriad developments. Realism dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record. Whatever be the position of a subordinate court's casual observations, generalisations and subsilentio determinations must be judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that judgment. It is thus clear that it is only the ratio decidendi of a case which can be binding - not obiter dictum. Obiter, at best, may have some persuasive efficacy. 18. From the foregoing discussion, the following propositions emerge: (a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein. (b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction. (c) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court may be summed up as follows : (i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the decision of the Tribunal is binding on the Assessing Officer and he cannot pick up a word or sentence from the order of the Tribunal de hors the context of the question under consideration and construe it to be complete law declared by the Tribunal. A judgment must be read as a whole. Being so, the Assessing Officer cannot sit in judgment over the order of the Tribunal, and he is required to give just effect to the order of the Tribunal. If he has any grievance, he is at liberty to appeal against that order of the Tribunal before higher forum. 20. It is needless to say that the income-tax authorities are required to exercise their powers in accordance with law, as per the power given to them in specific sections. If the powers conferred on a particular authority are exercised by another authority without mandate of law, it would create chaos in the administration of law and hierarchy of administration would mean nothing. Judgment of a higher forum cannot be substituted by the decisions of the lower authorities. Judicial discipline requires that there cannot be any amount of disregard to the superior authority in the hierarchy by the Assessing Officer. When once the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider the manufacture of 156 WTGs and sale of 150 WTGs and interdivisional transfer of 6 WTGs. Thus, it is the duty of the Assessing Officer to consider the same. 23. It is needless to say that the Tribunal has not rejected the claim of the assessee. Regarding the depreciation, again and again, it was held by the Tribunal that the depreciation has to be recomputed considering that the assessee has manufactured 156 WTGs and remitted back to the file of the AO again and again for reconsideration. If the AO has not properly understood the directions of the Tribunal, he can approach the Tribunal by filing a Misc. Application or if he did not agree with the finding of the Tribunal, he can explore and pursue the remedy available under the law, otherwise, he is duty bound to pass consequential orders in conformity with the finding of the Tribunal cited supra and he has no apprehension or choice to overlook the finding of the Tribunal, which is a higher forum. 24. For this purpose, we place reliance on the judgment of the Andhra Pradesh High Court in the case of State of Andhra Pradesh v. Commercial Tax Officer Another (169 ITR 564), wherein it was held that : The Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 2(ii) of the said Circular is applicable, since the demand created in the original assessment order stands partly upheld by appellate authorities which culminated in the impugned order of the A.O. Further, he relied on the judgment of the Delhi High Court in the case of Girnar Investment Ltd. v. CIT (340 ITR 529), wherein it was considered in detail the decision of the Apex Court in the case of Vikrant Tyres(247 ITR 821)(SC) and held that the same decision is applicable only in a case where assessee fully paid taxes at any point of time and no demand was outstanding against the assessee at any point of time. Further, he submitted that in Super Spinning Mills Ltd. vs. CIT Anr. (224 ITR 814)[Mad], it was held: Though addition made by Assessing Officer was deleted by CIT(A), it was restored by the order of ITAT The effect of the order of Tribunal is that the earlier notice of demand stood revived and became legal, valid and enforceable in view of sec.3 of the Taxation Laws (Continuation and Validation of Recovery Proceedings) Act, 1964, the original notice of demand continued to be valid and operative In the absence of payment of entire demand, interest u/s.220(2) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oing legal position will apply mutatis mutandis to the proceedings under other direct taxes also. These instructions may be brought to the notice of all the officers working in your charge. 28. After going through the above Circular, clause 2.(ii) becomes applicable only in the event when the original assessment order is varied or set aside by one appellate authority and on further appeal, the original order of the AO is restored either wholly or in part. In the present case, it is shown that the original assessment order was not all restored by the Tribunal in ITA No.1041/Mds/2008 dated 19.6.2009 and the consequential order was passed by the A.O. on 28.12.10 and this is the assessment order passed consequent to the order of the Tribunal. Being so, clause 2 (ii) of the aforesaid Circular is squarely applicable, wherein assessment is cancelled or set aside by an appellate authority becomes final, no interest u/s.220(2) can be charged pursuant to the issue of demand notice. In other words, when the assessment is reframed, interest u/s.220(2) can be charged only after the expiry of 35 days from the date of service of demand notice pursuant to the assessment order. This view is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither the assessment order dt. 24th Dec.,2006 nor the demand notice dt. 24th Dec.,2006 required the assessee to pay interest after thirty days from the date of service of the original demand notice dt. 28thy Feb.,1997. Since the demand itself was crystallized under the assessment order dt. 24th Dec., 2006 and the assessee under s.220(1) had time to pay that demand upto thirty days of the service of the demand notice dt. 24th Dec., 2006, the argument of the Revenue that the assessee was liable to pay interest under s.220(2), for the period prior to the crystallisation of the demand on 24th Dec.,2006 cannot be sustained. Therefore, in the facts of the present case, the decision of the Tribunal in holding that the assessee is liable to pay interest under s.220(2) from the end of the period mentioned in s.220(1) i.e. thirty days after the service of notice of demand dt. 24th Dec.,2006 till the date on which the amount demanded was paid cannot be faulted. 28.3 The judgment of the jurisdictional High Court relied on by the ld. DR in the case of Super Spinning Mills v. CIT (244 ITR 814) cannot be applied, wherein it was held that though the CIT(Appeals) allowed the appeal, the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs. 1,22,924. The condition precedent which could attract s.220(2) was absent. The adjustment made by the Revenue of the amount determined by it as interest by invoking s.220 from the refund that was due to the assessee at that time cannot be regarded as lawful. There was no question of any revival of a demand as the order made by the AO on 16th April, 1980, giving effect to the order in appeal was not required to be altered by reason of any further challenge to the appellate order. That appellate order itself has become final. Sec.3 of the Validation Act, therefore would not help to revive the notice. Vikrant Tyres Ltd. vs. ITO (2001) 166 CTR (SC) 1(2001) 247 ITR 821 (SC) relied on. 28.6 Further, co-ordinate Bench of the Tribunal in the case of M/s. Precot Meridian Ltd. v. DCIT in ITA Nos.1562 1565/Mds/2012 dated 8.5.2013 decided the issue of levy of interest u/s.220(2) of the Act by following the decision of that assessee in ITA No.1870/Mds/2012 dated 20.2.2013, wherein it was held as under : 5. The second ground raised by the assessee in the appeals relates to levy of interest under section 220(2) of the Act. We find that the issue is also adjudicated in ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department has clarified that where an assessment order is cancelled u/s.146 or cancelled/set aside by an appellate/ revisional authority and the cancellation/setting aside becomes final, no interest under section 220(2) can be charged pursuant to the original demand notice. The necessary corollary of this position will be that even when the assessment is reframed, interest can be charged only after the expiry of 35 days from the date of service of demand notice pursuant to such fresh assessment order. 16. The Assessing Officer has levied interest under the provisions of section 220(2) from the date of passing of the original assessment order whereas the original assessment order was set aside by the Tribunal and the same was remitted back to the Assessing Officer for deciding the matter afresh. Since a fresh assessment order has been passed by the Assessing Officer, the demand notice period specified under section 220(1) has to be taken into consideration from the date of passing of the fresh assessment order. The assessee is liable to pay demand within thirty days from the service of the demand notice in pursuance of the assessment order dated 21.12.2011. If the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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