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TMI Blog2016 (8) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench of the Hon’ble Madras High Court was passed on 16/7/2009 and received by the CIT on 4/8/2009. The assessment was completed on 11/1/2010 i.e. within 160 days from the final order of the Hon’ble Madras High Court. Thus, as against available days of 171 days, the assessment passed is well within the period of limitation. The contention of the assessee is dismissed. - ITA No.670/Bang/2010, ITA No.671/Bang/2010 - - - Dated:- 20-7-2016 - SHRI VIJAY PAL RAO, JUDICIAL MEMBER and SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER For The Assessees : Shri S.Parthasarathi, Advocate. For The Revenue : Dr. P.K.Srihari, Addl.CIT(DR). ORDER Per INTURI RAMA RAO, AM : These are appeals filed by two assessees viz., Late Shri P.Yogesh Achar, partner in the firm M/s.Canara Jewellers and the firm M/s.Canara Jewellers, directed against two orders of the CIT(A), Mangalore, dated 17th March, 2010 for the assessment year 1993-94. Since common issue is involved in both appeals, we shall proceed to dispose of the same by this consolidated order. 2. The assessee viz. Yogesh Achar raised the following grounds of appeal: 1. On the facts and in the circumstances of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made available to the Assessing Officer and on verification found 67 orders were confirmed by customers out of 247 orders. 4. The learned CIT(A) has failed to consider the explanation regarding excess stock computed by the Assessing Officer as available out of gold given to goldsmiths and items received towards sample and repairs. 5. The learned CIT(A) ought to have appreciated the explanation of the appellant that silver to the extent of 7290 kg found to be excess by the assessing officer includes individual stock of silver which was brought by the partner and family members from their individual holding . Hence appellant having explained the sources of the same ought to have deleted the same in toto. 6. The learned CIT(A) Further erred in confirming the addition of ₹ 2,90,000/- as diamonds sold outside the books of accounts without accepting the explanation of the appellant that the shortage in the stock of diamond was the result of having given the diamond to the workers for cleaning purpose during the course of business. 7. The leaned CIT(A) also erred in upholding the addition to the extent of ₹ 1,00,000 towards undisclosed income from busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the ITSC dated 21/5/1998 as well as the order of the learned Single Judge dated 28/2/2001 by observing that this order of the judgment of the Hon ble High Court shall not stand in the way of the AO or the competent authority to proceed in accordance with law, if otherwise, it was not barred by limitation. 5. Subsequently, the AO issued fresh notices and revived the assessment proceedings that were pending as on the date when the application was admitted by the ITSC and the assessments were completed u/s 143(3) vide order dated 11/1/2010 at a total income of ₹ 19,33,256/-. The issue of limitation was dealt with by the AO vide para.9 of the assessment order which reads as under: 9. The assessee has not raised any objection during the course of assessment proceedings regarding the limitation of time for completing the assessment. However, it was observed that the assessee has raised an objection that the assessment is barred by limitation for the A.Y. 1993-94 in the case of M/s Canara Jewellers. For the sake of clarity, it is hereby stated that the assessment in this case is being completed well before the time barring date. The same is analyzed as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this period should be excluded while calculating the time available for completion of assessment. c. The provisions of clause (i) and (ii) of explanation 1 to section 153 read as under. In computing the period of limitation for the purposes of this section -- (i) the time taken in reopening the whole or any part of the proceeding or giving an opportunity to the assessee to be reheard under the proviso to section 129, or (ii) the period during which the assessment proceeding is stayed by an order or injunction of any court---- shall be excluded In the present case, the sett lement Commission has passed the order on 21/05/1998. The order of the Settlement Commission was challenged by the assessee in Writ Petition No. 12315 of 1998 before the Hon'ble Madras High Court The Hon'ble High Court granted the stay against the implementation of the order of Settlement Commission in W.M.P. 18718 18719 of 1998 dated 01/12/1998. The learned single judge passed the order on 28/02/2001 upholding the order of Settlement Commission. The assessee filed Writ Appeal against the order of the Single Judge in Writ Appeal No. 971 of 2001 in the Hon'ble High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the appellant who had carried the matter further to the Hon'ble High Court of Madras. Had he not done so and accepted the ITSC's verdict, there would be no scope for the assessing officer to revive the impugned assessment proceeding. 16. The appellant has failed to appreciate that the assessing officer was duty bound to revive the assessment proceeding in the light of the observation of the Hon'ble High Court, in its final order dated 16.07.2009, that the judgment shall not stand in the way of the assessing officer or competent authority to proceed in accordance with law, if otherwise it was not barred by limitation. Clearly, if the period of proceedings before ITSC and the Hon'ble High Court were not excludible, then the Hon'ble High Court's observation would be rendered meaningless. The Hon'ble High Court has also noted in its order the provision of section 153(3)(v), implying that the assessment proceeding could be presumed by the assessing officer under that provision. The assessing officer has correctly elucidated in great detail the provisions relating to the periods excludible under section 153. I strongly agree with his analysis that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here a proceeding before the Settlement Commission abates under section 245HA, the period of limitation available under this section to the Assessing Officer for making an order of assessment, reassessment or recomputation, as the case may be, shall, after the exclusion of the period under sub-section (4) of section 245HA, be not less than one year; and where such period of limitation is less than one year, it shall be deemed to have been extended to one year, and for the purposes of determining the period of limitation under sections 149, 153B, 154, 155, 153BE and 231 and for the purposes of payment of interest under section 243 or section 244 or, as the case may be, section 244A, this proviso shall also apply accordingly. The above proviso was inserted w.e.f 1/6/2007 by the Finance Act, 2007. This proviso clearly provides that where abatement of assessment proceedings u/s 245HA consequent upon admission of application by the Settlement Commission after exclusion of the period under sub-sec.(4) of sec.245HA i.e. the period during which the proceedings are pending before the Settlement Commission, period available for assessment shall not be less than one year and where su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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