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TMI Blog2018 (5) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 148 of the Act was beyond the statutory time of six years from the end of the assessment year as prescribed under the Act. 3. In this case, re-assessment order has been framed pursuant to notice under section 148 of the Act and demand has been raised by the Assessing Officer. The facts of the case are that notice under section 148 was issued for assessment year 2005-06 on 14/1/2016. In response to that notice, assessee had submitted a written reply stating that notice under section 148 was barred by limitation in view of the provisions of section 149 of the Act. So far Revenue is concerned, the case is that the said notice under section 148 of the Act has been issued as per provisions of section 150(1) of the Act wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt observed as under: "In view of the aforesaid, we are of the opinion that the long term capital gains could only be computed in the year when the property was transferred, namely, in the financial year 2004-05 that is assessment year 2005-06." 6. The Revenue thereafter states that in all the orders of the appellate authorities, there is a clear finding that the Assessing Officer may consider computation of capital gain in assessment year 2005-06. Therefore, the Revenue further contends that this means that the appellate authorities are of the view that long term capital gain in the case of the assessee should be taxed by the Assessing Officer in assessment year 2005-06. Accordingly, notice under section 148 was issued to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under section 148 has to be issued for the purpose of such assessment or re-assessment under section 147 of the Act. Thereafter, section 149 provides time limit for issue of notice under section 148, which is either four years or six years as per conditions stated in the provision. Therefore, to the maximum, within six years notice under section 148 has to be issued. However, this embargo or restriction of 149 ceases to exist with application of section 150(1) wherein it is stated that notwithstanding anything contained in section 149, such notice under section 148 may be issued at any time in order to give effect to any finding or direction contained in an order passed by any authority in any proceeding under this Act by way of appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding that it belongs to B or does not belong to B would be determinative of the issue whether it can be taxed as A's income. A finding respecting B is initially involved as a step in the process of reaching the ultimate finding respecting A. If, however, the finding as to A's liability can be directly arrived at without necessitating a finding in respect of B, then a finding made in respect of B is an incidental finding only. It is not a finding necessary for the disposal of the case pertaining to A. As regards the expression "direction" in section 153(3)(ii) of the Act, it is now well settled that it must be an express direction necessary for the disposal of the case before the authority or court. It must also be a direction whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in section 149 is operative and here within six years notice should have been issued but in the case of the assessee, it was not done and the appellate order itself, which is the basis of issue of notice under section 148 and very basis for invoking provisions of section 150(1), was passed on 28/2/2013. Notice under section 148 was issued thereafter, therefore, it is beyond the period of limitation. 12. We further take guidance from the decision of the Hon'ble Apex Court in the case of K.M. Sharma vs. ITO [2002] 122 Taxman 426 (SC) wherein it was held that fiscal statute more particularly on a provision such as the present one regulating period of limitation must receive strict construction. Law of limitation is intended to give cer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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