9911796707
TMI Blog1991 (4) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessee under the Income-tax Act. For the assessment year 1971-72, the petitioner filed a return of its income, on the basis of which an order of assessment was made by the Income-tax Officer on February 27, 1975, under section 142 of the Act. It was a case of nil assessment. Subsequently, the Income-tax Officer sought to reopen the assessment by issuing a notice under section 148, which was questioned by the petitioner by way of writ petition in this court (C.M.W.P. No. 578 of 1976). This aspect is not really relevant for our purpose and it is also not clear as to what happened to the said writ petition. What is, however, relevant is that by a notice dated February 7, 1977, the Commissioner of Income-tax proposed to revise the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... miting the discretion of the Income-tax Officer and moreover forcing him to take an indicated course of action while at the same time stating that he wanted him to pass the order de novo in accordance with law. When the order has to be passed in accordance with law de novo, the Income-tax Officer has to be left unfettered to act in the light of his judgment, to consider the law and to pass orders, in accordance therewith. 8. We, therefore, direct that while passing such order, the Incometax Officer will ignore the various observations made by the Commissioner in his order enunciating his views under the law, as we have already noted that counsel for the Commissioner agreed to this course of action. 9. In the result, for statistical purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner) ought to be excluded. It is pointed out that subsection (2A) not only refers to section 263, but also to section 254, and, since the appellate order of the Tribunal is made under section 254 and, more particularly, because the Tribunal had made certain specific directions relating to the manner of making the fresh assessment, the two-year period should be computed from the date of the Tribunal's order, i.e., from February 28, 1979, and not from the date of the Commissioner's order. In our opinion, the Department is right. We proceed to give reasons for our opinion. Sub-section (1) of section 153 prescribed the period of limitation within which an order of assessment has to be made. In respect of an assessment year com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the provisions of sub-sections (1) and (2) shall not apply to certain classes of assessments, reassessments or recomputations which can be completed at any time. One of the classes of assessments specified in the sub-section is "(ii) where the assessment, reassessment or recomputation 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 or appeal or reference under this Act. " But, as stated above, this sub-section is expressly made subject to the provisions of sub-section (2A) by the Taxation Laws (Amendment) Act, 1970. Explanation 1 to the section prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 is made on partner of the firm in consequence of an assessment made on the firm under section 147. Explanation 1. - In computing the period of limitation for the purposes of this section, - . . . (ii) the period during which the assessment proceeding is stayed by an order or injunction of any court. " Though there was some discussion before us with respect to the respective fields in which sub-section (2A) and sub-section (2) operate, and also with res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal has passed the order, there is no question of making any assessment in pursuance of the Commissioner's order. The assessment has to be made only in accordance with the Tribunal's directions and for that, the period of limitation is to expire only on March 31, 1981. (The Tribunal's order is dated February 23, 1979). This writ petition was filed long prior thereto, i.e., on July 21, 1980, and further proceedings got stayed by an order of this court on the same day. In this case, we need not decide the question what will be the position if the Tribunal had simply dismissed the appeal without making any directions. That question can be gone into if and when it arises in an appropriate case. A minor point was urged by Sri Raja Ram A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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