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TMI Blog2011 (5) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 3. In ground No.2, the assessee has challenged that the impugned assessment is barred by limitation, while as ground No.3 4 pertains to depreciation on leased assets. 4. Let us examine ground No.2 which is reproduced herein below before venturing into the other grounds. Impugned reassessment barred by limitation. a) The learned CIT (Appeals) erred in holding that the impugned reassessment dated 15-12-2009 completed u/s. 143(3) r/w. section 254 is not barred by limitation. She ought to have annulled the impugned reassessment as the same is barred by limitation in terms of the second proviso to sub-section (2A) of section 153. b) The learned CIT (Appeals) failed to appreciate that the Hon ble ITAT completely set aside t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he instant case go to raise a lot of doubt in the entire transaction. However, one aspect that is absent in the instant case is the enquiry from the State Electricity Board with reference to the sale invoice raised on the assessee, the lease agreement entered into with the assessee, payment of 20% of ₹ 4.93 crores to the assessee and the answer to the question whether the assessee received 85% of ₹ 4.93 crores or not. We are, therefore, of the view that the matter requires reexamination at the level of the Assessing Officer. The decisions of the Special Bench (supra) and the jurisdictional High Court (supra) would have to be examined with reference to the facts of the case and whether the facts of the care are identical or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Therefore, time limit stipulated under section 153(3) of the Act is applicable and the order by the ld. AO is well within the time limit. 7. The ld. CIT(A) held the issue in favour of the Revenue. The findings of the ld. CIT(A) is extracted hereinbelow for reference: 5. On a careful consideration of the appellant s submissions, an in-depth analysis of the decisions of the Special Bench, the jurisdictional High Court and that of the Orissa High Court as well as a thorough examination of the facts gathered as a result of enquiries conducted by the AO during the course of assessment proceedings, it is absolutely imperative to highlight the following salient facts:- i) Firstly, with regard to the ground raised on the technical issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no specific finding or specific direction within the scope set out in section 153(3) of the Act. The Tribunal had allowed the appeal in part for statistical purpose which clearly stands to prove that it was a case of set aside with respect to certain issues in the appeal. Ld. AR further submitted that the order of ITAT dated 31.7.2006 was received by the Commissioner of Income Tax well before 31.3.2007. Consequently time barring date for reassessment in terms of second provision of section 153(2A) was 31.12.2007. Therefore, the impugned reassessment order passed on 15.12.2009 is barred by limitation and therefore liable to be annulled. 9. Ld. DR supported the decision of the ld. CIT(A) and prayed that since the Tribunal had pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The provisions of sub-section (1), 1(A), (1B) and (2) shall not apply to the following classes of assessments, reassessments and recomputations which may, subject to the provisions of subsection (2A), be completed at any time (i) .. (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 of appeal or reference under this Act; (iii) where, the case of a firm, an assessment is made on a partner of the firm in consequence of an assessment made on the firm under section 147. 11. Section 153(3) re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s. 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 which the authority or court is empowered to give while deciding the case before it. The expressions finding and direction in s. 153(3)(ii) must be accordingly confined. Section 153(3)(ii) is not a provision enlarging the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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