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TMI Blog2021 (4) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by limitation and no fault can be found with the finding of the tribunal. In view of preceding analysis, the substantial questions of law are answered against the revenue and in favour of the assessee. - I.T.A. NO. 307 OF 2018 - - - Dated:- 6-4-2021 - THE HON'BLE MR. JUSTICE ALOK ARADHE And THE HON'BLE MR. JUSTICE M.G.S. KAMAL FOR THE APPELLANTS : SRI. T.N.C. SRIDHAR, ADV., FOR SRI. JEEVAN J. NEERALGI, ADV FOR THE RESPONDENT : SRI. PERCY PARDIWALLA, SR. COUNSEL A/W MS. MANASA ANANTHAN, ADV., FOR SRI. T. SURYANARAYANA, ADV JUDGMENT This appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act for short) has been preferred by the revenue. The subject matter of the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an order dated 08.12.2011 restrained the Transfer Pricing Officer from proceeding to pass a draft assessment order for a period upto 07.03.2012 i.e., approximately 3 months. The writ petition was disposed of by a bench of this court vide order dated 07.03.2012 remitted the matter to the Assessing Officer and directed the assessee to appear before the Assessing Officer on 21.03.2012. It was also clarified that all other contentions are kept open. 3. The Transfer Pricing Officer by an order dated 13.06.2012 after affording an opportunity to the assessee passed an draft order of assessment on 05.07.2012 and forwarded the same to the assessee on 11.07.2012. The assessee filed an objection before the Dispute Resolution Panel on 09.08.2012. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, learned Senior counsel for the assessee submitted that the draft assessment order ought to have been passed on 06.05.2012, whereas, the same has been passed on 05.07.2012, which is beyond the period of limitation. It is contended that Section 153(2A) of the Act applies if the order of assessment is set aside in entirety by the appellate authority, whereas, Section 153(3)(ii) applies to the case where any direction is issued either by appellate authority, revisional authority or any other authority to decide an issue. It is also pointed out that in the instant case, no direction / finding has been issued by this court in the order dated 07.03.2012 passed in W.P.No.45313/2011 and a direction issued to remit the matter and asking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have effect as if for the words :two years , the words twenty-one months had been substituted. Provided further that in case the assessment year in which the income was first assessable is the assessment Year commencing on the 1st day of April, 2005 or any subsequent assessment year and during the course of the proceeding for the assessment of total income, a reference under Sub-Section (1) of Section 92CA - (i) was made before the 1st day of June 2007 but an order under sub-Section (3) of that Section has not been made before such date or (ii) is made on or after the 1st day of June 2007. The provisions of clause(a) shall , notwithstanding anything contained in the first proviso, have effect as if for the words 't ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation for the purposes of this section - (i) the time taken in reopening the whole or any part of the proceeding or in giving an opportunity to the assessee to be re-heard under the proviso to Section 129 or (ii) the period during which the assessment proceeding is stayed by a order or injunction of any court, or (iia) the period commencing from the date on which the Assessing Officer intimates the Central Government or the prescribed authority, the contravention of the provisions of clause (21) or clause (22B) or clause (23A) or clause (23B) or sub- clause (iv) or sub-clause(v) or sub-clause (vi) or sub-clause (via) of clause (23C) of Section 10, under clause (i) of the proviso to sub-section (3) of Section 143 and endi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arising out of an assessment must be a finding necessary for disposal of a particular case. Similarly, a direction must be an expressed direction necessary for disposal of the case before authority of court and must also be a direction which the authority of court is empowered to give while deciding a case before it. Thus, it is evident that the order dated 07.03.2012 passed by learned Single Judge of this court neither contains any finding nor any direction. 9. The proceedings were stayed for a period from 08.12.2011 to 07.03.2012 i.e., for a period of 103 days and if period of 103 days is added, and a period of 60 days as prescribed in proviso to Section 153(4) is added, the draft order ought to have been passed by the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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