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TMI Blog2021 (7) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... The writ petitioner filed W.P.Nos.34985 and 34986 of 2012 and this High Court admitted the Writ Petitions and granted interim stay of all further proceedings on 21.12.2012. The period of limitation, under Section 153 (2) of the Income Tax Act, 1961 (hereinafter referred to as, 'the Act'), to pass a re-assessment order ended on 31.03.2013. However, on 12.04.2013, the interim stay granted was extended until further orders. Thereafter, the two Writ Petitions filed by the petitioner were dismissed by this Court on 04.07.2014. 3.In this context, the learned counsel for the petitioner made a submission that the period of limitation, prescribed under Section 153 (2), to pass an order of re-assessment expired on 12.10.2014. However, the impugned order of re-assessment, under Section 143 (3) read with Section 147 of the Act, was passed by the respondent/assessing authority, on 21.10.2014 i.e., beyond the period of limitation and thus, the impugned orders are liable to be set aside. The learned counsel for the petitioner states that the Writ Petitions were dismissed on 04.07.2014 and including that, 100 days of stay granted by this Court is to be reckoned. Accordingly, the last date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Tribunal has held that there is no procedure in the High Court to communicate the order to the party to make it effective. The provisions of the income tax Act for filing of the appeal from the date of service of the order will not be attracted to calculate the period of limitation to complete the assessment. In the present case, we are not concerned with limitation for any particular act to be performed, but the arrest of the limitation by an interim order passed by the High Court. As soon as the order was vacated, the limitation will restart and will exhaust itself on the period of limitation provided under the Act." 6.In the case of Commissioner of Income Tax-1, Agra Vs. Chandra Bhan Bansal, reported in [2014] 46 taxmann.com 108 (Allahabad), the High Court of Allahabad held as follows: "9.The aforesaid writ petitions having been dismissed on 01/8/1995, as per proviso to Explanation 1 to Section 153, the assessment was to be completed by 30/9/1995, but in the present case the assessment was completed on 04/1/1996 i.e. beyond 30/9/1995. The submission of Shri Shambhu Chopra, learned counsel appearing for the Revenue to save the assessment from being beyond the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod from the date of communication of the order where they so intended. The use of concept of communication of receiving the order in the same provision which is absent in Explanation 1 (ii) concerned clearly indicates that for the purposes of Explanation 1 (ii), the communication of the order of the Court vacating the stay order or injunction is not contemplated." 7.In the case of A.P.Shanmugaraj Vs. Deputy Commissioner of Income Tax, reported in [2020] 424 ITR 347, the Hon'ble Division Bench of the Madras High Court made an observation as under: "6.On a bare perusal of the provisions of the Act quoted above, it is very clear that the period of limitation prescribed in Section 158BE of the Act excludes the period commencing from the date on which the Assessing Officer directs the Assessee to get his accounts audited viz., the date of the order under Section 142(2A) of the Act. The date of order or direction to get the accounts audited is important and not the date on which such order or direction under Section 142(2A) of the Act is served on the Assessee or received by the Assessee. In the present case, the order under Section 142(2A) of the Act was made by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing regard to this fact also, it is not possible to agree with the submission that the appellant would be exposed to grave injustice, if she is not allowed to prefer the appeal which admittedly was preferred 26 days after the expiry of the period of limitation." 9.The High Court of Delhi, in the case of Saheb Ram Om Prakash Marketing (P.) Ltd., Vs. Commissioner of Income Tax, reported in [2017] 398 ITR 292 (Delhi), made an observation as follows: "19. Even otherwise, the assertion that the Revenue was aware of the order only on 2nd December 2016 does not appear to be correct. The Revenue has been unable to dispute the fact that, on 30th November 2016, a notice was issued by the AO to the Assessee under Section 142 (1) of the Act and this was pursuant to the order passed by this Court on 9th November 2016. Clearly, therefore, on the date that such notice was issued, the AO was aware of the order dated 9th November 2016 of this Court. Also, the order dated 9th November 2016 was passed in the presence of counsel for the Revenue and, therefore, the Revenue clearly was aware of the said order on that date itself. 20. For all of the aforementioned reasons, the Court is unable to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.P.Nos.34985 and 34986 of 2012 7. 04.07.2014 Final orders passed in W.P.Nos.34985 and 34986 of 2012 by the Division Bench 8. 08.10.2014 SLP Civil was filed by the petitioner as against the common order passed in W.P.Nos.34985 and 34986 of 2012 dated 04.07.2014 and diary No.34647 of 2014 was allotted 9. 10.10.2014 Notice under S.142(1) by the department to the petitioner 10. 10.10.2014 Notice under S.143(2) by the department to the petitioner 11. 16.10.2014 Reply from the petitioner 12. 20.10.2014 Reply from the petitioner 13. 21.10.2014 Impugned order of reassessment 14. 27.10.2014 SLP filed by the petitioner was registered and SLP No. was allotted SLP (c) No.029005/2014 15. 03.11.2014 Interim order in SLP filed by the petitioner "In the meantime, the reassessment order shall not be framed, if not framed so far" 16. 08.12.2016 Common order passed by the Supreme Court as follows: We may make it clear that this Court has not made any observation on the merits of the cases, i.e., the contentions which are raised by the appellant challenging the move of the Income Tax Authorities to re-open the assessment. Each case shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of India in the case of Jeet Singh and another vs. Union of India and others, reported in (2011) 13 SCC 534, wherein the Hon'ble Apex Court made the following observations: "19.We do not find any fault with the Land Acquisition Collector for not making the award before getting a certified copy of the order dated 23rd July, 2002 on 27th March, 2003 especially when he was not informed about the said fact earlier. There cannot be any doubt that no person would ever think of taking an action when he has been restrained by any interim order of any court from doing so. Once a person has been restrained by a court of competent jurisdiction from doing something, the person concerned is not expected to do anything till he gets communication from the court to the effect that the earlier order was modified or vacated. No officer would ever think of taking a chance upon any unauthentic communication with regard to vacation of interim relief because in that event, if the information is not correct, he might be held guilty under the provisions of the Contempt of Courts Act. In the instant case, there is nothing on record that prior to 27th March, 2003, the Land Acquisition Collector ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f limitation. 19.The learned Standing Counsel for the respondent further relied on the judgment of this Court in the case of M/s.Madras Race Club Vs. Deputy Commissioner of Income Tax, dated 23.04.2012, wherein this Court made the following observations in Paragraph Nos. 25 and 26, which reads as under: "25.This Court is of the considered opinion that a pragmatic approach is required in such circumstances and the situations prevailing in the High Courts are to be considered. High Court cannot close its eyes in respect of the happenings and the situation prevailing in the matter of dealing with litigations and on hyper-technical grounds, the liability or the opportunity cannot be dispensed with. Even in such circumstances, the law of limitation is to be interpreted in a constructive manner so as to ensure that the purpose and object of the provisions are dealt with in accordance with the objects and reasons of the Act. 26.Undoubtedly, as rightly pointed out, if the date of expiry of the interim stay is taken into consideration, the petitioner may be correct, as the period of limitation contemplated expired. However, the fact remains that the interim order granted initially on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present writ petition has been filed challenging the proceedings dated 24.10.2014, which is the reassessment order passed by the competent authority." 20.Let us now consider the spirit of Sub Clause (ii) of Explanation 1 to Section 153 of the Income Tax Act, which states that in computing the period of limitation for the purposes of Section 153, the period during which the assessment proceeding is stayed by an order or injunction of any Courts. 21.Constructive interpretation of the provision would be that the period during which the assessment proceedings is stayed. Thus, the date of grant of stay and vacating the order of stay is to be considered for the purpose of reckoning the period of limitation. In both the cases, where the date of stay as well as vacating the order of stay, the authorities of the Income Tax Department is expected and bound to act only if the stay order is communicated or vacating the interim stay order is communicated. Neither the stay order nor vacating the stay order can be acted upon in the absence of communication of the order passed by the High Court with its seal. Thus, the importance of the official communication cannot be brushed aside. 22.The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in the open Court by itself cannot be the starting point of the determining the period of implementation under Section 15 of the Act. It has also to be shown that the order of the District Forum so pronounced was duly signed and dated by the members of the District Forum constituting the Bench and the same was communicated to the parties free of the charge. That being so, it has to be appreciated that mere pronouncement of an order in the open Court will not be enough, but under the scheme of the Rules, a copy of the said order has also to be communicated to the parties affected by the aid order, so that the party adversely affected therefrom may have a fair and reasonable opportunity of knowing that text, reasons and contents thereof, so as to formulate grounds of attack before the appellant or the higher forums. In the absence of such communication of signed and dated ,order the party adversely affected will have no means of knowing the contents of the order, so as to challenge the same and get it set aside by the appellate authority or the higher Forums". 24.The above Supreme Court judgment will have an apt application with reference to the facts on hand. It is not as if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment shall not proceed with further action. The learned counsel for the petitioner reiterated that without even waiting, the respondent has hurriedly acted and passed the impugned orders of re-assessment. Thus, on that ground also, the re-assessment order is to be set aside. 27.This Court is of the considered opinion that it is not the case as if no opportunity was granted to the petitioner. Opportunity was given, but the petitioner has chosen to make a representation to the authorities that they are supposed to wait until the Hon'ble Supreme Court takes up his appeal for hearing. This Court is of the considered opinion that mere filing of an appeal before the High Court or Hon'ble Supreme Court would not preclude the competent authorities from exercising their powers, which is otherwise conferred under the provisions of the Act. Unless any interim order or otherwise is communicated to the authorities, they are bound to proceed under the provisions of the Act, in the manner known to law and therefore, mere filing of the case before the Hon'ble Supreme Court is not a ground to raise that the petitioner was not afforded with opportunity. Even, the petitioner has requ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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