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TMI Blog2023 (10) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of Section 153 is concerned with effect from 01.04.2016 onwards, the legislature has brought a time limit for adjudication of a proceeding under sub-section 3 as well which till the amendment was made was not stipulated. If the analogy of the principle contention of the learned counsel for the respondent-Department is to be accepted, then in that event, the very purpose of sub-section (2A) becomes redundant. The contention of Department also would not be sustainable for the reason that if, that would had been the intention of the legislature, then at the time of the amendment brought in to sub-section 3 of Section 153, the legislature would also had deleted the provision of subsection (2A), as it would not be any further required in the light of their contention and in the light of the subsequent amendment brought in to sub-section 3 of Section 153. In the light of above decision of Hon ble High Court of Kerala DR R.P. PATEL [ 2015 (3) TMI 1291 - KERALA HIGH COURT] the contention of Department that Section 153 (2A) of the Act has no application to the present case as the Tribunal had only partially remanded the matter, lacks merit and is untenable. From plain reading o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comparables ignoring the provisions of rule 10B(4) of the Act. Finally, the TPO passed a draft assessment order. The petitioner/assesse raised objections before the Dispute Resolution Panel (DRP) who in turn rejected the same, leading to filing of ITA before the Tribunal. 5. The Tribunal after due consideration of all the contentions put forth by the petitioner/assessee found that there were certain items which were not properly assessed by the Assessing Officer. To the aforesaid extent, the appeal of the petitioner/assessee was partly allowed and the matter was remitted back to the file of Assessing Officer with a direction to look into the aspect and take a decision in the matter after verifying the claim of the petitioner/assessee and giving a fair and reasonable opportunity of hearing. The order of the Tribunal was one which was passed on 27.06.2014. Now the consequential order pursuant to the remand by the Tribunal has been passed by the Assessing Officer only on 20.04.2018. It is this passing of the consequential order dated 20.04.2018 which is the bone of contention in the present writ petitions. 6. The contention is as to whether the consequential order could have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order of fresh assessment [or fresh order under section 92CA, as the case may be,] in pursuance of an order under section 254 or section 263 of section 264, setting aside or cancelling an assessment, [or an order under section 92CA, as the case may be], may be made at any time before the expiry of nine months from the end of the financial year in which the order under section 254 is received by the Principal Chief Commissioner of Chief Commissioner or Principal Commissioner of Commissioner, as the case may be, the order under section 263 or section 264 is passed by the [Principal Chief Commissioner or Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as the case may be]: [Provided that where the order under section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the [Principal Chief Commissioner or Chief Commissioner of Principal Commissioner or Commissioner, as the case may be,] on or after the 1st day of April 2019, the provisions of this sub-section shall have effect, as if for the words nine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the petitioner/assessee to state that the authority is denude of its powers after the prescribed time limit is provided under subsection (2A) of Section 153 of the Act. 11. It was also the contention of the learned counsel for the respondent-Department that the provision of Section (2A) would not be applicable in the instant case as the appeal was not allowed in toto, but was partly allowed. Therefore, the Tribunal as also the Commissioner (Appeals) have erred in as much as reaching to the said conclusion. It was further agitated that since it is only the term may which is used by the law makers while fixing the time limit for fresh assessment order to be passed after the matter stands remitted back from the Tribunal or a Court of appeal, it cannot be treated as a provision which is mandatory. Rather, it is only a nature of directive which was issued. 12. According to the learned counsel for the respondent-Department the order or directive given by the Tribunal is required to be enforced in its letter and spirit, nonetheless, prescribing a time limit for the fresh assessment. It was further contended that the order of the Tribunal or the Court of law cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the orders passed by the different authorities including that of the Tribunal is not in dispute. It is also not in dispute that the revisionary order under Section 263 was set aside by the Tribunal and the matter stood remitted back to the concerned Assessing Officer for fresh adjudication. The dispute arose on the consequential order passed by the Assessing Officer after an inordinately delayed period of time. This delayed consequential order passed by the Assessing Officer is under challenge in the present writ petitions. 17. As has been stated at the initial part of this order, the question to be considered is would the provision of sub-section (2A) of Section 153 be applicable upon the Assessing Officer in the course of the reassessment being done pursuant to the remand being made by the Tribunal. The question also would be whether the authority concerned upon a remand being made by the Tribunal have any time limit for completion of the assessment, reassessment or recomputation. 18. Now in the light of the aforesaid question that needs to be considered and answered by this Bench, it is relevant to take note of the entire contents of Section 153 and the sub-sections envi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60, 262, 263 or Section 264 subject to the provisions of sub-section (2A) and in a proceeding otherwise than by way of an appeal or reference under this Act. This in other words means that this is a provision which deals with a situation where the assessment, reassessment and recomputation is made, to give effect to a finding or a direction contained in an order under Sections 250, 254, 260, 262, 263 or Section 264 in an appeal or reference. 21. The aforesaid conclusion arrived at by this Bench further stands strengthened from the amendment that was brought to the Act, particularly, so far as sub-section 3 of Section 153 is concerned with effect from 01.04.2016 onwards. Vide the said amendment, the legislature has brought a time limit for adjudication of a proceeding under sub-section 3 as well which till the amendment was made was not stipulated. If the analogy of the principle contention of the learned counsel for the respondent-Department is to be accepted, then in that event, the very purpose of sub-section (2A) becomes redundant. The contention of the learned counsel for the respondent-Department also would not be sustainable for the reason that if, that would had been the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the assessment is passed by the Assessing Officer or the order under section 250 or section 254 is received by the Chief Commissioner or Commissioner, as the case may be. As already noted, while introducing sub-section (2A) in section 153 of the Act, the Legislature simultaneously made a small change in sub-section (3) thereof by adding the words, subject to the provisions of sub-section (2A) . 21. Sub-section (2A) of section 153 of the Act, therefore, in our view, would cover the cases where the Assessing Officer is required to pass a fresh order of assessment when such fresh assessment is necessitated on account of an order setting aside or cancelling the assessment. In comparison, clause (ii) of subsection (3) of section 153 would apply where there is a need for an assessment, reassessment or re-computation in consequence of or to give effect to any finding or direction contained in an order passed under section 250 etc. Significantly, after 1.4.1971, the provisions of sub-section (3) of section 153 of the Act are made subject to the provisions of section (2A) of section 153 of the Act. 22. Under the circumstances, the class of cases of fresh assessment to be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as having abated. In that view of the matter, the declaration prayed for by the petitioner must be granted. 23. The High Court of Delhi also in the case of Nokia India (P.) Ltd. (supra) dealing with the said provisions of law in paragraph Nos.22, 23, 24 and 25 held as under: 22. Having perused the impugned order of the ITAT carefully and the operative portions qua which the assessment order was set aside and the matter remanded to the AO, the Court is unable to agree with the contention of learned ASG that the aforementioned order of the ITAT did not constitute a complete setting aside of the assessment with directions to the AO to pass a fresh order. The Court does not agree with the submission of the learned ASG that the AO was chained by the ITAT s directions and could not have passed a fresh assessment order de novo pursuant to such remand. 23. The Court is also unable to agree with the contention that unless the entire assessment order is wholly set aside, the time limit for passing the fresh order under Section 153 (2A) would not be attracted. There is no warrant for such an interpretation. The object behind introduction of sub-section (2A) was to prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent situation where only a consequential order has to be passed in implementation of a direction issued by the appellate forum. In the present case, as already found above the direction was to consider the issue afresh. Therefore, Section 153(2A) of the Act is attracted. In view of the above, this is a case in which the Assessing Officer ought to have passed a consequential order within the time limit stipulated. Since no such order was passed the petitioner is entitled to succeed. In view of the above findings the writ petition is allowed. It is held that in so far as the issue that was remitted to the respondent Assessing Officer for fresh consideration, the time bar contained in Section 153(2A) of the Act operates. Recently, the Madras High Court also in the case of Virtusa Consulting Services (P.) Ltd. v. Dispute Resolution Panel (DRP) dealt with similar circumstances decided on 09.06.2022. 25. In the light of above decision of Hon ble High Court of Kerala, (supra) the contention of learned standing counsel for respondent-Department that Section 153 (2A) of the Act has no application to the present case as the Tribunal had only partially remanded the matter, la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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