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TMI Blog2024 (8) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... the said provision entails a strict adherence to the time period within which the remand order in the present case should have been passed by the respondents. The notices dated 21.07.2023, 09.08.2023 and 16.08.2023 for initiating fresh assessment were issued much beyond the statutorily prescribed period of limitation. The contention that passing fresh Assessment Order pursuant to the Tribunal s order dated 11.10.2019 is barred under the provisions of Section 153 (3) of the Act is merited and therefore the impugned notices issued by respondent No. 1 dated 21.07.2023, 09.08.2023 and 16.08.2023 cannot be sustained and need to be set aside. Effect of the failure to make an order of assessment within the limitation period, after the earlier assessment made is set aside or nullified in appropriate proceedings - As relying on Shelly Products and Another [ 2003 (5) TMI 4 - SUPREME COURT] since the respondents have failed to comply with the order of the Tribunal in passing a fresh Assessment Order within the stipulated time, we hold that the income as returned by the petitioner, Mr. Ramesh Chawla (HUF) would stand accepted. The logical consequence of refund of amount in excess of admitted l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal, petitioner was again assessed and respondent No. 1 vide order dated 26.03.2014 passed under Section 254/143 (3) of the Act again made the same additions on protective basis, raising a tax demand of Rs. 72,29,982/-. 8. Petitioner challenged the Assessment Order before CIT(A). However, his appeal was dismissed, holding that the addition of Rs. 1 crore made by the AO under Section 68 of the Act on protective basis was justified. 9. Aggrieved with the order of CIT (A), petitioner preferred an appeal before the Tribunal. The Tribunal restored the matter to the file of the AO with certain findings and directions. The Tribunal vide order dated 11.10.2019 directed the AO to comply with such directions within a period of six months from the date of receipt of the order. Relevant portion of the order passed by the Tribunal is reproduced hereunder:- 11. Under these circumstances, we direct the Assessing Officer as under: firstly , to ascertain whether in the case of Shri Harish Kumar any finding has been given by the appellate authority that additions made in his hand should be taxed on protective basis and substantive addition should have been made in the hands of the donee, i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me request. 12. Upon receipt of the aforesaid letters, respondent No. 1 woke up and issued notices dated 21.07.2023 and 09.08.2023, directing the petitioner to file documents in relation to assessment of Harish Kumar. Petitioner submitted reply taking objection that the proceedings initiated vide notice dated 21.07.2023 have become time-barred, invalid and void, since no appeal effect order was passed within the time period granted by the Tribunal. 13. Despite petitioner s response dated 14.08.2023, respondent No. 1 again issued notice dated 16.08.2023 to the petitioner for providing documents. Petitioner filed response to the notice dated 16.08.2023, again reiterating that the proceedings were time-barred. 14. Petitioner deposited INR 37,73,012/- under protest against the raised demand. 15. Upon failure of respondent No. 1 to grant the refund, petitioner filed the instant writ petition to ventilate its grievance against the inaction of the respondents. 16. Learned counsel appearing on behalf of the petitioner submitted that the action of the respondents in not giving appeal effect and not issuing the refund of tax is totally unreasonable and unjustifiable. It has been contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal Chief Commissioner or Chief Commissioner or [Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as the case may be,] or, as the case may be, the order under Section 263 or Section 264 is passed by the [Principal 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 Commissioner or Commissioner on or after the 1st day of April, 2019, the provisions of this sub-section shall have effect, as if for the words nine months , the words twelve months had been substituted.] 21. Admittedly, respondents did not file any appeal challenging the order dated 11.10.2019 passed by the Tribunal. The directions given by the Tribunal were to be carried out by the AO within a period of six months, but AO woefully failed to adhere to the stipulated timelines. No action was taken to give effect to the order of the Tribunal within the stipulated period. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat payable, no further demand can be made for recovery of the balance amount since a fresh assessment is barred. In other words, the tax paid by the assessee must be accepted as it is, and in the event of the tax paid being in excess of the tax liability duly computed on the basis of return furnished and the rates applicable, the excess shall be refunded to the assessee, since its retention may offend Article 265 of the Constitution. 36. We cannot lose sight of the fact that the failure or inability of the Revenue to frame a fresh assessment should not place the assessee in a more disadvantageous position than in what he would have been if a fresh assessment was made. In a case where an assessee chooses to deposit by way of abundant caution advance tax or self-assessment tax which is in excess of his liability on the basis of return furnished or there is any arithmetical error or inaccuracy, it is open to him to claim refund of the excess tax paid in the course of assessment proceeding. He can certainly make such a claim also before the authority concerned calculating the refund. Similarly, if he has by mistake or inadvertence or on account of ignorance, included in his income any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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