9911796707
TMI Blog2024 (8) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect to the order of the Tribunal within the stipulated period. The statutory limitation period prescribed in sub section 3 of Section 153 also expired on 30.09.2021 i.e. 12 months from the end of the financial year in which the order was passed u/s 254 by the Tribunal. The underlying rationale of the Legislature behind the enactment of Section 153 (3) and setting the limitation therein, cannot be envisaged to expand the time limit for passing of a fresh assessment. In fact, 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 Assessment Order dated 11.08.2023 is thus clearly beyond the statutorily prescribed period of limitation. In view of the above, the contention that passing of a 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 as also the Assessment Order dated 11.08.2023 cannot be sustained and need to be set aside. Since the respondents have failed to comply with the order of the Tribunal in passing a fresh As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner, then filed an appeal before the Income Tax Appellate Tribunal [ Tribunal ]. The Tribunal vide its order dated 28.09.2012, remitted the matter to the file of the Assessing Officer [ AO ]. 7. Pursuant to the directions passed by the 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. 72,36,015/-. 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore sent a letter dated 27.03.2023 to respondent No. 1 for giving appeal effect to the orders of the Tribunal and for issuance of refund for the subject AY. 11. Upon receipt of the aforesaid letter, respondent No. 1 woke up and issued a notice dated 11.05.2023 to the petitioner to provide the assessment records in the case of Harish Kumar and asked him to submit the relevant documents. 12. On 12.06.2023, petitioner sent a follow up letter, again requesting to pass an appeal effect order to the Tribunal s order dated 11.10.2019 and issue refund due to the petitioner. 13. Respondent No. 1 again issued notices dated 07.07.2023 and 20.07.2023, directing the petitioner to produce documentary evidence and on 11.08.2023, issued a demand notice raising a demand of Rs. 73,10,948/-. 14. Petitioner deposited INR 36,62,185/- under protest against the raised demand. 15. The Assessment Order with no change in the assessed income was passed by respondent No. 1 on 11.08.2023, which was served upon the petitioner on 28.08.2023. The income of the petitioner was assessed at Rs. 1,00,90,100/-. 16. Upon failure of respondent No. 1 to grant the refund, petitioner filed the instant writ petition to venti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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.] 22. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in excess of the liability incurred by him on the basis of income disclosed. Even if the tax paid is found to be less than that 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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