RAJESH BINDAL, J. - (1.) THE following question of law had been referred for the opinion of this Court by the Income -tax Appellate Tribunal, 42/Asr/1988, in respect of the asst. yr. 1978 -79 : "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the extended time limitation period of 180 days stipulated under Expln. 1(iv) to s. 153 of the IT Act, 1961, was not available to set aside assessment -
(2.) BRIEFLY , the facts, as noticed in the statement of case, are that the assessee was deriving income from manufacture and sale of domestic appliances and machines tools. Return for the assessment year in question was filed declaring the same at Rs. 94,410. The assessment under s. 143(3) of the IT Act, 1961 (for short "the Act"), was completed vide order appeal against the order of assessment after remand, the CIT(A) partially deleted the additions. However, further appeal by the assessee before the Tribunal was accepted in toto. Relying upon an earlier order passed by the Tribunal in the case of Gheru Lal Bal Chand vs. ITO holding that in terms of s. 153(2A) of the Act, the assessment having not been completed within two years of the remand, the order was held to be barred by time. The Tribunal did not give the benefit of the extended period of limitation of 180 days as stipulated under Expln. 1(iv) to s. 153 of the Act.
(3.) WE have heard Shri Sanjiv Bansal, learned counsel appearing for the Revenue, and perused the paper book. To appreciate the controversy in the present case, it would be relevant to refer to the provisions of s. 153 of the Act, which are as under : "153. (1)..... (2A) Notwithstanding anything contained in sub -ss. (1) and (2), in relation to the assessment year commencing on the of an order under s. 250, s. 254, s. 263 or s. 264, setting aside or cancelling an assessment, may be made at any time before the expiry of two years from the end of the financial year in which the order under s. 146 cancelling the assessment is passed by the ITO or the order under s. 250 or s. 254 is received by the CIT or, as the case may be, the order under s. 263 or s. 264 is passed by the CIT. (3) The provisions of sub -ss. (1) and (2) shall not apply to the following classes of assessments, reassessments and recomputations which may, subject to the provisions of sub -s. (2A) be completed at any time - - (i) where a fresh assessment is made under s. 146; (ii) where the assessment, reassessment or recomputation is made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under ss. 250, 254, 260, 262, 263 or 264 or in an order of any Court in a proceeding otherwise than by way of appeal or reference under this Act; (iii) where in the case of a firm, an assessment is made on a partner of the firm in consequence of an assessment made on the firm under s. 147. Explanation 1. - -In computing the period of 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 reheard under the proviso to s. 129, or (ii) the period during which the assessment proceeding is stayed by an order or injunction of any Court, or (iii) the period commencing from the date on which the ITO directs the assessee to get his accounts audited under sub - s. (2A) of s. 142 and ending with the date on which the assessee furnishes a report of such audit under that sub -section, or (iv) the period (not exceeding one hundred and eighty days) commencing from the date on which the ITO forwards the draft order under sub -s. (1) of s. 144B to the assessee and ending with the date on which the ITO receives the directions from the IAC under sub -s. (4) of that section, or, in a case where no objections to the draft order are received from the assessee, a period of thirty days, or (v) in a case where an application made before the Income -tax Settlement Commission under s. 245C is rejected by it or is not allowed to be proceeded with by it, the period commencing from the date on which such application is made and ending with the date on which the order under sub -s. (1) of s. 245D is received by the CIT under sub -s. (2) of that section, shall be excluded. Explanation 2. - -Where, by an order referred to in cl. (ii) of sub -s. (3), any income is excluded from the total income of the assessee for an assessment year, then, an assessment of such income for another assessment year shall, for the purposes of s. 150 and this section, be deemed to be one made in consequence of or to give effect to any finding or direction contained in the said order. Explanation 3. - -Where, by an order referred to in cl. (ii) of sub -s. (3), any income is excluded from the total income of one person and held to be the income of another person, then, an assessment of such income on such other person shall, for the purposes of s. 150 and this section, be deemed to be one made in consequence of or to give effect to any finding or direction contained in the said order, provided such other person was given an opportunity of being heard before the said order was passed.";