Nilay Kirtibhai Tailor, Surat v. Income Tax Officer, Ward -1(3)(3), Surat

ITA 220/SRT/2017 | 2008-2009
Pronouncement Date: 22-11-2018 | Result: Allowed
Expert Summary: Where sub-section (2) of section 150 makes it clear that re-assessment permission under section 150(1) of the Act would not be available to the Department, when the period of limitation for such assessment or re-assessment has expired at the time when order which was subject to the appeal was passed. ie the assessment order in this case.

Appeal Details

RSA Number 22025614 RSA 2017
Assessee PAN ABVPT8784A
Bench Surat
Appeal Number ITA 220/SRT/2017
Duration Of Justice 1 year(s) 15 day(s)
Appellant Nilay Kirtibhai Tailor, Surat
Respondent Income Tax Officer, Ward -1(3)(3), Surat
Appeal Type Income Tax Appeal
Pronouncement Date 22-11-2018
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 22-11-2018
Assessment Year 2008-2009
Appeal Filed On 07-11-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCHES SURAT BEFORE SHRI AMARJIT SINGH ACCOUNTANT MEMBER AND MS.MADHUMITA ROY JUDICIAL MEMBER ITA NO.220 /SRT/2017 ASSTT.YEAR 2008-09 NILAY KIRIT BHAI TAILOR 27 SHANKAR NAGAR SOCIETY NR. HOMEOPOTHIC COLLEGE BHATAR SURAT PAN : ABVPT 8784 A VS. ITO WARD-1(3)(3) SURAT. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI MEHUL R. SHAH AR REVENUE : MS.ANUP AMA SINGLA SR.DR / DATE OF HEARING : 19/11/2018 / DATE OF PRONOUNCEMENT: 22 /11/2018 / O R D E R PER AMARJIT SINGH ACCOUNTANT MEMBER: THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF LD.CIT(A)-2 SURAT DATED 8.9.2017 PASSED FOR THE ASSTT.YEAR 2008-09. 2. SOLE GROUND RAISED BY THE ASSESSEE IN APPEAL IS AGAINST ORDER OF THE LD.CIT(A) IN DIRECTING THE AO TO REOPEN THE ASSESSMENT PROCEEDINGS IN THE CASE OF THE ASSESSEE FOR THE ASSTT.YEAR 2008-09 IN VIEW OF PROVISIONS OF SECTION 150(1) OF THE INCOME TAX ACT 1961. ITA NO.220/SRT/2017 - 2- 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME DURING THE YEAR UNDER CONSIDERATION. AS PER AIR INFORMATION RECEIVED BY THE AO THE ASSESSEE HAS MADE PAYMENT OF RS.13 38 600/- AGAINST CREDIT CARD IN ABN AMRO BANK (NOW RBS BANK) AND ALSO DEPOSITED CASH OF RS.8 01 485/- IN KOTAK MAHINDRA BANK. THEREFORE THE CASE OF THE ASSESSEE WAS REOPENED UNDER SECTION 147 OF THE ACT BY ISSUANCE NOTICE UNDER SECTION 148 OF THE ACT ON 26.3;.20125. ON A QUERY BY THE AO ABOUT THE AFORESAID PAYMENT MADE AGAINST THE CREDIT CARD BILLS THE ASSESSEE HAS EXPLAINED THAT CREDIT LIMIT OF CARD WAS LIMITED TO RS.40 000/- ONLY. DURING THE YEAR HE HAD SPENT ONLY RS.37 258/-. HE HAS ALSO FURNISHED COPY OF CREDIT CARD ALONG WITH TRANSACTION STATEMENT FROM 1.4.2007 TO 31.3.2008 DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE AO. ON THE BASIS OF THE BANK STATEMENT ASSESSEE HAS STATED THAT IT CLEARLY DEMONSTRATED THAT HE HAS NOT DEPOSITED THE AFORESAID AMOUNT OF RS.13 38 600/- IN CREDIT CARD DURING THE YEAR. REGARDING DEPOSIT OF CASH IN KOTAK MAHINDRA BANK THE AO HAS RECEIVED A REPLY FROM KOTAK MAHINDRA BANK THAT THE ASSESSEE WAS NOT HAVING ANY BANK ACCOUNT IN THE SAID BANK. ON FURTHER VERIFICATION BY WAY OF A LETTER ISSUED UNDER SECTION 133(6) OF THE ACT TO THE RBS BANK THE AO HAS COME TO KNOW THAT AS PER BANK STATEMENT FOR THE PERIOD 12.4.2007 TO 31.3.2008 THERE WAS CASH/CHEQUE DEPOSITS OF RS.24 82 178.50 IN THE ACCOUNT OF THE ASSESSEE. ON PERUSAL OF THE BANK ACCOUNT THE AO HAS NOTICED THAT DEPOSITS WERE MADE IN THE SB ACCOUNT NO.1251351 WITH RBS BANK LTD. ON VARIOUS DATES. THE AO ALSO FOUND THAT THIS AMOUNT WAS UNDISCLOSED IT WAS NOT REFLECTED IN THE BOOKS OF ACCOUNTS. THE AO HAS FURTHER STATED THAT ON 27.1.2016 THE ASSESSEE HAS SUBMITTED REVISED RETURN ITA NO.220/SRT/2017 - 3- AND COMPUTATION OF INCOME AND DECLARED THAT CASH/CHEQUES DEPOSITED N THE BANK ACCOUNTS PERTAINED TO HIS TRADING CONCERN AND HE HAS DECLARED 5% NET PROFIT ON THE TOTAL TURNOVER AS REPORTED U/S.44AF OF THE ACT. THE AO HAS NOT ACCEPTED THE CONTENTIONS OF THE ASSESSEE AND STATED THAT THIS BANKING TRANSACTION CANNOT BE CONSIDERED AS PART OF HIS RETAIL BUSINESS OF SHARE TRADING UNDER SECTION 44AF AS CLAIMED BY THE ASSESSEE. THE AO WAS OF THE VIEW THAT THESE TRANSACTIONS ARE RELATED TO ACCOUNT WITH RBS BANK LTD. WHICH WAS NOT DECLARED IN THE RETURN AND THE CONTENTIONS OF THE ASSESSEE THAT TRANSACTIONS IN THE BANK ACCOUNTS WERE PART OF HIS TRANSACTION OF RETAIL BUSINESS AND THEREFORE TO OFFER NET PROFIT WAS MISPLACED AND INCORRECT. THEREFORE THE AO HAS TREATED TOTAL DEPOSITS AMOUNTING TO RS.24 82 178/- AS UNEXPLAINED DEPOSITS UNDER SECTION 68 OF THE ACT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ASSESSEE FILED APPEAL BEFORE LD.CIT(A). THE LD.CIT(A) HAS HELD THAT IN VIEW OF DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF MOHAMMAD JUNEID DADANI 355 ITR 172 THE ADDITION MADE BY THE AO OF RS.24 82 1278/- ON ACCOUNT OF UNDISCLOSED TRANSACTION IN THE RBS BANK ACCOUNT WAS ERRONEOUS AS THE BASIS OF INFORMATION FOR REOPENING DID NOT EXIT. HOWEVER THE LD.CIT(A) HAS DIRECTED THE AO UNDER SECTION 150(1) OF THE ACT TO REOPEN THE CASE FOR THE ASSTT.YEAR 2008-09 AND TAX THE UNDISCLOSED INCOME OF THE ASSESSEE PERTAINED TO THE TRANSACTION IN THE UNDISCLOSED ACCOUNT WITH THE RBS BANK LTD. THE RELEVANT PART OF THE CIT(A) READS AS UNDER: 6.1.2. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APPELLANT AND PERUSED THE ASSESSMENT ORDER GROUND NO.L : ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT THE LEARNED ASSESSING OFFICER HAS ERRED IN REOPENING ASSESSMENT U/S 147 BY ITA NO.220/SRT/2017 - 4- ISSUING NOTICE U/S 148 OF THE IT ACT 1961. GROUND NO.2 : ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT THE LEARNED ASSESSING OFFICER HAS' ERRED IN MAKING ADDITIONS OF RS.24 82 178.50P BEING UNEXPLAINED CASH CREDITS U/S 68 OF THE IT ACT. 6.1.3. IN THIS CASE ON THE BASIS OF AIR INFORMATION THE AO FOUND THAT THE APPELLANT HAD MADE PAYMENT OF RS.1338600/- AGAINST CREDIT CARDBILLS TO RBS BANK AND DEPOSITED IN CASH RS.801485/- IN KOTAK MAHINDRA BANK. THE APPELLANT HAD NOT FILED ANY RETURN OF INCOME DURING THE YEAR. THE AO REOPENED THE CASE U/S 147 OF THE ACT AND ISSUED NOTICE U/S 148 OF THE ACT ON 26/03/2015. THE APPELLANT WAS PROVIDED THE COPY OF THE REASON FOR REOPENING ON 17/08/2015. THE APPELLANT ALSO SUBMITTED BEFORE THE A.O. THAT HE HAD A CREDIT CARD WITH THE CREDIT LIMIT OF RS.40000/- ONLY AND DURING THE YEAR HE HAD SPENT ONLY RS.37258/- SO THE INFORMATION THAT HE HAD MADE A PAYMENT OF RS. 1338600/- IN THE CREDIT CARD WAS INCORRECT. THE AO MADE ENQUIRIES FROM KOTAK MAHINDRA BANK AND FOUND THAT THE APPELLANT DID NOT HAVE ANY BANK ACCOUNT IN THE SAID BANK. BUT THE ENQUIRIES FROM THE RBS IT WAS FOUND THAT THE APPELLANT WAS MAINTAINING A BANK ACCOUNT IN THE RBS (PREVIOUSLY ABN AMRO BANK) WHICH WAS HAVING CASH / CHEQUE DEPOSITS OF RS.2482178/- EXCLUDING REVERSE ENTRIES. IN THE RETURN OF INCOME FILED BY THE APPELLANT THE APPELLANT HAS DISCLOSED INCOME OF RS.81630/- UNDER THE HEAD INCOME FROM OTHER SOURCES AND NO BUSINESS INCOME WAS SHOWN IN THE RETURN OF INCOME. THE AO FOUND THAT THE APPELLANT ON 27/01/2016 FILED A REVISED RETURN AND COMPUTATION OF INCOME SHOWING THE CASH AND CHEQUE DEPOSITED IN RBS BANK AS PART OF HIS TRADING INCOME DECLARING A PROFIT OF 5% 44AF ON THE TOTAL TURNOVER AS PER THE BANK ACCOUNT TRANSACTIONS. THE AO MADE AN ADDITION OF RS.2482178/- U/S 68 OF THE ACT TO THE INCOME OF THE APPELLANT. 6.1.4. THE APPELLANT SUBMITTED THAT HE AND HIS FAMILY MEMBERS DID NOT HAVE ANY BANK ACCOUNT WITH KOTAK MAHINDRA BANK AND THE CREDIT LIMIT IN THE CARD ISSUED BY RBS WAS ONLY RS.40000/- ON WHICH HE HAS SPENT ONLY RS.37258/- DURING THE YEAR AND THEREFORE THE AIR INFORMATION WAS INCORRECT. THE CONTENTION OF THE APPELLANT WAS VERIFIED BY THE AO DURING THE ASSESSMENT PROCEEDINGS AND FOUND ITA NO.220/SRT/2017 - 5- CORRECT AND THEREFORE NO ADDITION WAS MADE ON THESE TWO GROUNDS. IT WAS CONTENDED BY THE APPELLANT THAT THE AO HAD REOPENED THE CASE ON THE BASIS OF THE AIR INFORMATION PERTAINING TO CASH DEPOSITS IN KOTAK MAHINDRA BANK AND CREDIT CARD PAYMENTS WHICH WAS FACTUALLY INCORRECT INFORMATION. THE REASONS FOR REOPENING WAS NOT CORRECT AND THEREFORE THE ENTIRE REOPENING PROCEEDINGS AND THE SUBSEQUENT ADDITION MADE UNDER A DIFFERENT HEAD IS ERRONEOUS. HE RELIED ON THE DECISION OF THE JURISDICTIONAL GUJARAT HIGH COURT IN THE CASE OF MOHAMMAD JUNEID DADANI 355 ITR 172 WHEREIN IT WAS HELD ONCE THE FOUNDATION OF THE REOPENING IS FOUND TO BE INCORRECT ANY FURTHER PROCEEDINGS IN RESPECT TO SUCH ASSESSMENT WAS NOT PERMISSIBLE. 6.1.5. ON THE PERUSAL OF THE DETAILS IT IS OBSERVED THAT THE AO FOUND DURING THE ASSESSMENT PROCEEDINGS THAT THE REASONS FOR REOPENING ON THE BASIS OF AIR INFORMATION WAS INCORRECT AS THE APPELLANT WAS NOT HAVING ANY BANK ACCOUNT IN KOTAK MAHINDRA BANK AND NEITHER HE HAD MADE PAYMENT OF RS.1338600/- FOR THE CREDIT CARD. THE AO MADE NO ADDITION ON THIS ACCOUNT. DURING THE COURSE OF THE INVESTIGATIONS THE AO FOUND THAT THE APPELLANT WAS HAVING A BANK ACCOUNT WITH RBS WHICH WAS HAVING A DEPOSITS OF RS.2482178/- AND THIS BANK ACCOUNT WAS NOT DISCLOSED BY THE APPELLANT IN THE RETURN OF INCOME. ON BEING CONFRONTED ON THIS ISSUE THE APPELLANT FILED A REVISED RETURN AND COMPUTATION OF INCOME ON 27/01/2016. THE AO HAD ISSUED THE NOTICE U/S 148 OF THE ACT ON 26/03/2015 WHICH WAS DULY SERVED ON THE APPELLANT ON 30/03/2015. THE APPELLANT DID NOT FURNISH ANY RETURN OF INCOME IN COMPLIANCE TO THE NOTICE U/S 148 OF THE ACT WITHIN THE PRESCRIBED TIME PERIOD OF 30 DAYS. NO RETURN OF INCOME WAS FILED BY THE APPELLANT IN COMPLIANCE TO THE NOTICE U/S 148 TILL 30/04/2015. THE APPELLANT FILED A RETURN OF INCOME 10/08/2015 DECLARING TOTAL INCOME OF RS.81630/-. IT IS A SETTLED LAW THAT ANY RETURN FILED AFTER THE PRESCRIBED TIME PERIOD AS PER THE NOTICE U/S 148 OF THE ACT SUCH RETURN IS A NON-EST RETURN. 6.1.6. THE CONTENTION OF THE APPELLANT THAT THE AO HAD NO JURISDICTION TO TRAVEL BEYOND THE REASONS FOR REOPENING THE ASSESSMENT AS HELD BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF MOHAMMAD JUNEID DADANI (SUPRA) IS FOUND TO BE CORRECT. THE HON'BLE COURT HELD - 'EXPLANATION ITA NO.220/SRT/2017 - 6- (3) SECTION 147 OF THE ACT HOWEVER BY NO STRETCH OF IMAGINATION CAN BE CONSTRUED AS TO PROVIDE THAT IF THE REASON ON WHICH THE ASSESSMENT IS REOPENED FAILS THE ASSESSING OFFICER STILL CAN PROCEED TO ASSESS SOME OTHER INCOME WHICH ACCORDING TO HIM HAD ESCAPED ASSESSMENT AND WHICH CAME TO HIS LIGHT DURING THE COURSE OF THE ASSESSMENT. FOR ASSUMING JURISDICTION TO FRAME AN ASSESSMENT UNDER SECTION 147 OF THE ACT WHAT IS ESSENTIAL IS A VALID REOPENING OF A PREVIOUSLY CLOSED ASSESSMENT. IF THE VERY FOUNDATION OF THE REOPENING IS KNOCKED OUT ANY FURTHER PROCEEDING IN RESPECT TO SUCH ASSESSMENT NATURALLY WOULD NOT SURVIVE.' 6.1.7. IN VIEW OF THE ABOVE DECISION OF THE JURISDICTIONAL HIGH COURT THE ADDITION MADE BY THE AO OF RS.2482178.50P/- ON ACCOUNT OF UNDISCLOSED TRANSACTIONS IN THE RBS BANK ACCOUNT IS ERRONEOUS AS A BASIS OF THE INFORMATION FOR REOPENING DOES NOT EXIST. THE AO WAS FREE TO ASSESS ANY INCOME WHICH HAD ESCAPED ASSESSMENT IN ADDITION TO THE TRANSACTIONS WHICH WERE BASIS FOR THE REOPENING. HENCE THE ADDITION MADE BY THE AO IS DELETED IN VIEW OF THE DECISION OF THE HON'BLE HIGH COURT IN THE CASE OF MOHAMMAD JUNEID DADANI (SUPRA). 6.1.8. THE AO DURING THE COURSE OF INVESTIGATIONS FOUND THAT THE APPELLANT WAS HAVING UNDISCLOSED SAVING BANK ACCOUNT NO. 1251351 IN ROYAL BANK OF SCOTLAND NV (PREVIOUSLY ABN AMRO BANK NV) IN WHICH THE TOTAL DEPOSITS ARE OF RS.32 96 128 WHICH INCLUDED CASH DEPOSITS OF RS.19 85 100 AND CHEQUE DEPOSITS OF RS.1 75 000/- MADE DURING AY 2008-09. THE INFORMATION REGARDING TRANSACTIONS WHICH WAS GATHERED BY THE AO FROM THE RBS PERTAINING TO THE UNDISCLOSED BANK ACCOUNT IN WHICH THE APPELLANT HAD MADE CASH / CHEQUE DEPOSITS OF RS.2482178/- SHOWS THAT THESE TRANSACTIONS WERE NEVER DISCLOSED BY THE APPELLANT IN HIS RETURN OF INCOME. THESE TRANSACTIONS HAVE NOT BEEN BROUGHT TO TAX AS THE APPELLANT HAD NOT FILED ANY RETURN OF INCOME DURING THE YEAR. THE AO IS BEING DIRECTED U/S 150(1) OF THE ACT TO REOPEN THE CASE FOR AY 2008-09 UNDER THE PROVISIONS OF THE ACT FOR TAXING THE UNDISCLOSED INCOME OF THE APPELLANT PERTAINING TO THE TRANSACTIONS IN THE UNDISCLOSED BANK ACCOUNT WITH RBS BANK. ITA NO.220/SRT/2017 - 7- 4. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US THE ASSESSEE HAS CONTENDED THAT THE LD.CIT(A) HAS ERRED IN DIRECTING THE AO TO REOPEN THE ASSESSMENT. HE FURTHER SUBMITTED THAT DIRECTION ISSUED BY THE LD.CIT(A) UNDER SECTION 150(1) WAS AGAINST THE PROVISIONS OF SECTION 150(2) OF THE ACT AND LIABLE TO BE QUASHED. THE LD.COUNSEL FOR THE ASSESSEE ALSO PLACED RELIANCE ON THE DECISION HONBLE BOMBAY HIGH COURT IN THE CASE OF LOTUS INVESTMENTS LTD. VS. ACIT 162 TAXMANN 241 (BOM). ON THE OTHER HAND THE LD.DR HAS RELIED ON THE ORDERS OF THE LD.CIT(A). 5. WE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IT IS NOTICED THAT THE LD.CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE. HOWEVER HE HAS DIRECTED THE AO UNDER SECTION 150(1) OF THE ACT TO REOPEN THE CASE FOR SAME ASSESSMENT YEAR 2008-09 TO ASSESS THE INCOME OF RS.24 82 178/- WHICH WAS FOUND DEPOSITED IN THE SAVING ACCOUNT OF THE ASSESSEE MAINTAINED WITH RBS BANK LTD. HOWEVER IT IS NOTICED THAT THE BASIS ON WHICH THE CASE OF THE ASSESSEE WAS REOPENED PERTAINED TO THE ISSUE OF PAYMENT AGAINST CREDIT CARD AND CASH DEPOSITS IN KOTAK MAHINDRA BANK WHICH WAS NOT ESTABLISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE THE REASONS FOR REOPENING WAS NOT FOUND TO BE CORRECT AND IT WAS ESTABLISHED THAT ENTIRE REOPENING OF THE ASSESSMENT AND SUBSEQUENT ADDITION MADE WAS ERRONEOUS. IN THIS CONNECTION WE ALSO NOTICE THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF LOTUS INVESTMENT LTD. (SUPRA) HAS DECIDED THE ISSUE ON IDENTICAL ISSUE AND FACTS IN FAVOUR OF THE ASSESSEE. THE RELEVANT PART OF THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT READS AS UNDER: ITA NO.220/SRT/2017 - 8- 35. APART FROM THE ABOVE SECTION 150(1) OF THE ACT PROVIDES THAT THE POWER TO ISSUE NOTICE UNDER SECTION 148 OF THE ACT IN CONSEQUENCE OF OR GIVING EFFECT TO ANY FINDING OR DIRECTION OF THE APPELLATE/REVISIONAL AUTHORITY OR THE COURT IS SUBJECT TO THE PROVISION CONTAINED IN SECTION 150(2) OF THE ACT. SECTION 150(2) PROVIDES THAT DIRECTIONS UNDER SECTION 150(1) OF THE ACT CANNOT BE GIVEN BY THE APPELLATE/REVISIONAL AUTHORITY OR THE COURT IF ON THE DATE ON WHICH THE ORDER IMPUGNED IN THE APPEAL WAS PASSED THE REASSESSMENT PROCEEDINGS HAD BECOME TIME-BARRED. IN OTHER WORDS AS PER SECTION 150(2) OF THE ACT THE CIT(A) COULD GIVE DIRECTIONS FOR REASSESSMENT ONLY IN RESPECT OF THOSE ASSESSMENT YEARS IN RESPECT OF WHICH REASSESSMENT PROCEEDINGS COULD BE INITIATED ON THE DATE OF PASSING OF THE BLOCK ASSESSMENT ORDER ON 29-9-2000. IN THE PRESENT CASE ON THE DATE OF PASSING OF THE BLOCK ASSESSMENT ORDER ON 29-9-2000 THE ASSESSMENTS FOR MOST OF THE ASSESSMENT YEARS HAD BECOME TIME-BARRED AND THEREFORE EVEN IF THE CIT(A) WERE TO GIVE ANY DIRECTIONS THE SAME WOULD BE HIT BY SECTION 150(2) OF THE ACT. IN ANY EVENT IN THE PRESENT CASE THE CIT(A) HAS NOT GIVEN ANY FINDING OR DIRECTION FOR REOPENING OF THE ASSESSMENTS AND THEREFORE THE PROVISIONS OF SECTION 150 OF THE ACT ARE NOT APPLICABLE CONSEQUENTLY THE IMPUGNED NOTICES WHICH ARE TIME-BARRED UNDER SECTION 149 OF THE ACT ARE WITHOUT JURISDICTION AND ARE LIABLE TO BE QUASHED AND SET ASIDE. ONCE IT IS HELD THAT THE CIT(A) HAS NOT GIVEN ANY FINDING OR DIRECTION FOR REOPENING THE ASSESSMENT THE BENEFIT OF EXPLANATION 2 TO SECTION 153 OF THE ACT WOULD NOT BE AVAILABLE TO THE REVENUE. 6. IN THIS CONNECTION WE ALSO REFER TO THE PROVISIONS OF SECTIONS 150(1) AND 150(2) WHICH READ AS UNDER: 150. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 149 THE NOTICE UNDER SECTION 148 MAY BE ISSUED AT ANY TIME FOR THE PURPOSE OF MAKING AN ASSESSMENT OR REASSESSMENT OR RECOMPUTATION IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED BY ANY AUTHORITY IN ANY PROCEEDING UNDER THIS ACT BY WAY OF APPEAL REFERENCE OR REVISION OR BY A COURT IN ANY PROCEEDING UNDER ANY OTHER LAW. ITA NO.220/SRT/2017 - 9- (2) THE PROVISIONS OF SUB-SECTION (1) SHALL NOT APPLY IN ANY CASE WHERE ANY SUCH ASSESSMENT REASSESSMENT OR RECOMPUTATION AS IS REFERRED TO IN THAT SUB-SECTION RELATES TO AN ASSESSMENT YEAR IN RESPECT OF WHICH AN ASSESSMENT REASSESSMENT OR RECOMPUTATION COULD NOT HAVE BEEN MADE AT THE TIME THE ORDER WHICH WAS THE SUBJECT-MATTER OF THE APPEAL REFERENCE OR REVISION AS THE CASE MAY BE WAS MADE BY REASON OF ANY OTHER PROVISION LIMITING THE TIME WITHIN WHICH ANY ACTION FOR ASSESSMENT REASSESSMENT OR RECOMPUTATION MAY BE TAKEN. 7. A PERUSAL OF THE ABOVE PROVISIONS OF LAW AND THE JUDGMENT OF HONBLE BOMBAY HIGH COURT CITED SUPRA WE ARE OF THE VIEW THAT SUB-SECTION (2) OF SECTION 150 MAKES IT CLEAR THAT RE-ASSESSMENT PERMISSION UNDER SECTION 150(1) OF THE ACT WOULD NOT BE AVAILABLE TO THE DEPARTMENT WHEN THE PERIOD OF LIMITATION FOR SUCH ASSESSMENT OR RE-ASSESSMENT HAS EXPIRED AT THE TIME WHEN ORDER WHICH WAS SUBJECT TO THE APPEAL WAS PASSED. HEARING IN THE CASE OF THE ASSESSEE ASSESSMENT ORDER UNDER SECTION 143(3) R.W.S. 147 WAS PASSED ON 22.3.2016 AND HENCE DIRECTIONS UNDER SECTION 150(1) WAS AGAINST THE PROVISIONS OF SECTION 150(2) OF THE ACT. THEREFORE IN THE LIGHT OF THE ABOVE FACTS AND LEGAL POSITION ELABORATED IN THIS ORDER WE FIND THAT THE LD.CIT(A) IS NOT JUSTIFIED IN HIS DECISION TO DIRECT THE AO UNDER SECTION 150(1) TO REOPEN THE CASES OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. ACCORDINGLY GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 22 ND NOVEMBER 2018 AT SURAT. SD/- SD/- (MS.MADHUMITA ROY) JUDICIAL MEMBER (AMARJIT SINGH) ACCOUNTANT MEMBER SURAT; DATED /11/2018