Late Shri T. Krishnamurthy L/R by Smt. N. Shashikala vs The Deputy Commissioner Of Income Tax, (INV)

K.L. Manjunath, J.—The assessee has come up in this appeal being aggrieved by the order passed by the Income Tax Appellate Tribunal, Bangalore Bench in IT(SS)A No. 78/Bang/2002 dated 8.3.2005 for the block assessment year 1986-87 to 97-98 raising the following substantial questions of law:

a) Whether the Tribunal is justified in law in not adjudicating the grounds of limitation which goes to the core of the issue on the facts and circumstances of the case?

b) Whether the Tribunal is justified in law in not holding that the order of assessment is barred by limitation in terms of Section 158BE of the Act under the facts and circumstances of the case?

c) Whether the Prohibitory order passed u/s 132(3) of the Act, will result in continuation of the search proceedings especially, when there is no practical difficulty in making any seizure and the order passed u/s 132(3) is invalid and illegal?

d) Whether the Panchanama drawn ultimately by the Authorised Officer stating that, the search proceedings have come to a close is to be treated as a valid panchanama for determining the limitation u/s 158BE(1) and that, the purpose for clamping the prohibitory orders passed by the Authorised Officer cannot be looked into for purposes of determining the date of execution of the warrant?

e) Whether, under the facts and circumstances of the case, should the Tribunal have held that the term "within one year from the end of the period in which last of the authorisation for search u/s 132 was executed" has to be taken to mean the execution of the last valid panchanama irrespective of whether the Prohibitory order imposed by the authorised Officer is valid or not?

f) Whether the Tribunal should have held that the search comes to a close only, when the Authorised Officer prepares a panchanama stating that the search proceedings have come to a close?

We have heard the learned Counsel for the parties,

The assessee aggrieved by the order of the Commissioner of Income Tax (Appeals) and the Assessing Officer, had preferred an appeal before the Income Tax Appellate Tribunal. The Tribunal has allowed the appeal of the assessee in-part and remanded the matter to adjudicate the matter afresh by the Assessing Officer. While remanding the matter, the Tribunal did not consider the question of law of limitation raised by the assessee herein. Therefore, though the appellant has succeeded on other points in getting an order of remand, has filed this appeal before this Court on the ground that the appeal of the assessee should have been allowed in toto considering the question of limitation as the reopening of the assessment was barred by limitation, if the Assessing Officer has considered the last Panchnama drawn pursuant to the last order of warrant To support his case, he has relied upon the Judgment of this Court in Commissioner of Income Tax and Another Vs. T.S. Chandrashekar through LRs., . Relying upon this Judgment, the learned Counsel for the assessee contends that the Tribunal has committed a serious error in not considering the question of limitation though the same was raised by the assessee.

Per contra, the learned Counsel for the revenue contends considering the date of seizure, the Assessing Officer was justified in holding that the reopening was well within time.

We have perused the order passed by the Tribunal. The Tribunal has only stated in its order that the assessee has raised the question of limitation. But without answering the said question has remanded the matter on other questions. Therefore, we are of the view that whenever a question of limitation was raised by the assessee, it was incumbent upon the Tribunal to decide the same at the first instance and thereafter it was for the Tribunal to consider the remaining questions as the question of limitation would go to the root of the matter.

During the course of arguments, it is brought to our notice that after the remand, the Assessing Officer has also passed an order, which order has been challenged by the assessee and the same is pending consideration.

Now the question to be considered by us is whether the reopening of the block assessment period was well within time or not Since the Tribunal has not given any finding, though such a question was raised, we are of the view that the matter has to be remanded to the Tribunal to consider the questions of law based on the facts of the present case.

Accordingly, without answering the substantial questions of law framed herein, we allow this appeal-in-part. The order of the Tribunal is set aside. The matter is remanded to the Tribunal only to consider whether the order of assessment was within time or not. All questions are kept open in regard to the question of limitation. It is made clear that we have remanded the matter to the Tribunal only to consider the question of limitation.