2022 (12) TMI 1410 - AT - Income Tax

Special Audit u/s 142(2A) - assessee is against appointment of Special Auditor u/s. 142(2A) - HELD THAT - Facts on records clearly indicate that the AO without even examining the accounts of the assessee has formed an opinion regarding nature and complexity of the accounts of the assessee. This opinion has been formed by the AO in a very casual manner. Without examining the books of account the AO can have no understanding of the nature and complexity of the accounts of the assessee. We are unable to impress upon ourselves to subscribe to the view of AO to hold nature of accounts of the assessee as complex without even having a look at the books of assessee. Hon ble Apex Court in Sahara India 2008 (4) TMI 4 - SUPREME COURT has held that there has to be a genuine and honest attempt on the part of Assessing Officer to understand accounts of the assessee. The contention of the Revenue is that the assessee is non-co-operative and did not produce books under such circumstances AO could have resorted to any other relevant provision available under the Act to complete the assessment but reference to Special Audit. The satisfaction of the Assessing Officer in the instant case is at the outset shallow flawed and unsustainable. Whether the assessment u/s.143(3) r.w.s 153C of the Act is time barred? - In the instant case it is undisputed that seized documents were handed over to the AO on 17/11/2011. Therefore the assessment should have been completed on or before 31/03/2013 whereas the assessment order was passed on 14/11/2013 hence clearly beyond the period of limitation as specified u/s. 153B - The extended time for completing assessment would have been available to the AO if reference to Special Auditor was held to be valid. As a sequitur to our findings on reference to Special Auditor we hold the assessment order time barred ergo liable to be quashed.

Summary

Issues Involved:
1. Validity of the assessment order under section 143(3) read with section 153C of the Income Tax Act.
2. Legality of the appointment of the Special Auditor under section 142(2A) of the Income Tax Act.
3. Addition of amounts under sections 2(24)(iv) and 56(1) of the Income Tax Act based on foreign remittances and loose papers found during the search.
4. The assessment order being time-barred.

Issue-wise Detailed Analysis:

1. Validity of the Assessment Order under Section 143(3) read with Section 153C:
The assessee contended that the assessment order passed under section 143(3) read with section 153C was time-barred and violated the provisions of section 153 of the Income Tax Act, 1961. The documents were handed over to the Assessing Officer (AO) on 17.11.2011, thus the time limit for passing the assessment order was 31.03.2013. However, the assessment order was passed on 14.11.2013, which is beyond the period of limitation provided under law. The tribunal held that the assessment order was indeed time-barred and hence, without jurisdiction.

2. Legality of the Appointment of the Special Auditor under Section 142(2A):
The assessee argued that the appointment of the Special Auditor was not in accordance with the provisions of section 142(2A). The AO appointed the Special Auditor without examining the accounts of the assessee and without having regard to the nature and complexity of the accounts and the interests of Revenue, which are the twin conditions necessary for such an appointment. The tribunal noted that the AO formed an opinion regarding the complexity of the accounts merely based on bank statements and capital account details, without examining the books of account. Citing the Supreme Court's decision in Sahara India (Firm) vs. CIT, the tribunal emphasized that the AO must genuinely and honestly attempt to understand the accounts before dubbing them as complex. The tribunal found that the AO's opinion was formed in a casual manner and thus, the appointment of the Special Auditor was invalid.

3. Addition of Amounts under Sections 2(24)(iv) and 56(1):
The assessee contested the additions of Rs. 3,67,20,734 and Rs. 553.59 crores under sections 2(24)(iv) and 56(1) of the Act on account of foreign remittances and loose papers found during the search. The tribunal observed that the foundation for these additions was the Special Audit report, which itself was invalid as the Special Auditor did not examine the books of account. Consequently, the additions based on the flawed Special Audit report were unsustainable.

4. The Assessment Order Being Time-Barred:
The tribunal reiterated that the assessment order was time-barred as it was passed beyond the statutory time limit. The extended time for completing the assessment would have been available only if the reference to the Special Auditor was valid. Since the reference was held to be invalid, the assessment order was quashed as time-barred.

Conclusion:
The tribunal allowed the appeal by the assessee, quashing the assessment order on the grounds of it being time-barred and the invalidity of the appointment of the Special Auditor. The tribunal emphasized the necessity of a genuine attempt by the AO to understand the accounts before forming an opinion on their complexity and upheld the legal principles laid down by the Supreme Court in Sahara India (Firm) vs. CIT. The additions made under sections 2(24)(iv) and 56(1) were also set aside as they were based on the invalid Special Audit report.