TMI Blog2004 (8) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... were issued to the above assessees which were served on 1st Sept., 1997 in response to which the returns were filed on 13th Oct., 1997. The first notice under s. 143(2) was issued on 24th March, 1999. In the course of assessment proceedings, the AO passed an order under s. 142(2A) on 16th April, 1999 in the case of M.N. Dugad directing the assessee to get the books of account audited by a chartered accountant Shri S.B. Sabne, Vas ant Apartments, 106/2 Erandwane, Pune, who was nominated by the CIT. The audit report was to be submitted within 4 months of the receipt of this letter. Thereafter, the assessee vide letter 20th April, 1999 sought clarification from the AO as to whether the order of the AO under s. 142(2A) was restricted to the case of M.N. Dugad or would also apply to other asses sees of this group. The AO was also requested to provide the list of all the assessees in whose case the compulsory audit was required. The AO vide letter dt. 21st April, 1999 informed Mr. M.N. Dugad that compulsory audit under s. 142(2A) was necessary in respect of other assessees. The list of the assessees was also supplied to the assessee. It appears from the record that separate orders were p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order under s. 158BC(c) of the IT Act for the block asst. yrs. 1988-89 to 1998-99. 2. This appellant is one of the assessees in the group of Shri Manikchand N. Dugad. As observed in the case of Shri Manikchand N. Dugad in appeal No. PN/CIT(A)-l/DC, Cir. 2(1)/ITA 433/2000-2001, dt. 30th March, 2001 for the block asst. yrs. 1988-89 to 1998-99, there are complicated transactions involving verification of documents, witnesses and reconciliation of figures of transaction between the appellant and either Shri M.N. Dugad or his Benamidars. Under these circumstances the block assessment made in the case of Shri M.N. Dugad has been set aside for the purpose of proper verification and proper opportunity to the appellant. In view of this, it is necessary to set aside this assessment as well with the direction that the AO shall grant final opportunity to the appellant to properly represent the case. The assessment may be completed afresh. 3. The assessment is set aside and for statistical purpose, the appeal is treated as allowed." Aggrieved by the aforesaid order, both, the assessees as well as the Revenue are in appeal before the Tribunal. 6. In pursuance of the directions of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made on 16th April, 1999 according to which the audit report was to be submitted by 18th Aug., 1999 and the time available for making the assessment was 106 days on the date of reference. (b) Even assuming that writ petition is deemed to be considered to have been filed by the appellants, still, the assessments got time-barred. He has given various workings to show that the assessments framed on 28th July, 2000 were beyond the prescribed time. (c) The period of limitation specified by the statute cannot be extended by any Court. (d) The period prescribed under s. 142(2A) can be extended only by the AO and not any other person or Court. Therefore, the Addl. Solicitor General, who appeared before the High Court on behalf of the Revenue could not make any statement so as to enable the AO to make the assessments beyond the period of limitation. (e) The period of limitation cannot be extended by mutual consent. (f) The jurisdiction cannot be conferred by consent. (g) That notice under s. 143(2) was issued beyond the period of limitation prescribed in the proviso, hence, assessments were null and void being without jurisdiction. In support of the above contentions, he re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the Addl. Solicitor General incorporated in the order of the High Court and pleaded that the period of limitation was extended on the basis of such statement. 10. In the rejoinder, Shri Pathak submitted that there was no question of restoring the matter back to the file of the CIT(A) inasmuch as two opportunities were given for adjudicating such matter particularly when such grounds of appeal were contested in the course of hearing. He also drew our attention to the order of the CIT(A) wherein this issue was adjudicated by him by holding that by implication, CIT(A) had rejected the stand of the assessee in respect of time-barring plea. Hence, it cannot be said that the matter was not considered by the CIT(A). He also relied on the decision of the Tribunal in the case of Asstt. CIT vs. Anima Investment Ltd. (2000) 68 TTJ (Del)(TM) 1 : (2000) 73 ITD 125 (Del)(TM). He again emphasised that the Hon'ble Bombay High Court has specifically held that writ petition was considered only in the case of Shri M.N. Dugad and, therefore, the said order cannot be applied to the present appellants. 11. Rival submissions of the parties have been considered carefully in the light of the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search case has been specified in s. 158BE. The relevant portion, for disposal of the present appeals is contained in cl. (b) of sub-s. (1) of S. 158BE which reads as under: "158BE(1). The order under S. 158BE shall be passed- (a) .... (b) within two years from the end of the month in which the last of the authorisations for search under S. 132 or for requisition under S. 132A, as the case may be, was executed in cases where a search is initiated or books of account or other documents or any assets are requisitioned on or after the 1st day of January, 1997." In the present case, the search was conducted on 26th June, 1997 and last authorisation under s. 132 was executed on 16th July, 1997. Thus, the assessments were required to be completed within a period of 2 years from the end of July, 1997 i.e., by 31st July, 1999. However, the AO ordered for special audit under s. 142(2A) in the case of M.N. Dugad on 16th April, 1999 and the assessee was required to submit the audit report within a period of 4 months from the date of service of such order. The order under S. 142(2A) was served on M.N. Dugad on 19th April, 1999. Thus, the audit report was required to be submitted by 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by all the assessees, it was necessary for the AO to make the order in issue. We do not think that it is appropriate that pending the hearing and final disposal of the writ petition, the work of special audit directed to the assessing authority should be stayed. 2. Hence, ad interim order in terms of prayer cl. (c) made on 20th Sept., 1999, is hereby vacated. 3. We also notice that the writ petition claims to be a writ petition in respect of several assessees whose cases were before the assessing authority. In our view, in a matter like this it is necessary to file separate writ petition for each assessee. This writ petition shall be treated as one filed by M.N. Dugad. Liberty to the other assessees to take out separate writ petitions, if need be. 4. Dr. Chandrachud, learned Addl. Solicitor General, makes a statement that the special audit ordered by the assessing authority would be completed within a period of six (6) months from today, certified. Issuance of copy expedited. 29th Nov., 1999 Sd/-" The perusal of the above order states in clear terms that this writ petition shall be treated as one filed by Mr. M.N. Dugad only. In view of this categorical order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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