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Commissioner Of Income Tax Versus Shri Shyamal Sarkar

2015 (5) TMI 11 - CALCUTTA HIGH COURT

Time barred assessment u/s 158BE(1)(b) - time taken for special audit under section 142(2A) - Held that:- In this case the audit commenced on 13th November 2000 and was concluded on 24th April, 2001. Thus 163 days were consumed in the audit. Therefore, the period of 163 days has to be excluded from the period of limitation. It is not also in dispute that the delay is of 150 days under Section 158BE2 (b). If the period of audit comprising of 163 days is to be excluded, the natural consequence wil .....

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On plain reading of the above section it is evident that the A.O. before exercising power u/s.142 (2A) should objectively consider the material available with him and reach a bona fide conclusion/opinion that special audit u/s.142(2A) is essential in view of complexity of accounts coupled with interest of Revenue. Before us, no such document could be produced by the Ld. Departmental Representative whereby the A.O. has formed such opinion in terms of Sec.142(2A), as stated above. In the letter is .....

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order u/s. 142(2A) by the A.O.. The A.O. has only forwarded the administrative approval of the C.I.T. vide his letter dated 20.09.2000 to the Auditor Sri P. C. Maskara. Thirdly, in the letter dated 20.09.2000 written by the A.O. to the auditor there is no mentioned about the time within which audit report is to be submitted. As per clause (ii) of Explanation I of below Sec.158BE (2), what is to be excluded from the period of limitation is the time given to the Auditor to conduct the audit. If t .....

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search u/s. 132 was executed. Such period of limitation can be extended only if the conditions prescribed in various clauses of Explanation I below Sec. 158BE(2) are satisfied. It was contended by the Revenue that the conditions prescribed in clause (ii) of Explanation I below Sec. 158BE(2) are satisfied i.e. the accounts of the assessee were got audited u/s.142(2A). We have already examined this contention of the Revenue and we have noticed that there is no order for getting the accounts audite .....

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he assessment order is passed by the A.O. on 28.01.2002, which is clearly barred by limitation. Therefore, the assessment order being barred by limitation is annulled. Aggrieved by the order of the learned Tribunal, the revenue has come up in appeal. The following question of law was suggested;- a) Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is correct in holding that the assessment made on 28.1.2002 was time barred in terms of section 158BE(1)(b) .....

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to the Auditor? It is not in dispute that the assessment should have been completed on or before 31 August, 2001, which would be within a period of two years, as required under section 158BE (2)(b). It is also not in dispute that the period of two years shall correspondingly be extended by the time which was consumed in carrying out the special audit under Explanation (1) (ii) of section 158BE. In this case the audit commenced on 13th November 2000 and was concluded on 24th April, 2001. Thus 16 .....

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ver passed. Therefore, the period consumed by audit cannot be excluded. He also relied upon the views expressed by the Tribunal quoted above. We have not been impressed by this submission. The fact that the audit was in fact made is ample proof of the fact that an order for audit was also passed without which the audit could not have taken place. There is a presumption in law that all official and judicial acts were regularly performed. The presumption is reinforced by the fact that it is an adm .....

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