TMI Blog2015 (12) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... For The Assessee : Sh. Ved Jain, CA For The Department : Sh. Ravi Jain, CIT(DR) ORDER PER INTURI RAMA RAO, A.M.: These cross appeals, filed by the assessee as well as by the Department, are directed against the order of CIT(A)-XXXII, Delhi, dated 26.03.2012 passed for the assessment year 2005-06. The assessee filed appeal in ITA No. 2237/Del/2012 and the Revenue filed appeal in ITA No. 2730/Del/2012. The assessee raised the following grounds of appeal in ITA No. 2237/Del/2012: i. The grounds of appeal mentioned hereunder are without prejudice to one another. ii. The learned Commissioner of Income-tax (Appeals)-XXXII, New Delhi [hereinafter referred as CIT(A) ] erred on facts as also in law in confirming addition of ₹ 3,80,00,000/- being unsecured loans received from the following concerns. The addition may kindly be deleted: Sr. No. Name of the Creditors Amount (Rs.) 01 M/s Baba Kishore Enterprises 85,00,000 02 M/s G.R.S. Co. 1,00,00,000 03 M/s Mahadev E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal. 3. First, we shall take up the appeal filed by the assessee company since the issues raised in the appeal relate to the validity of the assessment. During the course of hearing, the assessee raised some additional grounds, which read as under: Additional Grounds of appeal: 9. On the facts and circumstances of the case, the learned Assessing Officer (AO) has erred in making reference for special audit under Section 142(2A) in a mechanical way without application of mind and without there being any complexity in the accounts. Accordingly the order passed under Section 142(2A) is bad in the law and in consequence the assessment framed is vitiated and bad in law. 10. On the facts and circumstances of the case, the AO was not justified, both on facts and in law, in asking the appellant to get its accounts audited under Section 142(2A) of the Act. 11. On the facts and circumstanced of the case, the extension granted by the AO in carrying out the audit under Section 142(2A) is against the statutory provision of the Act, as applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant time, the Assessing Officer did not have the suo motu power to extend the due date for filing the special audit report under section 142A of the Act, therefore, he submitted that the assessment was barred by limitation. In this connection, he relied upon the decision of this Tribunal in the case of M/s Bishan Saroop Ram Kishan Agro Pvt. Ltd. Vs. DCIT, in ITA No. 3413/Del/2008 (A.Y. 1999-2000) along with other appeals, dated 18th September, 2009 and this decision was confirmed by the Hon ble Delhi High Court vide order dated 27th May, 2011, in ITA No. 1775/2010 (CIT Vs. Bishan Saroop Ram Kishan Agro Pvt. Ltd.) along with other appeals. Copies of the above orders have been filed before us. 8. On the other hand, the ld. CIT(DR) placed reliance on the orders of the lower authorities. 9. We heard the rival submission and perused the material on record. The issue for adjudication in this case is whether the assessment is barred by limitation under Section 153(1B) of the Act or not. In this case, admittedly the Assessing Officer extended the time for submission of the special audit report suo motu. At the relevant point of time, the Assessing Officer did not have the power of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns made by the A.O. vide his order dated 7.03.2007, 17.04.2007 and 17.05.2007 are without jurisdiction and consequently such extensions as made vide those letters/orders cannot be said to extend the limitation. The exclusion as provided in the Exp. (ii) to Section 153B would have to be read. to be 90 days being a period between 12.12.2006 to 12.03.2007. Consequently, it would have to be held that the time period u/s 142(2A) is controlled by the the provisions of Section 142(2C) and the exclusion provided in explanation (ii) to Section 158B was for the period from 12.12.2006 to 12.03.2007 and consequently the claim of the assessee that the assessment is barred by limitation, would have to be upheld and we do so. 10. The above order was confirmed by the Hon ble Delhi High Court in ITA No. 1775 of 2010, vide order dated 27th May, 2011 as under: 19. It was to rationalize the said proviso that the word suo motu came to be added by way of amendment with effect from 1st April 2008. As per Clause 27.3 of the Circular dated 27th March, 2009 while the Assessing Officer shall continue to have the power to grant extension on an application made in this behalf by the Assessee, he co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective and was to be applicable with effect from 1st April, 2008 only. Accordingly, we answer Question No.2 against the revenue. 11. The facts in the cases mentioned supra are identical with the facts of the present case. Even in the present case, there was no evidence on record suggesting that the assesse sought suo motu extension of time for submission of audit report under Section 142(2A) of the Act. It is clear from the record that the Assessing Officer had suo motu extended time for furnishing the audit report under Section 142A of the Act. Respectfully following the ratio laid down by the Hon ble Jurisdictional High Court, we hold that the assessment framed in this case is also barred by limitation and does not survive in the eye of law. Accordingly, the assessment order is quashed, as such. 12. In the appeal filed by the assessee i.e. ITA No. 2237/Del/2012, we have quashed the assessment order as barred by limitation, hence, the issue raised by the Revenue in appeal no. 2730/Del/2012 does not survive and therefore, we deem it not necessary to adjudicate the grounds of appeal raised by the Revenue. Accordingly, the appeal filed by the Revenue is dismissed, as such. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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