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2016 (5) TMI 802 - DELHI HIGH COURT

2016 (5) TMI 802 - DELHI HIGH COURT - [2016] 387 ITR 568 - Power of AO for extension of time for filing of special audit report u/s 142(2A) - relationship of auditor (CA) with the assessee - Held that:- the Court is unable to agree with the counsel for the Revenue that in the present case the ITAT exceeded its jurisdiction in examining the question whether the AO was justified in extending the time for the auditor nominated under Section 142 (2A) to submit the audit report. The Court accordingly .....

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be in a relationship of an agent of the Assessee or in any other capacity except as a nominee of the Commissioner. It is perhaps for this reason the proviso to sub-Section 2C of Section 142 specifically states that the extension of time for submitting the audit report can be made by the AO “on an application made in this behalf by the Assessee” If the legislative intent was to permit the application to be made by the auditor nominated by the Commissioner, that would have been expressly provided .....

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r the Appellant : Mr. Rahul Chaudhary, Senior Standing Counsel with Mr. Raghvendra Singh, Advocate For the Respondent : Mr. Ved Jain and Mr. Pranjal Srivastava, Advocates ORDER 1. This appeal by the Revenue is directed against the order dated 14th October 2015 passed by the Income Tax Appellate Tribunal ( ITAT ) in ITA Nos. 2237/Del/2012 & 2730/Del/2012 for the Assessment Year ( AY ) 2005-06. 2. The questions sought to be urged by the Revenue in this appeal read as under: 1. Whether the ITAT .....

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Whether the AO is competent to extend the period for filing the audit report on the expressed request of the nominated auditor under proviso to section 142(2C) read with section 142(2A) of the Act? 3. As far as the first question is concerned, learned counsel for the Revenue has placed reliance on the decisions of the Supreme Court in National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC) and this Court in M. B. Lal v. Commissioner of Income Tax (2005) 279 ITR 298 (Del). The learned coun .....

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e to file the audit report. The Court is unable to agree. The question of extension of such time went to the root of the matter since the question of assessment being barred by limitation hinged on this issue and could have been raised by the Assessee itself before the ITAT. 4. Secondly, in the present case it is seen that the question that was addressed by the ITAT, which is evident from the impugned order, was inter alia whether the assessment order passed by the AO under Section 153A of the A .....

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arred by limitation, it has to be necessarily examined not only by the CIT(A) but consequently by the ITAT as well. 5. The observations of the Supreme Court in National Thermal Power (supra) suggests that the powers of the ITAT are wide enough to even consider a point which may not have been urged before the CIT (A) as long as the said question requires to be examined in the interest of justice. In that view of the matter, the Court is unable to agree with the counsel for the Revenue that in the .....

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time prior to 1st April 2008. That power was subsequently provided by amending the said proviso by the Finance Act, 2008. Whether the said amendment was retrospective in nature was considered by this Court in its decision in CIT v. Bishan Saroop Ram Kishan Agro Pvt. Ltd. (2011) 203 Taxman 326 (Del). The question was answered by holding that the amendment is prospective. 7. Mr. Rahul Chaudhary, learned Senior Standing counsel for the Revenue thus urges that even if the AO in the present case did .....

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