TMI Blog2019 (1) TMI 1911X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 and thereafter, the time gets expired. However, it is the case of the Revenue Department that the time for filing of the audit report u/s 142 (2A) was extended by the Assessing Officer on 10.04.2012 for a period of 45 days which was expiring on 05.05.2012. Admittedly the order dated 20-04-2012, does not find mention in the assessment order and the Revenue Department neither established the service of the said extension order upon the assessee nor brought any of the records such as receipt and dispatch register and/or any document maintained for dispatch of the letter dated 20.04.2012 or otherwise in normal routine, by which the existence and validity of the said order could be established. We are in agreement with the stand of the Revenue department that even in the absence of application by the assessee, the Assessing Officer can extend the period for submission of special audit report, however in the instant case, order u/s 142(2A) was passed on 21st Dec. 2011 and time limit for filing of the audit report was fixed as 90 days from the receipt of the order which was expired on 21st March, 2012 and up to 9th April, 2012, nothing happened, neither the assessee filed an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was observed by the Assessing Officer that the assessee being a legal authority is under a statutory obligation to file its return of income/loss under the Income Tax Act, 1961. Moreover, section 44AA of the Act requires the assessee to maintain books of accounts as specified in the Act. Notice u/s 142(1) of the Act was also issued on 09.06.2010 fixing the hearing of the case for 15.06.2010 and the same was served upon the assessee and various information have been called for. The queries raised by the Assessing Officer were replied by the assessee. On finding the discrepancies in the account as reported by the A.G. J K after conducting inspection of the Assessing Authority, the Assessing Officer opined that in the interest of the Revenue the accounts of the assessee are required to be audited u/s 142(2A) of the Act and in pursuance to the requisite permission, M/s. K.B. Sharma Company, Chartered Accountants, 172P/3, Trikuta Nagar, Jammu was appointed as special auditor for the purpose of conducting special audit u/s 142(2A) of the Income Tax Act, 1961. On the basis of the special audit report as well as the documents submitted by the assessee and while considering the submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2 of the Act. Section 153(4) contains the provisions for time limitation of orders passed u/s 153A and 153B of the Act i.e. in case of search and requisition. The relevant extracts of provisions of section 153 (2) are reproduced as under: Section 153(2)No order of assessment, reassessment or recomputation shall be made u/s 147 after the expiry of one year from the end of the financial year in which the notice u/s 148 was served. Provided that where the notice u/s 148 was served on or after the 1st day of April, 1999 but before the 1st day of April, 2000, such assessment, reassessment or recomputation may be made at any time upto the 31st Day of March, 2002. Provided further that where the notice u/s 148 was served on or after the 1st day of April, 2005 (but before the 1st day of April, 2011), the provision of this sub-section shall have effect as if for the words one year , the word nine months had been substituted)' The Explanation-1 of section 153 is also relevant in deciding the issue under the relevant extract of explanation 1 to section 153, are reproduced as under: Explanation 1- In computing the period of limitation for the purposes of this section:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishing report by 20/05/2012 and absence of its mention in the assessment orde rby the AO. In the present case, the appellant was required to furnish the report on 20.05.2012 and accordingly the assessment was getting time barred on 19.07.2012 i.e., 60 days from 20.05.2012. The assessment order was passed on 06/07/2012 which was within the time limit prescribed under the Act. This ground of Appeal of the appellant is dismissed. 7. The main legal issue as raised and emphasized by the ld. AR of the assessee is that in these cases, as per office letter No. ITO-Ward3(3)/SGR/2011-12/1169 dated 21.12.2011, the AO directed the Assessee to get its accounts audited by special auditor and to furnish the Report within 90 days of the receipt of the order. The said report was duly acknowledged to be received vide acknowledgment No.09 dated 12.04.2012 by the Assessing Officer. However, the Assessing Officer has framed the assessment order on 06.07.2012 which is beyond the prescribed limit as specified in the relevant provisions of law applicable to the instant issue. The Ld. AR further submitted that the claim of the Revenue that vide order No. ITO-Ward- (2)/SGR/3841dated 20.04.2012, the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f time is just an procedural irregularity and does not make the Assessment order invalid. In support of its arguments, the Ld. DR also relied upon the order passed by the Kolkata High in CIT Vs. Sri Shyamal Sarkar in ITA No.815/2008 decided on 22nd April, 2015. 10. Having heard the parties at length and perused the material available on record. The legal issue which is ground No.1 as raised by the assessee pertains to the legality and validity of the assessment order, alleged to be passed beyond the time allowed as per the provisions of the act and being time barred, the same is void, infructuous and bad in law. Some chronological dates and events are important for adjudication of the issue under dispute. Sr. No. Date Particulars 1. 29.04.2010 Notice u/s 148 of the Act was issued to the assessee for the Asst. Year2007-08, 2008-09, 2009-10. 2. 31.12.2011 As per Sec.153(2), the assessment order was supposed to be passed within 9 months from the end of the financial year in which notice u/s 148 was served. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied,- [(i)] where such person has not made a return within the time allowed under sub- section (1) of section 139, to furnish a return of his income or the income of any other person in respect of which he is assessable under this Act, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed, or] [(ii)] to produce or cause to be produced, such accounts or documents as the Assessing Officer may require, or [(iii)] to furnish in writing and verified in the prescribed manners information in such form and on such points or matters (including a statement of all assets and liabilities of the assessee, whether included in the accounts or not) as the [Assessing] Officer may require: Provided that- (a) the previous approval of the 2 Deputy] Commissioner shall be obtained before requiring the assessee to furnish a statement of all assets and liabilities not included in the accounts; (b) the 3 Assessing] Officer shall not require the production of any accounts relating to a period more than three years prior to the previous year. (2) For the purpose of obtaining full information in respect of the income or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1- In computing the period of limitation for the purposes of this section:- (i) . (ii) (iia) (iii) the period commencing from the date on which the AO directs the assessee to get his accounts audited under sub-section 2(A) of section 142 and ending the last date on which the assessee is required to furnish a report of such audit under sub section. Shall be excluded: Provided that where immediately after the exclusion of the aforesaid time or period, the period of limitation referred to in sub section (1), [(1A), (1B)] [(2), (2A), and (4)] available to the AO for making an order of assessment, re-computation, as the case may be, is less than sixty days, such remaining period shall be extended to sixty days and the aforesaid period of limitation shall be deemed to be extended accordingly. 12. From the aforesaid provisions, it reflects that a report under subsection 2(A) of Section 142 is required to be furnished by the assessee to the Assessing Officer within such a period as may be specified by the Assessing Officer. The provisions further provides that the Assessing Officer may, suo motu or an application made in this behalf by the assessee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee was required to furnish report of the auditors within 90 days from the date of receipt of this letter. The said letter was duly served upon the assessee. X. In compliance to above directions, the assessee was required to file the audit report by or before 21-03-2012. However, no such report(s) was filed by the assessee up to date that. However, the time was suo moto extended by the undersigned on 10.04.2012 vide office letter no.10 by further 45 days which means that the assessee was allowed to file the audit report by extended time of 135 days and the said date was expiring on 05.05.2012. Finally the audit report under section 142(2A) of M/s. K.B. Sharma Company. Charter Accounts, 172P/3, Trikuta Nagar, Jammu for the assessment year under consideration was received on 08.05.2012 through registered post bearing No.SDA/Accts/1997 dated 31.03.2012 which is placed on record. It is the claim of the assessee that admittedly the directions u/s 142(2A) of the Act were issued on 21-12-2011, to furnish the audit report within 90 days from the date of receipt of the said directions. The said order was received by the assessee on 22nd December, 2012 and according to direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ward-2/SGR/2012-13/3841 by which the time period modified to 59 days instead of 45 days for filing of the audit report is not only forged, frivolous but in fact is a tainted document, made later on without serving the same to the appellant. In response to the allegations of the assessee, the Revenue Department also filed the affidavit of the process server Mr. Brij Mohan Vaid, contents of the same are reproduced herein below:- 1. That I was posted as Inspector of Income tax Range-3, Srinagar with additional charge as inspector of Income tax Ward 3(3) Srinagar, during the financial year 2012-13 2. That I have superannuated from government Service on 31-10-2015. 3. That letter bearing no. ITOW2/SGr/2012-13/38-41 dated has been served by me upon Srinagar Development Authority, Bemina, Srinagar on 21st April 2012 as is apparent from my report dated 21st April 2012 on the order issued by the then AO Ward 3(3) Srinagar, which was duly received by the receipt clerk of SDA Office, Bemina by affixing office stamp with date and signature. 4. That I acknowledge of having received the order on behalf of the then Joint Commissioner of Income tax, Range,-3 Srinagar at Srinagar offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process server claimed That I acknowledge of having received the order on behalf of the then Joint Commissioner of Income tax, Range,-3 Srinagar at Srinagar office is also seen from noting of the said order . But from the order dated 20-04-2012, it does not reflect that the same was delivered to and received by the said officers or its office. 17. We are also in agreement with the stand of the Revenue that as per the Indian Evidence Act, 1872 all the documents kept in official record are to be presumed as genuine. A rebuttable presumption is an assumption of fact accepted by the court until disproved. All presumptions can be characterized as rebuttable. It is an assumption that is made in law that will stand as a fact unless someone comes forward to contest it and prove otherwise. However where the facts are disputed and specific allegation has been made about any documents then the presumption will become rebuttable as in this case, the Asseeee has made specific allegation qua order dated 20-4- 2012 and also filed affidavit of its officers to controvert the claim of the revenue qua genuineness of the said order. Although various opportunities have been given to the Revenue D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to A.Y.2008-09. We further noted that the assessee's employee has acknowledged while signing almost each and every order sheets, however the order sheets of A.Y.2007-08, 2008-09 2009-10 which pertain order dated 20.04.2012, are not reflecting the acknowledgment or the signature of the assessee, which strengthen the claim of the assessee that the order dated 20.04.2012 seems to be fabricated in order to cover time limit for completion of the assessment. 18. It is admitted fact that order dated 20-04-2012 does not find mention in the Assessment order and even the same was never established to be served upon the Assessee and to the other addressees. The Revenue Department even after availing various opportunities did not file any authentic document to prove the genuineness of extension order dated 20-04-2012 and tried to evade its liability by submitting that due to floods of 2004 in Kashmir, all the records inter alia dispatch register etc. had got damaged, however every effort is being made to trace the evidence regarding the dispatch of the said letter but could not get success. We observe that although the Revenue Department has brought the assessment as well as CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time for filing of special audit report and/or not extended suo moto by the Assessing Officer, therefore, once the time limit gets expired by efflux of time, then the Assessing Officer is not empowered to extend it further, therefore on this reason also, the assessment order is void and cannot be acted upon. Hence under the peculiar facts and circumstances of the instant case and in view of considerations, deliberations and analyzations made above, the assessment order being void passed after the time prescribed under the law, consequently liable to be quashed and therefore quashed accordingly. 21. The assessee has also raised one more legal ground i.e. ground No.2 to the effect that the assessment order has been passed by the Assessing Officer who was not having the jurisdiction of the subject matter of the assessee s case as per CBDT guidelines. As we have already quashed the assessment order, therefore, it would not be appropriate to travel to other grounds which will amounts to academic exercise only. 22. In the result the appeals filed by the assessee stands allowed and by the Revenue Departments stands dismissed. Order pronounced in the open Court on 18.01.2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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