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TMI Blog2024 (6) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... mited vs. Addl. CIT ITA No. 5180 of 2013, whereas the factual matrix in the present case are distinguishable and Ld. CIT (A) erred in identifying the ratio/principles laid down by the Hon'ble ITAT in the case of Unitech Limited?" iii. "Whether on the facts and in law, Ld. CIT (A) has erred in considering only the technical issue leaving other substantial issues on which addition has been made?" 3. In CO No. 51/Del/2023, the assessee has raised the following grounds: "1. That on the facts and circumstances of the case, the Ld. CIT-(A) has passed the order as per the provision of the Act and hence the appeal filed by the department is not maintainable. 1.1 That on the facts and circumstances of the case, the assessment order passed u/s 143(3) r.w.s 144C(3) of the Act is time barred by limitation and is void ab-initio."- NOT PRESSED 4. The assessee is a Limited company, engaged in trading and manufacturing of Fast-Moving Consumer Goods (FMCG). The assessee had filed its return of income on 28.11.2014 declaring total income at Rs. 83,53,21,350/-. Subsequently, a revised return was filed on 27.11.2015 declaring total income at Rs. 138,49,25,610/-. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner or] Chief Commissioner or [Principal Commissioner or] Commissioner] in this behalf and to furnish a report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed and such other particulars as the [Assessing] Officer may require: [Provided that the Assessing Officer shall not direct the assessee to get the accounts so audited unless the assessee has been given a reasonable opportunity of being heard]." 8. It was argued by the ld. AR that the statute demands, the satisfaction to be framed by the AO and approved by the Commissioner. It is further seen that in terms of Section 142(2C) of the Act, it is the AO who has the jurisdiction/power to extend the period of special audit. The provisions of Section 142(2C) of the Act reads as under: "Every report under sub-section (2A) shall be furnished by the assessee to the Assessing Officer within such period as may be specified by the Assessing Officer: Provided that the [Assessing] Officer may, suo motu, or on an application made in this behalf by the assessee and for any good and sufficient reason, extend the said period by such further period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in some other manner. It was so held in the following decisions: (i) CIT Vs. Naveen Khanna (dated 18.11.2009 in ITA No. 21/2009 (DHC) (ii) State of Bihar Vs. J.A.C. Saldanna & Ors. AIR (1980) SC 326 (iii) State of Gujarat Vs. Shantilal Mangaldas, AIR (1969) SCN 634. 8. Thus, if authority is given expressly by affirmative words upon a defined condition, the expression of that condition excludes the doing of the Act authorized under other circumstances than those as defined. It is also established principle of law that if a particular authority has been designated to record his/her satisfaction on any particular issue, then it US that authority alone who should apply his/her independent mind to record his/her satisfaction and further mandatory condition is that the satisfaction recorded should be "independent" and not "borrowed" or "dictated" satisfaction. Law in this regard is now sell-settled. In Sheo Narain Jaiswal & Ors. Vs. ITO, 176 ITR 35 (Pat.), it was held: "Where the Assessing Officer does not himself exercise his jurisdiction under Section 147 but merely acts at the behest of any superior authority, it must be held that assumption of jurisdiction was bad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, on existence of which, this decision has been left over to be taken by the concerned Assessing Officer. 17. In the present case, the extension has been given by CIT and not by the Assessing Officer, vide letter dtd. 13.04.2010, as under:- "In this connection you are hereby informed that the Commissioner of Income Tax (Central)-II, New Delhi vide his office letter F.No. CIT/(C)II/10-11/24 dated 12/04/2010 has granted extension of 60 days to the special auditors M/s. Sanjay Satpal & Associates, Chartered Accountants, for furnishing the audit report u/s. 142 (2A) in your case." 18. We have carefully gone through the entire events and the verbatim of the letters. We also tried to dwell whether the intention of the Assessing Officer is to "extend the period" or conveying the "approval of the CIT". While it may be an administrative phenomenon to intimate, inform the CIT about the fact of the special audit party appointed seeking extension, but statutorily that power is vested with the Assessing Officer. On going through the established judgment, it cannot be disputed that the statutory powers vested with one specified authority cannot be exercised by another authority unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accorded approval for extension of period by 90 days for special audit u/s 142(2A) in the above mentioned case for AY 2014-15." 14. The ld. CIT (A) wholly relied on the judgment of ITAT in the case of Soul Space Projects Ltd. (supra) wherein it was held that a power which has been given to a specified authority has to be discharged only by him. Substitution of that officer/authority by any other officer, may be of higher rank, cannot validate the said order/ action. Thus, the ld. CIT (A) held that in terms of Section 142(2C) of the Act, the extension of time period for furnishing the Special Audit Report has to be specified by the AO and not by the CIT. The ld. CIT (A) held in the present case, it is clear from the letters dated 27.03.2018 addressed to the AO by the Addl. CIT and letter dated 27.03.2018 addressed by the AO to the assessee, that the approval for granting extension of the time limit for conducting special audit was sought from and granted by the Pr. CIT only. The AO has not extended the said time limit suo-moto. The ld. CIT (A) has also examined, the assessee's own case for AY 201213 wherein vide order dated 21.09.2020 in Appeal No. CIT(A), Delhi -7/10162/2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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