TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 366
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.... Hon'ble High Court and the Hon'ble High Court directed the Tribunal to admit the additional ground and adjudicate upon the same. The operative part of the Hon'ble High Court order reads as under: "9. In the considered view of the Court, the ITAT ought to have permitted the petitioner to raise the aforementioned additional ground and ought to have decided the said additional ground on its merits in accordance with law." 4. Pursuant to the directions of the Hon'ble High Court [supra], the representatives of both the sides were heard at length and case records carefully perused. 5. Briefly stated, the facts of the case are that the assessee filed its return of income on 30.09.2008, which was subsequently revised on 02.07.2009 and finally on 31.03.2010. The return was selected for scrutiny assessment and accordingly, statutory notices were issued and served upon the assessee. As per the provisions of section 153(1) of the Act, the time period for completion of assessment was two years from the end of the A.Y in which the income was first assessable or one year from the end of the F.Y. in which a return or revised return relating to the assessment is filed under su....
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....Kumar and Ors v CIT (supra). In this case the Hon'ble Court has held in para 34 that the order of assessment can be subject matter of an appeal; and not, a direction issued u/s 142(2A) of the Act. In this appeal there is no challenge to the directions u/s 142(2A) of the Act. The challenge is that order of assessment is barred by limitation which is a valid contention supported by the judgment of Hon'ble Supreme Court in the case of Sahara India (Firm) v CIT (supra). The challenging to the validity of order u/s 142(2A) of the Act is confined to the extent that order is barred by limitation and not to the extent of refunding the fees or any other consequence flowing out of the order u/s 142(2A) of the Act. Further, observation of Hon'ble Court that principles of natural justice are required to be complied with has also been reaffirmed in the case of Sahara India (Firm) (supra). The judgment of AT&T Communication Services India (P) Ltd. v CIT (supra) is on facts and has no application to the case of appellant company. Also the judgment in the case of DLF Ltd. v Addl. CIT (supra), has no application as hereto none of the contentions raised before us have been decided to the contrary. T....
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....der u/s.263 of the Act, has now been quashed and therefore in normal circumstances, the appeal would be decided by directing the CIT(A) to decide the appeal on merits. We have while deciding the appeal against the order u/s.263 of the Act, already held that the order of the AO was barred by limitation. Therefore there would no useful purpose in setting aside the order of CIT(A) and directing him to decide the appeal on merits afresh. We therefore allow the appeal of the Assessee against the order of the CIT(A) challenging the order of the AO, holding that the order of assessment is barred by time." 11. Our attention was further drawn to the judgment of the Hon'ble High Court of Gujarat in the case of Alidhara Texpro Engineering [P] Ltd 332 ITR 115 where a similar issue was considered by the Hon'ble High Court and the relevant findings read as under: "7. Thus, it becomes apparent that insofar as FFPL and GTPL are concerned, the Assessing Officer has not been able to even prima facie form an opinion that having regard to the nature and complexity of the accounts of the assessee and the interests of the revenue, is of the opinion that it is necessary so to do, he may, . . ....
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....in case of Farmsons Fashions (P.) Ltd. and Gokulanand Texturisers (P.) Ltd., the special audit was over and assessments have been framed on the same day as noted in case of Alidhara Texpro Engineering (P.) Ltd. and Alidhara Textool Engineering (P.) Ltd. but due to lack of jurisdiction at the threshold, as noted hereinbefore, the said two petitioners have been dealt with separately as a class and differentiated vis-a-vis the other two petitioners, namely Alidhara Texpro Engineering (P.) Ltd. and Alidhara Textool Engineering (P.) Ltd. 10. In the result, insofar as Special Civil Appln. Nos. 7252 of 2008 and 7253 of 2008 are concerned, show-cause notice dated 24-12-2007 and consequential order dated 31-12-2007 under section 142(2A) of the Act are hereby quashed and set aside, as being without jurisdiction. As a consequence, needless to state that, the auditors report dated 10-3-2008 and the consequential assessment orders dated 31-3-2008 also are bad in law and cannot survive. Accordingly Special Civil Appln. No. 7252 of 2008 and Special Civil Appln. No. 7253 of 2008 are allowed in the aforesaid terms. Rule made absolute." 12. It is the say of the ld. AR that similar view was take....
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....e 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 could also grant extension of his own when there are good and sufficient reasons for such extension. Thus, it is noticed that sub section (2C) before the amendment did not empower the Assessing Officer to extend the time for submissions of special audit report under sub Section (2A). Further, the power of extension of time for submission of special audit report is also subject to limitation of a period of 180 days from the date on which the directi....
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....sing Officer had suo motu extended time for furnishing the audit report under Section 142Aof 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." 13. The said order of the Tribunal has been upheld by the Hon'ble High Court in Tax Appeal No. 312/2016. 14. The ld. AR vehemently contended that the notice dated 21.11.2011 was issued by the Assessing Officer without any application of mind, in as much as, though the notice referred to the accounts of A.Y 2008-09 but, in fact, financial statement of A.Y 2009-10 were considered for special audit. 15. We have given a thoughtful consideration to the orders of the authorities below and have carefully perused the records qua the issue. It is true that noticed dated 21.11.2011 was for both the A.Ys i.e. 2008-09 and 2009-10. However, each A.Y is considered to be a separate unit and, therefore, for each A.Y, the Assessing Officer must bring out his case. A perusal of the said notice, which is exhibited at pages 67 to 70 ....