2023 (12) TMI 776

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....gned order"] passed by the Income Tax Appellate Tribunal [in short, "Tribunal"]. These appeals concern the following Assessment Years (AYs): ITA No. AY ITA 465/2022 2005-06 ITA 466/2022 2004-05 ITA 455/2022 2006-07 ITA 469/2022 2007-08 ITA 470/2022 2008-09   2. ITA 455/2022 was admitted on 16.11.2022, while ITAs 465/2022, 466/2022, 469/2022 and 470/2022 were admitted on 21.11.2022. The following substantial questions of law were framed for consideration by this Court in all five appeals: "(A) Whether, in the present case, the Assessing Officer has granted extension of time under the proviso to Section 142(2C) of the Income Tax Act, 1961 (The Act')? (B) Whether the power of....

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....A) of the Income Tax Act, 1961 [in short, "Act"] for submission of the audit report was in consonance with the proviso appended to Section 142(2C) of the Act?" 4.2 Via order dated 11.07.2023, we inter alia noted the following: "The moot question which arises for consideration, both in ITA 455/2022 and the above-captioned appeals is: whether the Commissioner of Income Tax (GIT) could have extended the time for submission of audit report. The proviso to Section 142(20) of the Income Tax Act, 1961 [in short, "the Act"] refers to the Assessing Officer (AO)." 4.3 As is evident, the three questions of law framed in the instant appeals veer around the issue captured at the proceedings held on 11.07.2023. 5. Thus, having regard to....

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....not have abdicated that function and confined his role to only making a recommendation to the CIT. The CIT had no role in extending the timeframe as the AO was in seisin of the assessment proceedings. 21. As has been correctly submitted on behalf of the respondent/assessee, the decision taken to get an audit conducted under Section 142(2A) of the Act is a step in the process of assessment proceedings and, therefore, is clearly not an administrative power; as the appointment of a special auditor entails civil consequences. In this context, the following observations made in Rajesh Kumar's case are extracted hereafter: "24. If an assessee files a return the same is not presumed to be incorrect. When the assessing officer, ho....

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....ants Act, 1949." 22. We may note that the decision relied upon on behalf of the appellant/revenue in the matter of Yum Restaurant has been disapproved in Rajesh Kumar's case. Furthermore, the judgment in Rajesh Kumar's case has been reaffirmed by the Supreme Court in the Sahara India Firm case [See para 20], with some moderation with regard to the Court's exposition concerning the scope and impact of Section 136 of the Act. 23. Notwithstanding the observation made in this behalf, the Court in Sahara India has emphasized that because there are civil consequences, the distinction between quasi-judicial and administrative functions is obliterated. The following observations bear this out: "22. ... It is the ....