2016 (7) TMI 320 - AT - Income Tax

Validity of order u/s 142(2A) - special audit - whether assessment is barred by limitation which is based upon the audit report - Held that - Despite the appellant seeking the basis on which directions for special audit is proposed to be issued, the learned CIT dispensed with that precondition and granted approval which itself vitiates the whole process of granting approval. It is thus apparent that neither the AO nor the learned CIT disclosed the basis of approval after the objection as raised by the appellant to the show cause notice u/s 142(2A) of the Act and hence the order dated 9.12.2011 is a vitiated order. In view of the above discussion and conclusion we hold that directions dated 9.12.2011 by the learned Addl. CIT, Range-18, New Delhi for special audit u/s 142(2A) of the Act were illegal, invalid and not in accordance with law and thus the assessment so made is barred by limitation and is thus quashed as such. - Decided in favour of assessee

Issues Involved:
1. Barred by Limitation
2. Complexity and Special Audit
3. Capital Gains on Sale of Shares
4. Re-characterization of Income
5. Enhancement of Sale Consideration
6. Deemed Dividend
7. Waiver of Loan
8. Difference in Balances
9. Disallowance of Advertisement Expenses
10. Short Deduction of TDS
11. Levy of Interest under Sections 234A, 234B, 234C, and 234D
12. Revenue's Appeal Grounds

Detailed Analysis:

1. Barred by Limitation:
The appellant contended that the assessment order dated 1.8.2012 u/s 143(3) was barred by limitation, as the limitation period for framing an assessment expired on 31.12.2011. The directions for special audit u/s 142(2A) were issued on 8.12.2011, 23 days prior to the limitation period, which the appellant argued was an attempt to extend the period of limitation without satisfying the statutory provisions. The Tribunal found that the directions for special audit were issued without proper jurisdiction and the assessment order was thus barred by limitation.

2. Complexity and Special Audit:
The appellant argued that the pre-conditions for invoking section 142(2A) were not satisfied and the directions for special audit were issued to extend the limitation period. The Tribunal noted that the order for special audit was a non-speaking order and did not provide specific reasons for considering the accounts complex. The Tribunal held that the order u/s 142(2A) was invalid as it lacked proper jurisdiction and reasons, and thus the assessment was barred by limitation.

3. Capital Gains on Sale of Shares:
The appellant contended that the addition of ?1750,89,48,710/- representing alleged capital gain on the sale of shares was beyond the scope of section 45 read with section 48 of the Act. The Tribunal did not address this issue as the assessment order was quashed on the ground of being barred by limitation.

4. Re-characterization of Income:
The appellant argued against the re-characterization of income on disinvestment shares to M/s Tata Realty and Infrastructure Ltd. as business income instead of capital gain. The Tribunal did not adjudicate on this issue due to the quashing of the assessment order.

5. Enhancement of Sale Consideration:
The appellant challenged the addition of ?252,83,28,670/- by enhancement of sale consideration on the sale of land rights. The Tribunal did not address this issue as the assessment order was quashed.

6. Deemed Dividend:
The appellant contested the addition of ?120 crores representing alleged deemed dividend under section 2(22)(e) of the Act. The Tribunal did not adjudicate on this issue due to the quashing of the assessment order.

7. Waiver of Loan:
The appellant argued that the addition of ?19,45,51,374/- representing the waiver of loan by M/s Fortis Mutual Fund as business income was incorrect. The Tribunal did not address this issue as the assessment order was quashed.

8. Difference in Balances:
The appellant contested the addition of ?92,116/- representing the purported difference between the balance of M/s Prime Construction as per the books of the appellant company and as per the ledger of account furnished by M/s Prime Construction. The Tribunal did not adjudicate on this issue due to the quashing of the assessment order.

9. Disallowance of Advertisement Expenses:
The appellant challenged the disallowance of ?3,42,556/- out of advertisement expenses. The Tribunal did not address this issue as the assessment order was quashed.

10. Short Deduction of TDS:
The appellant argued against the disallowance of ?66,43,500/- representing alleged short deduction of TDS on service tax. The Tribunal did not adjudicate on this issue due to the quashing of the assessment order.

11. Levy of Interest under Sections 234A, 234B, 234C, and 234D:
The appellant contested the levy of interest under sections 234A, 234B, 234C, and 234D. The Tribunal did not address this issue as the assessment order was quashed.

12. Revenue's Appeal Grounds:
The revenue raised several grounds in their appeal, including the deletion of additions related to capital gain on buyback of shares, interest-free loans to subsidiaries, deduction u/s 80IB(10), variation of rates of sale of flats, forfeiture of advance paid for purchase of hotels, disallowance u/s 14A, deduction u/s 24, disallowance of processing charges on loans, and disallowance of proportionate interest expenses. The Tribunal did not adjudicate on these issues due to the quashing of the assessment order.

Conclusion:
The Tribunal quashed the assessment order dated 1.8.2012 u/s 143(3) on the ground that it was barred by limitation. Consequently, the issues raised in both the assessee's and revenue's appeals were not adjudicated.

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