9911796707
TMI Blog2009 (11) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... al Clauses Act. Briefly stated, the assessee is a partnership firm which has been operating as licensed commission agent under the aegis of Agricultural Marketing Company under the Maharashtra Agricultural Produce Marketing Act. The assessee filed the return of income declaring total income of Rs. 17,682. Since the assessee was using Marathi software for the purchase and sales called Patti software, the Assessing Officer was of the opinion that the books of account require special audit and M/s. Malpani and Associates were appointed to conduct special audit in the assessee s case. The special auditor submitted its report on June 20, 2005 and on the basis of the special auditor s report the assessment has been finalised vide order dated August 29, 2005. The assessee contested the issue of jurisdiction as well as limitation of time for passing the order under section 143(3) before the Commissioner of Income-tax (Appeals). Even though the jurisdiction under section 127 was upheld by the Commissioner of Income-tax (Appeals) he has considered the order as time barred and accordingly he annulled the assessment by upholding the assessee s grounds. In order to appreciate the issue it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in the case of C. B. Gautam v. Union of India [1993] 199 ITR 530 (SC). 2.3 The appellant has further submitted that the special auditor was appointed on December 29, 2004, whereby they were required to submit their report in 120 days as a consequence of this, the date of completion of the block assessment was given as June 25, 2005. However on April 28, 2005, the last date for submission of the said disposal and extension was granted by the Assessing Officer to the special auditor before 60 days because of which according to the Assessing Officer, the date for completion of block assessment got extended to August 9, 2005. Since the last date for completion of the assessment as per the Assessing Officer was August 19, 2005 while the assessment was completed on August 29, 2005, therefore the assessment order was passed beyond the time limit prescribed as per Explanation 1 to section 153 of the Income-tax Act. Therefore, the assessment order passed by the Assessing Officer may be annulled. 2.4 I have carefully considered the reply given by the appellant and perused the assessment order. A remand report was called for from the Assessing Officer under section 250(4) of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g not furnished the report, the appellant cannot claim why the time period for furnishing of special audit report provided in the order of reference, no application of the assessee and for good and sufficient reason. The Assessing Officer however has no jurisdiction to extend the period beyond 180 days. Therefore the action of the Assessing Officer to extend time limit for furnishing audit report up to 180 days is valid and upheld. 2.7 The appellant has pointed out that the learned Assessing Officer has accepted the contention that the impugned order is barred by limitation. In paragraph 3.1 on page 3 of his remand report, he further stated as under: 3.1 Further, the extended date of submission of special audit report in the case of the assessee was 28th of June, 2005. Thus the time for assessment will get extended by 60 days. However, the order was passed on August 29, 2005. 2.8 It is respectfully submitted that vide order dated April 28, 2005 being No. DCIT : CC. 36/Special Audit/2005-6 learned Deputy Commissioner of Income-tax, Central Circle-36 had granted extension to the said special auditors on their request stating therein that further period of 60 days with effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Revenue is aggrieved that the Commissioner of Income-tax (Appeals) has not considered the provisions of section 10 of the General Clauses Act to hold that August 28 being Sunday and August 27 being Saturday the order was passed correctly on next working day, i.e., August 29, 2005. Accordingly the order is in time and they raised the grounds which are extracted above. The assessee raised four grounds in the crossobjection, inter alia, contesting that the Assessing Officer did not have jurisdiction to pass the assessment order and further, referring the matter to special audit under section 142(2A) was invalid and illegal and further, suo motto extending the time limit was also bad in law. The fourth ground is with reference to not providing adequate opportunity in presenting the case on the merits before the Commissioner of Income-tax (Appeals). The learned Departmental representative drawing our attention to various dates mentioned therein, said that the order was to be passed on August 27, 2005 according to the Commissioner of Income-tax (Appeals) and that day as well as the next day being Government holidays (Saturday and Sunday) the order was correctly passed on August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of 120 days to 180 days, unless application was made in this behalf by the assessee and in this case the assessee has not made any application and the Assessing Officer suo motu extended the time limit from originally fixed April 28, 2005 to further 60 days on an application from the special auditor and not by the assessee. She referred to the orders of the Assessing Officer originally issued ordering audit under section 142(2A), which was placed in the paper book at pages 11 and 12. According to this it was specified that as required under section 142(2A) it should be furnished within 120 days from the date on which the direction was received by the assessee. Since it was served on December 31, 2004 the period of 120 days expired on April 28, 2005. Then she referred to the order of the Assessing Officer dated April 28, 2005 placed at page 14 of the paper book which as addressed to M/s. Malpani and Associates, chartered accountants, with a copy to the assessee, which is as under : Sub : Special audit under section 142(2A) of the Income-tax Act in the case of M/s. Ramachandra Dashrath Hande and Co. for the block period April 1, 1996 to February 26, 2003 and for regular ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... generally before the date, in case the last date happened to be holiday and not after the date. The hon ble Supreme Court in the case of Commissioner of Customs v. Punjab Fibres Ltd. reported in 2008 (223) ELT 337 (SC) has opined that the High Court has no power to condone the delay in the presentation of the reference application under section 34H(1) of the 1944 Act, wherein it has been held that section 5 of the Limitation Act would not apply for condonation when specific time limit was provided. Even though the matter is presently referred to a Larger Bench in the case of Commissioner of Customs v. Hongo India P. Ltd. 2010 (236) ELT 417 (SC) the issue is whether the General Clauses Act will apply to the Income-tax Act as far as period of limitation is concerned. We are of the view that the Income-tax Act being a specific Act, the General Clauses Act may not generally apply to the limitation period. In view of that the ground raised by the Revenue that section 10 of the General Clauses Act will apply has no merit. Apart from the above, it is also seen that the Assessing Officer suo motu extended the period originally granted from April 28, 2005 with effect from April 30, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny request for rehearing by the assessee. The above decision will equally apply to the facts of this case. Since the assessee had not made any request for extension of time, the action of the Assessing Officer in extending the period by another 60 days was not according to the provisions of the law. If this period is excluded the order should have been passed on or before June 27, 2005 on which date the special audit report was received and the Assessing Officer had taken further time to complete it, which itself has barred by limitation as above. Looking at any angle, the order of the Assessing Officer passed on August 29, 2005 cannot be stated to be within the time limits provided under the Act. Accordingly, the order of the Commissioner of Income-tax (Appeals) on this issue is upheld. The Revenue s grounds are rejected. Since the Revenue appeal is dismissed the cross-objection raised by the assessee becomes academic in nature. Most of the grounds in the cross-objection were also dealt with along with the grounds of the Revenue. In the result, the Revenue s appeal is dismissed and the cross-objection by the assessee is considered as allowed for statistical purposes. The or ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
