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TMI Blog2021 (10) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders of the Learned Commissioner of Income Tax (Appeals)-1, Ludhiana [(in short the 'Ld. CIT(A)] all dated 25.03.2013 relating to assessment years 2003-04 to 2005-06 respectively, passed u/s. 250(6) of the of the Income Tax Act, 1961 (hereinafter referred to as 'Act'). It was common ground that identical issue was involved in all the above appeals, hence, the same were taken up together for hearing and are being decided by a common order for the sake of convenience. 2. Ld. Counsel for the assessee pointed out that identical grounds had been raised in all the appeals which read as under: 1. That the Ld. Commissioner of Income Tax (Appeals) gravely erred in upholding assessment made u/s. 153A read with section 143(3) which was otherwise time barred in as much as the very reference u/s. 142(2A) was unwarranted against law and facts on the file. 2. The assessment framed on the basis of audit report u/s. 142(2A) deserves to be quashed in as much as the special auditor has travelled beyond the provisions of section 142(2A) for the purpose of conducting the audit. 3. Referring to the above, the Ld. Counsel for the assessee stated that in all the three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Name of the assessee Astt. Year 1. M/s Chet Ram Ravi Kumar ,101 New Grain Market ,Muktsar 2002-02 to 2007-08 2. Sh. Ravi Kumar Bansal c/o above. 2002-03 to 2008-09 3. M/s Sunder Mal Sat Pal , 101, New Grain Market , Muktsar 2002-03 to 2008-09 The purpose of the special audit is:- i) To translate the books found from Mahajani to English. ii) To bifurcate the transactions recorded in the kacha cash book so as to clarify whether they pertain to M/s. Chet Ram Ravi Kumar or Sunder Mal Sat Pal. iii) To bifurcate the accounted transaction from unaccounted transaction to arrive at a definite conclusion and also reconcile the regular books of accounts with these seized books. iv) Reconciliation of the promotes with the regular books of account to bifurcate the accounted for pronotes from the unaccounted ones and to work out the interest income earned on these advances and also to check the source of investment made in these advances, on yearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (Firm) Vs. CIT (2008) 169 Taxman 328 (SC). 3. During the course of hearing before us it was pointed out at bar to the Ld. DR that the Hon'ble Delhi High Court, in the case of Consulting Engineering Services Private Limited Vs. ITAT Another in WP(C)7734/2017 dated 01.09.2017, on being seized with the identical issue whether the challenge to the order u/s. 142(2A) could be raised before the ITAT in view of the decision of the Hon'ble Apex Court in Sahara India (Firm) Vs. CIT (supra), had held that the observation made in that decision was in the peculiar facts of that case and was not meant to be a general observation applicable across the board for all cases. That at para 9 of the order the Hon'ble High Court had categorically held that the ITAT ought to have entertained the additional grounds pertaining to the validity of reference made u/s. 142(2A) of the Act. 4. The Ld. DR, after going through the aforesaid order, fairly agreed that the issue had been considered as above by the Hon'ble High Court in the aforesaid decision. 5. In view of the above, we do not find any merit in the Miscellaneous Applications filed by the Revenue since the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while making the reference, which was a prerequisite for making reference for special audit. 10. The Revenue has been unable to controvert the aforestated facts. The issue therefore stands squarely covered by the order of the ITAT in the case of Sunder Mal Satpal (supra). 11. The Revenues contention questioning the jurisdiction of the ITAT to adjudicate the validity of the reference for special audit u/s. 142(2A) of the Act, admittedly also stands rejected in the said case, in the order of the ITAT passed in miscellaneous Application filed by the Revenue. The Ld. CIT(DR) has sought to distinguish the same by relying on the order of the apex court in the case of Rajesh Kumar Vs. DCIT (2008)169 Taxman 328(SC). 12. We do not find any merit in the same. As noted above this contention of the Revenue raised by way of a Miscellaneous application in the case of Sunder Mal Satpal (supra) already stands dismissed by the ITAT. All the same, addressing the specific reference by the Ld. DR to the decision of the apex court in the case of Rajesh Kumar (supra), we find that, taking note of the said decision this argument of the Revenue has been dismissed by the ITAT in various decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered opinion, for coming to such a conclusion, we can examine whether the order passed u/s. 142(2A) of the Act is in accordance with law or not. It is true that the order passed u/s. 142(2A) of the Act is not appealable but when an assessment order is challenged, then the different aspects, which are integral to the process and ultimate completion of the amount can be challenged in appeal and since the ground before us is challenged for assessment being barred by limitation, we are well within our rights to consider all material aspects which were considered while framing the assessment order u/s. 143(3) of the Act. 13. Further as noted in the order passed by the coordinate bench of ITAT in Miscellaneous Application filed in the case of Sunder Mal Satpal (supra) the Hon'ble Delhi High Court in the case of Consulting Engineering Services Private Limited Vs. ITAT Another in WP(C)7734/2017 dated 01.09.2017, has categorically held that it is well within the jurisdiction of the ITAT to entertain the grounds relating to validity of reference to special audit, after noting that the observation to the contrary by the apex court in the case of Sahara India (supra) was specific t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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