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Facts
The Revenue appealed against the order of the CIT(A) concerning AY 2014-15. The core of the dispute revolved around the validity of the assessment order, which was previously held by the ITAT to be void due to an invalid reference for a special audit and being barred by limitation.
Held
The Tribunal held that since the assessment order was previously declared void and barred by limitation, the Revenue's appeal against it was non-maintainable and infructuous. Consequently, all grounds of appeal were rendered academic and the appeal was dismissed.
Key Issues
The primary issue was whether the Revenue's appeal was maintainable when the assessment order it was based upon had already been declared void and barred by limitation by a previous ITAT order.
Sections Cited
28, 36(1)(iii), 142(2A), 143(3), 147, 148, 14A, 8D
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सुनवाई की तारीख/Date of Hearing : 01/04/2025 उदघोषणा की तारीख/Date of Pronouncement : 07/04/2025 आदेश/Order PER LALIET KUMAR, J.M:
This is an appeal filed by the Revenue against the order of the Ld. CIT(A)-1, Chandigarh pertaining to A.Y. 2014-15. 2. In the present appeal Revenue has raised the following grounds:
1. Whether on the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) is right in law in holding that the contribution of Rs.344,60,70,000/- to Metro Project is an allowable expenditure made wholly and exclusively for business purpose, ignoring the main object of the Assessee for which it has been constituted and transport service cannot be said to be akin to the Financing activities and developing the Industrial Estates etc. ?
2. Whether on the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) is right in law in holding that the contribution amounting to Rs. 84,71,00,000/ - in Eastern Express Project is an allowable expenditure made wholly and exclusively for the business purpose ignoring the main object of the assessee for which it has been constituted and transport service cannot be said to be akin to the Financing activities and developing the Industrial Estates etc. ? 3 a) Whether on the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) is right in law in deleting the disallowance made by the ssessing Officer towards grants / contribution o f R s . 78,11,91,600/- for Industrial & Infrastructure Development Projects/ Scheme, ignoring the aspect that the grants are directly related to the business of the Assessee Corporation and are to be considered for the purpose of taxability within the meaning of Section 28 of the Income Tax Act, 1961 under the head 'Profit and Gains from Business and Profession'? b) Whether on the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) is right in law in applying the principle of consistency without examining the issue independently on merits as each Assessment Year is an independent Assessment Year and non-non examination / examination of issue due to inadvertence or otherwise would neither preclude nor bar nor res-judicata for the Revenue to consider the issue on its own merits in the subsequent years. 4 a) Whether on the facts and in the circumstances of the case and in law, the Commissioner of Income Tax (Appeals) is justified in deleting the disallowance under Section 14A of the Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules, 1962 exceeding the exempt income by holding that disallowance under Rule 8D of the Income Tax Rules, 1962 cannot exceed the quantum of exempt income earned by the Assessee without appreciating the fact that applicability of Section 14A of the Income Tax Act, 1961 or Rule 8D of the Income Tax Rules, 1962 does not depend upon earning of income? b) Whether on the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) is right in law in limiting the disallowance made by the Assessing Officer under Section 14A of the Income Tax Act, 1961 only to the extent of income exempt under the provisions of the Income Tax Act, 1961,in contradistinction to the quantum of disallowance which may be made under Section 14A of the Income Tax Act, 196las per method prescribed under Rule 8D of the Income Tax Rules, 1962? c) Whether in the facts and circumstances of the case, and in law, the Commissioner of Income Tax (Appeals) has erred in ignoring that the legislative intent of Section 14A of the Income Tax Act, read with Rule 8D of the Income Tax Rules, 1962 does not depend upon the actual earning of exempt income, as has also been clarified by the CBDT vide Circular No. 5 of 2014 dated 11.02.2014? d) Whether on the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) is right in law in restricting the disallowance made under Section 14A of the Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules, to the extent of exempt income ignoring the scheme of Section 14A of the Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules, 1962 which does not provide any such restriction ? e) Whether on the facts and in the circumstances of the case and in law, the Commissioner of Income Tax (Appeals) has erred in restricting the disallowance under Section 14A of the Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules, 1962 ignoring the fact that no separate accounts had been maintained by the Assessee? 5 a) Whether on the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) is right in law in deleting the disallowance under Section 36(l)(iii) of the Income Tax Act, 1961 on account of interest related to diversion of funds for non business purposes by holding the issue as covered in view of decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax Vs. Reliance Industries Limited, reported as [2019] 4 1 0 ITR A 66 (SC) notwithstanding the aspect that the Assessee did not discharge the onus cast upon him to prove with cogent material /evidence that the funds diverted were for business consideration / commercial expediency within the meaning of Section 36(l)(iii) of the Income Tax Act, 1961? b) Whether on the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) grossly erred i n law, aiding the issue of disallowance under Section 36(l)(iii) of t h e Income Tax Act, 1961 is squarely covered in view of decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax Vs. Reliance Industries Limited, reported as [2019] 410 ITR 466 (SC) wherein the issue has been held to be a pure question of fact in view of the findings recorded by the Tribunal therein, whereas in the present case, the factual findings recorded by the Assessing Officer were converse to the findings noticed by the Hon'ble Supreme Court in the case of Reliance Industries (supra) and the Commissioner of Income Tax (Appeals) being a fad finding authority was under a statutory obligation to examine t h e issue independently on merits i n the context of the material / evidence available on record? c) Whether on the facts and in the circumstances of the case, the Commissioner of Income Tax (Appeals) is right in law in applying the findings of the decision rendered by the Hon’ble Supreme Cout in the case of Reliance Industries (supra) in the case of Assessee based on different facts ? 3. At the outset the Ld. AR has pointed out that the Tribunal vide its order dt. 26/10/2021 has decided the appeal of the Assessee in and it was held as under: 33. The only inference which can possibly be drawn in the facts of the present case as narrated above, is that the reference to special audit was made only to buy further time for completing the assessment, having been made at the fag end of the period for completion of assessment that too merely for obtaining further details and information and not because any complexity was noted in the accounts of the assessee. The reference to special audit, therefore we hold, is an invalid reference, contrary to law.
34. The assessment order passed therefore in the extended period, as a consequence of the invalid reference, we hold, is barred by limitation and hence void.
35. Since we have held the assessment order to be void on account of an invalid reference to special audit for the aforesaid reasons, the remaining arguments with respect to the same are not being dealt with by us. The additional ground of appeal
raised by the assessee is, therefore, allowed.
36. Both the parties were heard only on the additional ground raised which has been allowed by us and the assessment order passed has been held to be void. The remaining grounds, relating to merits of the case, therefore, are rendered academic in nature.
3.1 It was submitted by the Ld AR since the assessment order has been held by the Tribunal as void, and therefore no addition can be made in the hands of the assessee, in the appeal of the Revenue, arising from the same assessment order.
3.2 It was further submitted that the Revenue feeling aggrieved by the order passed by the Tribunal in had filed the Misc. Application No. 2/Chd/2022 on 17/05/2024. 3.3 The Tribunal had dismissed the M.A filed by the Revenue by an speaking order dt. 09/08/2024 and in the said order the Tribunal in para 11 has held as under: 11. In view of the aforesaid discussions and considering the entirety of facts and circumstances of the case, the various grounds of appeal taken in the present misc. application are disposed off as under: Findings Grounds of Misc. application Whether on the facts and in the circumstances The order so passed by of the case, the order passed by the Hon'ble the Tribunal cannot be i) Income Tax Appellate Tribunal is vitiated being held to be vitiated as no obtained fraudulently by the Assessee by findings on merits of the suppressing the order of the Hon'ble special audit report jurisdictional High Court dated 01.06.2017 including the ground of dismissing the Civil Writ Petition No. 12434 of limitation has been 2017 wherein the challenge to the special audit given by the Hon’ble report including the ground of limitation etc. High Court in view of the was upheld? alternate remedy available to the assessee under law. Whether on the facts and in the circumstances Should the Revenue is of the case, the Hon'ble Income Tax Appellate aggrieved with the said ii) Tribunal is right in law in holding the reference findings of the under Section 142(2A) of the Income Tax Act, Coordinate Bench, the 1961 as appealable before the Appellate appropriate action lies in Authorities ignoring the scheme of the fiscal filing appeal before the statute wherein the legislature consciously has Hon’ble High Court and not provided any Appeal and Appellate the said ground cannot Tribunal, being a creature of statute with be decided within the powers conferred by the statute is statutorily limited domain of obligated to pass an order within the confines section 254(2) as the of statute? same will amount to review of the decision already taken by the Coordinate Bench. Whether on the facts and in circumstances of Should the Revenue is the case, the Hon'ble Income Tax Appellate. aggrieved with the said iii) Tribunal is right in law in adjudicating and findings of the holding the reference under Section 142, (2A) Coordinate Bench, the of the Income Tax Act, 1 961 invalid and appropriate action lies in examined the veracity of the same as if the filing appeal before the right of appeal is Inherent? Hon’ble High Court and the said ground cannot be decided within the limited domain of section 254(2) as the same will amount to review of the decision already taken by the Coordinate Bench.
Whether on the facts and in the circumstances Should the Revenue is of the case, the Hon'ble Income Tax Appellate aggrieved with the said iv) Tribunal is right in law in admitting the additional findings of the ground of Appeal after the expiry of period of Coordinate Bench, the limitation under Section 253 of the Income Tax appropriate action lies in Act, 1961 without there being any application filing appeal before the for condonation of delay by the Assessee? Hon’ble High Court and the said ground cannot be decided within the limited domain of section 254(2) as the same will amount to review of the decision already taken by the Coordinate Bench.
Whether on the facts and in the circumstances Should the Revenue is of the case, the Hon'ble. Income Tax Appellate aggrieved with the said v) Tribunal is right in law in adjudicating the findings of the reference under Section 142(2A) of the Income Coordinate Bench, the Tax Act, 1961 under the guise of limitation for appropriate action lies in passing an order of assessment whereas the filing appeal before the Hon'ble High Court declined to interfere in the Hon’ble High Court and challenge laid to the special auditor report, the said ground cannot limitation etc. and the adjudication suffers from, be decided within the the vice of principal of estopple, waiver, limited domain of acquiescence etc ? section 254(2) as the same will amount to review of the decision already taken by the Coordinate Bench. Should the Revenue is Whether on the facts and in the circumstances aggrieved with the said vi) of the case and in law, the Hon'ble Income Tax findings of the Appellate Tribunal is right in adjudicating the Coordinate Bench, the issue in Appeal which issue was not appropriate action lies in adjudicated by the Commissioner of Income filing appeal before the Tax (Appeals) being not appealable? Hon’ble High Court and the said ground cannot be decided within the limited domain of section 254(2) as the same will amount to review of the decision already taken by the Coordinate Bench. Whether on the facts and in the circumstances Should the Revenue is of the case and in law, the Hon'ble Income Tax aggrieved with the said vii) Appellate Tribunal is right in holding that the findings of the reference to special audit is an integral part of Coordinate Bench, the process ignoring the scheme of the statute and appropriate action lies in the title of Section 142 of the Income Tax Act, filing appeal before the 1961 i.e., enquiry before assessment? Hon’ble High Court and the said ground cannot be decided within the limited domain of section 254(2) as the same will amount to review of the decision already taken by the Coordinate Bench. Whether on the facts and in the circumstances Should the Revenue is of the case and in law, the Hon'ble Income Tax aggrieved with the said viii) Appellate Tribunal is competent to assume findings of the jurisdiction as a Court of Appeal and re- Coordinate Bench, the examine the veracity of reference to the appropriate action lies in special audit despite dismissal of Civil Writ filing appeal before the Petition by the Hon'ble High Court declining to Hon’ble High Court and interfere with the report of the special auditor? the said ground cannot be decided within the limited domain of section 254(2) as the same will amount to review of the decision already taken by the Coordinate Bench. Whether on the facts and in the circumstances The order so passed by of the case, the Hon'ble Income Tax Appellate the Tribunal cannot be ix) Tribunal misdirected itself in misconstruing the held to be vitiated as no provisions of the Income Tax Act, 1961, due to findings on merits of the suppression of facts by assessee, resulting into special audit report incorrect order which is contrary to the scheme including the ground of of the statute and material on record? .” limitation has been given by the Hon’ble High Court in view of the alternate remedy available to the assessee under law.
3.4 It was submitted that the Revenue is already in appeal before the Hon’ble High Court against the order passed by the Tribunal in and M.A. 3.5 It was submitted by the Ld. AR that the present appeal of the Revenue is required to be dismissed being originated from the same assessment order which was held by the Tribunal as void.
Per contra the Ld. DR submitted that the present appeal is on a peculiar fact as the method of accounting adopted by the assessee have been changed by the assessee for the first time in A.Y. 2014-15 and prior thereto the assessee has not declared any profit on the mercantile principle. It was submitted that for the first time in the A.Y 2014-15 the assessee has opted for the mercantile method of accounting the outcome of the assessment proceedings for the A.Y 2014-15 would have the cascading effect on the subsequent assessment year which are pending before the Tribunal. It was also submitted that the assessee, taking into account various entries while filing the return of income for A.Y. 2014-15 had already factored in primary aspect which was objected to in the appeal of the Revenue.
4.1 The Ld. DR submitted that on the date of hearing on 27/07/2021 the appeal of the assessee as well as the appeal of the Revenue alongwith other appeals were fixed for adjudication and the same fact was pointed out by the Ld. AR from the order sheet wherein the order sheet entries shows the present appeal was fixed alongwith ITA No. 1369/19. It is also not disputed by the Ld. DR that the Revenue has challenged the order of the Tribunal before the High Court and is awaiting outcome of the High Court.
4.2 The Ld. AR had submitted that the assessee has been regularly following mercantile method of accounting, except for the A.Y 2014-15 to 2017-18, the Revenue had accepted the method of accounting of the assessee for the A.Y. 2018-19 onwards and no objection has been raised for the mercantile method (percentage completion method) completion method.
4.3 It was further submitted that every year is independent separate year and the present appeal should not continue, after the decision of the Tribunal, holding that the assessment order passed by AO was void.
The Ld. AR filed written submission which read as under: Sub: - Submissions in the case of Haryana State Industrial & Infrastructure Development Corporation Limited Appeal No: - 1424/Chandi/2019 Sirs, The facts of the case are that the assessment of the year was completed u/s 143(3) of the Income Tax Act. During assessment proceedings, a reference was made by the Assessing Officer for special audit of accounts of the assessee u/s 142(2A) of the Act and after obtaining the report of the Special Auditor, the assessment was made assessing the income at Rs. 6889.06 crores after making various additions based on special audit report. The assessee aggrieved by the order of the Assessing Officer preferred an appeal before the CIT(A) on various grounds including the reference made by the Assessing Officer to special audit. The Ld. CIT(A) adjudicated various grounds and allowed part relief to the assessee on merits and the grounds relating to the reference to special audit was dismissed by CIT(A). The assessee aggrieved by the order of Ld. CIT(A) preferred an appeal before the Hon’ble ITAT raising various grounds in Form 36. The assessee also raised an additional ground which reads as under:
That the assessment order passed u/s 143(3) is prima face illegal, bad in law, without jurisdiction, void ab-initio and is thus barred by time limitation as the very reference to the special audit u/s 142(2A) of the act is illegal and bad in law.
The Hon’ble ITAT in the assessee’s appeal (ITA No. 1369/Chd/2019) has held the order passed by the Assessing Officer as barred by limitation.(Copy enclosed). The relevant extract of the Order is as under:
The assessment order passed therefore in the extended period, as a consequence of the invalid reference, we hold, is barred by limitation and hence void.
Since we have held the assessment order to be void on account of an invalid reference to special audit for the aforesaid reasons, the remaining arguments with respect to the same are not being dealt with by us. The additional ground of appeal raised by the assessee is, therefore, allowed.
It is pertinent to mention that since the assessment order itself was held to be void and barred by limitation, the Hon’ble Bench allowed the appeal of the assessee without going into the merits of the case rendering them as academic in nature. The relevant extract of the finding of the Hon’ble Bench is as under:
Both the parties were heard only on the additional ground raised which has been allowed by us and the assessment order passed has been held to be void. The remaining grounds, relating to merits of the case, therefore, are rendered academic in nature.
In the result, the appeal of the assessee is, therefore, allowed in above terms.
Thereafter, the income tax department filed a miscellaneous application before the Honourable bench requesting the Honourable Bench torecaall the order and pass an appropriate order. The Honorable ITAT in Para 10 of the ITAT Order dated 09.08.2024 [Miscellaneous Application No. 2/Chd/2022](Copy enclosed) has held as under:
On careful perusal of the order so passed by the Hon’ble Punjab and Haryana High Court, it is noted that the assessee corporation in its writ petition has sought quashing the special audit report dated 16/05/2017 u/s 142(2A) of the Act. While dismissing the writ petition, the Hon’ble Punjab and Haryana High Court has held that the assessment order for A.Y 2014-15 is yet to be passed by the Assessing officer and it shall be open for the petitioner to take all the pleas before the Assessing officer at the time of framing the assessment. In view of the same, it was held that there was no ground to interfere in the report of the Special Auditor submitted under Section 142(2A) of the Income Tax Act, 1961. At the same time, liberty was given to the assessee corporation that in case, any adverse order is passed against the assessee, it shall be open for the assessee to impugn the same in accordance with law. We therefore find that the writ petition was filed by the assessee corporation during the pendency of the assessment proceedings, and in order to avoid causing any prejudice to the Revenue, it was held by the Hon’ble High Court that let the assessment proceedings be completed by the Assessing officer and at the same, the assessee was allowed to raise all the pleas as available under law both during the course of assessment proceedings and even subsequently, during the appellate proceedings, should any adverse view is taken against the assessee. The Hon’ble Punjab and Haryana Court has therefore not given any findings on merits of the case and in view of the alternate remedy available in terms of regular appellate proceedings, the writ petition so filed by the assessee was dismissed. There is no finding on merit by Hon’ble Punjab and Haryana Court whereby the assessee has challenged the special audit report and it was left open to the assessee to challenge the same during the regular appellate proceedings. We therefore find that it is incorrect on part of the Revenue to read and interpret the said order so passed by the Hon’ble Punjab and Haryana High Court to hold that the report of the special auditor has become final including the matter relating to limitation. In view of the liberty so granted by the Hon’ble High Court to challenge the adverse view so taken by the Assessing officer and matters connected therewith, where the assessee corporation has taken the additional ground of appeal in its appeal filed before the Tribunal whereby the assessment order passed u/s 143(3) has been challenged by way of additional ground of jurisdiction and bared by limitation as reference to special audit u/s 142(2A) has been claimed to be illegal and bad in law and where the same has been admitted by the Coordinate Bench and adjudicated upon, we find that there is no mistake apparent from record and any action can be contemplated or sought within the provisions of section 254(2) of the Act. Infact, the assessee has availed the remedy as available under the regular appellate proceedings and the necessary liberty has been granted by the Hon’ble High Court. Should the Revenue is aggrieved with the order so passed by the Coordinate Bench, the necessary remedy lies in filing appeal before the Hon’ble High Court which as we have noted supra, the Revenue has already moved an appeal against the order so passed by the Coordinate Bench and no action is permissible or can be acted upon by the Tribunal within the limited domain of section 254(2) of the Act.
In view of the above, we submit that since the assessment itself has been held to be void and barred by limitation by the Honorable Bench, the appeal filed by the Department against the said assessment order has become infructuous and accordingly, we pray that the same be dismissed.
After considering the arguments of the parties and examining the materials on record, it is noted that the ITAT previously adjudicated the assessee’s appeal (in and determined that the reference to a special audit under section 142(2A) was invalid and intended to extend time improperly. Consequently, the assessment order was found to be barred by limitation and therefore void (as stated in paragraph 34 of the Tribunal’s order). Given that the assessment order was declared void, no additions made under such an order could stand, rendering the Revenue’s grounds of appeal academic and without impact.
6.1 Additionally, the Revenue filed a Miscellaneous Application (M.A. No. 2/Chd/2022) claiming that the Tribunal’s order was obtained by suppression of facts, referencing a High Court decision. However, the Tribunal rejected this claim, noting that the High Court had not issued findings on merits and had left the matter open for the assessee to present all legal arguments before the Assessing Officer or appellate authorities (as mentioned in paragraph 10 of the M.A. order). Considering that the assessment order itself was void, continuation of proceedings or appeals based on that order was not possible. Therefore, the Revenue's appeal lacked a valid basis, particularly since the Tribunal emphasized that unless overturned by a higher court, its ruling declaring the assessment void remains effective.
6.2 In conclusion, the appeal of the Revenue is determined to be non- maintainable because the initial assessment order was void due to an improper reference to a special audit, resulting in a limitation bar. As a result, all additions contested in the Revenue’s appeal were deemed academic, and the appeal was dismissed accordingly.