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Income Tax Appellate Tribunal, DIVISION BENCH ‘B’, CHANDIGARH
Before: SHRI SANJAY GARG & DR. B.R.R. KUMAR
PER DR.B.R.R.KUMAR, A.M. :
All the above appeals have been filed by Assessee against the order of
the Ld. CIT(A)-I, Ludhiana dt. 29/11/2012.
Year wise grounds of appeal are reproduced hereunder:
Grounds of Appeal in ITA No. 154/Chd/2013 for the A.Y. 2005-06: 1. That the Ld. Commissioner of Income Tax (Appeals) has erred in law and on facts in upholding the assessment framed u/s 153C read with section 143(3) by the Ld. Deputy Commissioner of Income Tax, Central Circle-Ill, Ludhiana is against law and facts on the file in as much as the very initiation of proceedings u/s 153C is bad in law.
That the assessment framed is bad in law in as much as the assessment has been framed by total disregard of principles of natural justice.
That the Ld. CIT(A) has erred in law and on facts in upholding the directions by the Ld. Assessing Officer to the appellant for getting the accounts audited by a special auditor u/s 142(2A) and the assessment framed thereafter. The assessment made 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.
4 That he further not justified to uphold the disallowance of Rs. 35,539/- made by the Ld. Assessing Officer on account of non-payment of TDS.
Grounds of Appeal in ITA No. 155/Chd/2013 for the A.Y. 2006-07: 1. That the Ld. Commissioner of Income Tax (Appeals) has erred in law and on facts in upholding the assessment framed u/s 153C read with section 143(3) by the Ld. Deputy Commissioner of Income Tax, Central Circle-Ill, Ludhiana is against law and facts on the file in as much as the very initiation of proceedings u/s 153C is bad in law.
That the assessment framed is bad in law in as much as the assessment has been framed by total disregard of principles of natural justice.
That the Ld. CIT(A) has erred in law and on facts in upholding the directions by the Ld. Assessing Officer to the appellant for getting the accounts audited by a special auditor u/s 142(2A) and the assessment framed thereafter. The assessment made 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.
4 That he further not justified to arbitrarily uphold the action of the Ld. Assessing Officer in adding:- (a) a sum of Rs. 69,770/- on account of alleged difference in books of accounts. (b) a sum of Rs. 18,02,160/- on account of alleged payments made by the appellant to M/s Om Industries. (c) a sum of Rs. 3,00,946/- on account of alleged negative cash balance. (d) a sum of Rs. 10,70,000/- on account of alleged entries in katcha books.
5 The Ld. CIT(A) gravely erred in not adjudicating on the following grounds:- (a) disallowance of Rs. 8,732/- by resort to provisions of section 40A(3). (b) a sum of Rs. 5,315/- on account of alleged interest received by the appellant. (c) a sum of Rs. 8,585/- on account of payment of insurance of car
Grounds of Appeal in ITA No. 156/Chd/2013 for the A.Y. 2007-08: 1. That the Ld. Commissioner of Income Tax (Appeals) has erred in law and on facts in upholding the assessment framed u/s 153C read with section 143(3) by the Ld. Deputy Commissioner of Income Tax, Central Circle-Ill, Ludhiana is against law and facts on the file in as much as the very initiation of proceedings u/s 153C is bad in law.
That the assessment framed is bad in law in as much as the assessment has been framed by total disregard of principles of natural justice.
That the Ld. CIT(A) has erred in law and on facts in upholding the directions by the Ld. Assessing Officer to the appellant for getting the accounts audited by a special auditor u/s 142(2A) and the assessment framed thereafter. The assessment made 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.
That he was further not justified to arbitrarily uphold:-
(a) a sum of Rs. 19,123/- by resort to provisions of section 40A(3).
(b) a sum of Rs. 9,77,000/- out of alleged discrepancies in cash in hand / loans received and repaid in cash.
(c) a sum of Rs. 15,000/- on account of non deduction of TDS.
Grounds of Appeal in ITA No. 157/Chd/2013 for the A.Y. 2008-09: 1. That the Ld. Commissioner of Income Tax (Appeals) has erred in law and on facts in upholding the assessment framed u/s 153C read with section 143(3) by the Ld. Deputy Commissioner of Income Tax, Central Circle-Ill, Ludhiana is against law and facts on the file in as much as the very initiation of proceedings u/s 153C is bad in law.
That the assessment framed is bad in law in as much as the assessment has been framed by total disregard of principles of natural justice.
That the Ld. CIT(A) has erred in law and on facts in upholding the directions by the Ld. Assessing Officer to the appellant for getting the accounts audited by a special auditor u/s 142(2A) and the assessment framed thereafter. The assessment made 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.
4 That he was further not justified to arbitrarily uphold:-
(a) disallowance of Rs. 5,000/- on account of alleged cash payment by resort to provisions of section 40A(3)
(b) sum of Rs. 10,000/- and Rs. 3,00,598/- on account of alleged differences in books of accounts.
That he was further not justified to arbitrarily uphold an addition of Rs.51,578/- on account of alleged payment of labour in which no evidence was available and the appellant had denied having made any such payment.
We shall deal with the legal ground taken at Sr. No. 3 of the grounds of
appeal regarding the getting the accounts audited by a special auditor under
section 142(2A).
Brief facts of the case are that the a search and seizure operation under
section 132(1) of the Income Tax Act,1961 was carried out on 24/10/2007 at the
premises of Shri R.K. Bansal / M/s Chet Ram Ravi Kumar and the last Panchnama
was drawn on 28/11/2007. During the search based on the incriminating
document found and seized which belongs to the assessee who is a sister
concern of M/s Chet Ram Ravi Kumar proceedings under section 153(C) were
initiated and the assessment under section 153(C) has completed on
28/07/2010. The sequence of events are as under:
24/10/2007 : Action under section 132(1) initiated
11/11/2009 : Notice under section 143(2) was issued
08/12/2009 : Show cause was issued for conducting special
14/12/2009 Audit under section 142(2A)
21/12/2009 : Reply to the show cause by the assessee
23/12/2009 : Approval for special audit u/s 142(2A) obtained
29/12/2009 : Letter was issued to the assessee
30/12/2009 : Due date for completion of assessment
31/05/2010 : Report of the Special Auditor
28/07/2010 : Assessment completed
The show cause dt. 14/12/2009 (PB-32) mentioned the following points:
a) To translate the books found from Mahajani to English b) 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. c) To bifurcate the accounted transactions from unaccounted transactions to arrive at a definite conclusion and also reconcile the regular books of accounts with these seized books. d) Reconciliation of the promotes with the regular books of accounts to bifurcate the accounted for promotes 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 basis from Asstt. Year 2002-03 to Asstt. Year 2008-09. e) To redraw the balance sheet, P&L account from A.Y. 2002-03 to 2008-09, so as to arrive at a true and correct income. f) To check the loose papers found and reconcile them with your regular books of account. 6. In reply to the show cause the assessee submitted before the Assessing
Officer that the assessee has fully cooperated with the department and
attended all the proceedings in complied with all requirements. It was submitted
that so far as Kacchi books in Mahajani language are concerned, the translated
version has already been submitted and also the regular books of accounts
have been translated into computerized accounts and they are available for
verification.
The Assessing Officer considered the report and held that the perusal of
appraisal report clearly states that the assessee did not attend the post search
proceedings to explain the nature of the seized material, the assessee has not
complied to the notice issued from January 2009 to November 2009 and since
no compliance to the questionnaire issued was made by the assessee and
keeping in view the intricate nature of the seized material and since a true
picture of the undisclosed income cannot be worked out within a short span of
a week and therefore in view of the complexity of accounts and the interest of
the Revenue special audit was necessary.
Holding as above, the Assessing Officer has determined the terms of
reference of special audit which are in toto as per the points raised from a) to f)
mentioned in the show cause notice (refer para 1 of this order).
Consequent to the order issued by the Assessing Officer the report of the
Special Auditor was submitted on 31/05/2010.
The Assessing Officer has mentioned certain salient points regarding the
Special Audit which are as under:
a) The Auditor was not provided the required information and explanation necessary for the purpose of the audit. b) The assessee did not care to reply to various letters issued by the auditor during the course of the audit. c) No proper books of accounts maintained and kept by the assessee. d) The examination by the auditor further revealed that evidences like proper bills/vouchers for items debited/credited in the Profit and Loss accounts not produced, suggesting the non availability of the same. e) The auditor, therefore, based his report on the books of account produced and documents seized during the course of the search. 11. During the hearing before us the Ld. AR argued that the Special Audit
conducted was only to extend the time to complete the assessment inspite of
all compliances required by the Assessing Officer are met. It was further argued
that at the outset the notice was issued not to the assessee who is a partnership
firm. The address mentioned in the show cause was Ravi Kumar Bansal C/o Chet
Ram Ravi Kumar, 2, New Grain Market, Muktsar whereas the assessee firm name
is M/s Sundar Mal Sat Pal. He argued that the point no. 1 of the reasons given by
the assessee that the assessee did not attend the post search proceedings to
explain the nature of the seized material cannot be a reason for ordering
Special Audit. Similarly the AO's observation that the special audit is being
referred keeping in view the intricate nature of the seized material and true
picture of undisclosed income cannot be worked out within a short span of a
week at this juncture belays all the statutory provisions enshrined for referring the
matter to the special audit.
Further on core issues of references, it was argued that translation from Mahajani
language to English language cannot be a function of the Special Audit as
translated versions have already been given to the Assessing Officer. It was
argued that the person who writes or translates the books of accounts cannot
be authority to conduct the Special Audit in any case. Taking objection to the
point no. b) of the show cause “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 Mai Sat Pal ” cannot be a purpose of Special Audit as
bifurcation of transactions in one cash book no way, involves auditing of
accounts.
Similarly taking objection to the point nos. c, d & f) of the show cause
“c) To bifurcate the accounted transactions from unaccounted transactions to
arrive at a definite conclusion and also reconcile the regular books of account
with these seized books”.
“d) Reconciliation of the pronotes with the regular books of accounts 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 basis from Asstt. Year
2002-03 to Asstt. Year 2008-09.”
“f) To check the loose papers found and reconcile them with your regular books
of account”.
it was argued that the Assessing Officer is trying to delegate the job of the
Assessing Officer to the Special Auditor which cannot be accepted. Further
referring to point no. e) wherein it was mentioned to redraw the balance sheet,
P&L Account to arrive at a correct picture cannot be said to be a function
under audit or special audit as per the Income Tax Act,1961.
Referring to the provisions of Section 142(2A) as defined in the Income Tax
Act,1961, the Ld. AR argued that there was no reference to the nature and
complexity of the accounts which is the pre-requirement for ordering Special
Audit. To conclude he argues that the entire reasons given by the Assessing
Officer revolve around non cooperation on the part of the assessee, difficulty in
working out the undisclosed income within a short span of a week time and no
complexity of accounts was brought about.
Against the arguments of the Ld. AR Shri. Manu Malik CIT(DR), vehemently
argued that the assessee has not complied to the notices issued and the
contumacious conduct of the assessee in non cooperation to provide any
details, in the absence of correct books of accounts, the ordering of special
audit is the only action which is available to the Assessing Officer in determining
the undisclosed income. He argued that since the books are non decipherable
language i.e; Mahajani the accounts in all reasons have to be re-audited and
accordingly reference to the special audit is highly valid.
The Ld. DR argued referring to the decision of Hon’ble Delhi High Court in
the case of DLF Ltd And Another vs Additional Commissioner Of Income Tax dt.
28 March, 2014 wherein it was held that the managements may at times regard
such enquiries as an unwarranted intrusion or a hounding approach but is a
regulated provision which accepts the need and necessity of the Assessing
Officer to take help of an expert accountant i.e. a Chartered Accountant, a
person who is academically qualified and has practical experience to
understand accounts and unearth tax evasion or furnishing of inaccurate
particulars etc. The provision balances the right of the Revenue with the
inconvenience which the assessee may face. Assessing Officers are not
Chartered Accountants and when required and permissible, therefore, can take
help and assistance from the qualified specialists to complete the assessment
and determine the taxable income of an assessee.
Ld. DR taking cue from the order of the Hon’ble Delhi High Court in the
case of Sahara India Financial ... vs CIT And Ors. Dt. 23 August, 2017 wherein the
earlier judgment was quoted argued that the powers under Section
142(2A) were exercised in terms of the legislative provisions only. The object and
purpose behind the legislation is to facilitate investigation and proper
determination of the tax liability. The importance and relevancy of the
legislation cannot be underestimated and it is a power available with the
Assessing Officer to aid and assist him. Accounts should be accurate and
provide real time record of the financial transactions of the assessee. In order to
ensure reliability and accuracy, enterprises resort to internal audit and an
external audit which can be a statutory audit. Internal audits are normally
conducted in house generally by acquainted or qualified accountants.
Statutory audit is compulsory under the Companies Act, 1956 or when stipulated
by the Act and accounts have to be audited by a qualified Chartered
Accountant. Chartered Accountants are not ordinary accountants but
specialists who have successfully undergone academic study and have
extensive practical experience and trained for the said work. As opposed to an
ordinary accountant, a Chartered Accountant with his experience and
academic background is in a better position to investigate, examine and
scrutinize entries and records of financial transactions.
16.1 He further argued that the entire events shows a high degree of non
cooperation on the part of the assessee in extending statutory compliance and
keeping in view the nature and complexity of the accounts the Special audit
under section 142(2A) was rightly ordered to be conducted.
16.2 Rebutting the arguments of the Ld. DR, Ld. AR argued that no case was
made by the Assessing Officer regarding the nature and complexity of the
accounts while ordering the Special Audit.
We have heard Ld. Representatives of both the parties and perused the
material available on record.
The provisions of Section 142(2A) of the Income Tax Act,1961 provides for
“"(2A) If, at any stage of the proceedings before him, the [Assessing] Officer, having regard to [the nature and complexity of the accounts, volume of the accounts, doubts about the correctness of the accounts, multiplicity of transactions in the accounts or specialised nature of business activity of the assessee, and] the interests of the revenue, is of the opinion that it is necessary so to do, he may, with the previous approval of the [Principal Chief Commission or] Chief Commissioner or [Principal Commissioner or] Commissioner], direct the assessee to get the accounts audited by an accountant, as defined in the Explanation below sub-section (2) of section 288, nominated by the [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner] in this behalf and to furnish a report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed and such other particulars as the [Assessing]
Officer may require: [Provided that the Assessing Officer shall not direct the assessee to get the accounts so audited unless the assessee has been given a reasonable opportunity of being heard] 18.1 The above provisions were applicable w.e.f 01/06/2013 and prior to that
definition was only for the nature and complexity of the accounts of the
assessee and all other conditions have been inserted by Finance Act, 2013 w.e.f
01/06/2013.
18.2 The provisions provides for certain conditional requirements for Special
Audit which are as under:
• Nature and complexity of accounts • Volume of the accounts • Doubts about correctness • Multiplicity of transactions • Specialized nature of business • Interest of Revenue
And the pre amendment it was only the nature and complexity of the
accounts. The reasons given by the Assessing Officer while ordering the special
audit are being examined in the context of the requirements laid down by the
statute. No doubt the services of the expert in the field of accounts cannot be
denied to the Assessing Officer at the same time the Assessing Officer should
have reasonable satisfaction to be brought out on record about the nature and
complexity of the accounts. In the instant case the Assessing Officer has not
given any finding about the nature and complexity of accounts, volume of
accounts, multiplicity of transactions, specialized nature of business activity. We
find from the record the assessee has submitted books of accounts translated in
English and the reasons given by the Assessing Officer viz details have not been
given, intricate nature of the seized material, true picture of undisclosed income
could not be worked out within a span of a week cannot make any valid
ground for referring a case to Special Audit.
In the case of AT&T Communication Services India Pvt. Ltd. the Hon’ble High
Court of Delhi upheld the validity of Special Audit even though books of
accounts were not called for examination by the Assessing Officer because the
Assessing Officer has given a reasoned satisfaction regarding the method of
accounting showing the complexity of accounts and referring the terms of
identifying the accounting standard applied for recognition of income. Thus we
hold that even when books of account have not been called for satisfaction as
to the nature and complexity of accounts of the assessee is a sine-qua-non for
directing the assessee to get the accounts audited by an accountant as
defined in the explanation below Sub Section (2) of Section 288.
Having gone through the reasons as well as the terms of reference given,
we find that the Assessing Officer has nowhere mentioned about method of
accounting or nature of complexity of accounts. It was relied only on non
cooperation during the post search proceedings, during the assessment
proceedings reconciliation of loose papers redrawing of balance sheet and
P&L Account, and reconciliation of promotes. Not only that, no comments on
nature of complexity of accounts year wise has been attempted by the
Assessing Officer. Relying on the facts and circumstances of the case and
following the judgment of Punjab and Haryana High Court in the case of Hind
Samachar Ltd. Vs. Assistant Commissioner of Income Tax and
Another (335 ITR 277) where in it was observed that though grant of approval by
the Commissioner has been mentioned, it has not been mentioned as to why it
was considered necessary having regard to nature and complexity of accounts
and interest of the Revenue that special audit was necessary. The fact remains
that these reasons are conspicuous by their absence in the impugned order. The
impugned order under section 142(2A) of the Act thus does not meet the
requirement of law and based on the judgment of Hon’ble High Court of Delhi
in the case of Delhi Development Authority and Another Vs. Union of India and
Another (350 ITR 432) wherein it was held that an Assessing Officer is required to
scrutinize the entries and verify them, but this does not require services of a
special auditor or a Chartered Accountant to undertake the said exercise.
Section 142(2A) is not a provision by which the Assessing Officer delegates his
powers and functions, which he can perform to the special auditor, it can be
said that the Assessing Officer is not right in getting the accounts audited. We
also hereby place reliance in the case of Sahara India (Firm) Vs. Commissioner
of Income Tax, Central-1 300 ITR 403 (SC) wherein it was observed that "Before
dubbing the accounts to be complex or difficult to understand, there has to be
a genuine and honest attempt on the part of the Assessing Officer to
understand accounts maintained by the assessee; to appreciate the entries
made herein and in the even of any doubt, to seek explanation from the
assessee. But opinion required to be formed by the Assessing Officer for exercise
of power under the said provision must be based on an objective criteria and
not on the basis of an objective satisfaction. There is no gainsaying that recourse
to the said provision cannot be had by the Assessing Officer merely to shift his
responsibility of scrutinizing the accounts of an assessee and to pass on the buck
to the special auditor”.
Similarly the ratio laid down in the case of Unitech Ltd. Vs. Addl. CIT (74
Taxman 121) the Hon’ble High Court of Delhi held that examining the impugned
order in the present case, it is apparent that the order is non speaking order and
gives no reasons for arriving at the conclusion that having regard to the nature
and complexity of assessee's accounts and interest of the revenue, the AO was
of the opinion that accounts are to be audited u/s 142(2A) of the Act. The order
is silent as to on what basis and on what grounds, the accounts proposed to
audit under section 142(2A) were considered complex and on what
considerations it was arrived that it is in the interest of revenue to direct audit of
accounts. Mere reference to a prior approval of CIT does not satisfy the
precondition of a "Speaking order" containing reasons for invoking the provision
of section 142(2A) of the Act. There is no reference to detailed replied furnished
by the assessee during the proceedings.
Having regard to the above it is held that the impugned order reasons are
clearly invisible and conspicuous by their absence. In other words, order is bereft
of any reason. It is stated here that reasons are heart and soul of an order, as
they facilitate the process of judicial review and therefore in absence of any
reason much less cogent, clear and succinct reasons order u/s 142(2A) of the
Act is held to be bad in law and without proper jurisdiction.
The facts mentioned above are squarely applicable to the instant case as
there was no speaking order, and gives no reason for arriving at the conclusion
having regard to the nature and complexity of the accounts and the reasons
are clearly invisible and inconspicuous and hence the order under section
142(2A) of the Act is held to be bad in law.
Since the extended period was taken under the guise of Special audit,
which is held without proper jurisdiction, the time so taken cannot be counted
and the period does not get extended. Since the order was passed on
28/07/2010, the same has to considered, as time barred. Therefore, we are of
the opinion that the order passed by AO suffers from legal jurisdiction and is
therefore, bad in law.
As a result, all the appeals of the assessee are allowed. 25.
Order pronounced in the open Court.
Sd/- Sd/- (SANJAY GARG) (DR. B.R.R. KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 15/06/2018 AG Copy to: 1.The Appellant, 2. The Respondent, 3. The CIT(A), 4. The CIT, 5. The DR