Case Law Details
RELEVANT PARAGRAPH
5.1 The dates as mentioned are not disputed, A perusal of the provisions pf Section 142(2A) shows that at any stage of the proceedings before the A.O. if the A.O. is of the view that there is complexity in the accounts of the assessee, then, in the interest of justice, he may with the prior approval of the Chief Commission ^or the Commissioner, direct that the assessee’s accounts are to be audited by an accountant as specified under the Act. The direction for conducting special audit is subject to the assessee having been given reasonable opportunity of being heard. The reading of the provisions of Section 142(2A) categorically shows that no time limit is specified for the completion of the special audit. A reading of the provisions of Section 142(2C) shows that the report u/s 142(2A) is to be furnished within the specified period, which is to be determined-by- the A.O. Thus, it is noticed that Section 142(2C) specifies the time limit and such time limit is given at the discretion of the A.Q. This discretion of the A.O. in granting the time limit is controlled by the proviso to Section 142(2C). The provision specifies that the A.O. can give any period in his discretion subject to a maximum of 180 days from the date on which the direction u/s 142(2A) is received by the assessee. This is because the opening words of Section 142(2C) specify that it applies to every report under sub-section (2A). A perusal of the circular No-0l dated 27.03.2009 as also the memorandum explaining, to the provisions in the Finance Bill, 2008, clearly shows that the legislature as also the CBDT categorically were of the view that subsection (2A) (2B), (2C) and (2D) of Section 142 deal with the powers of the A.O. to order a special audit fix the time limit with overall period of 180 days etc. and these provisions to be read together as complete code in these matters. In these circumstances, it cannot be held a. that the provisions of Section 142(2A) had a standalone position and was unfettered by section 142(2C).
5.2 Further, a perusal of the proviso to Section 142(2C) shows that the A.O. did have the powers to extend the period by further period or periods as he thinks fit subject to the maximum limitation of a period of 180 days from the date on which the direction u/s 142(2A) was received by the assessee. On the facts of the present case, it is noticed that the assessee has not made any application for the extension of the period of special audit. Therefore extension which has been done vide letter dated 07.03.2007, 17.04.2007 and 17.05.2007 made on the request of the auditor could duly be taken as the suo motu action of the A.O. A perusal of the memorandum explaining the provisions of Finance bill 2008 as also the Circular No.01 dated 27.03.2008 which explains the amendment to the proviso to Section – 142(2C) shows that the term “suo motu, or/’ had been inserted w.e.f. 01.04.2008. In these circumstances, it would have to be held that the power to suo motu extend the period for completion of the special audit was available to the A.O. only w.e.f. 01.04.2008 and before such date, the extension can be made only at the request of the assessee on an application made in this behalf by the assessee. If it is to be read otherwise, there was no reason for such amendment. The fact that 1* the term “suo moto” has been inserted with effect from” 01.04.2008 shows that before 01.04.2008,- the A.O. did not have the inherent powers to extend the time limit without an application from the assessee. Further, even such extension would be controlled in view of the term “for any good & sufficient reason”. Here as the period in the present case is before 01.04.2008 and as it is noticed that the assessee has not made any application for the extension of the period given vide order for special order dated 12.12.2006, the extensions made by the A.O. vide his order dated 07.03.2007, 17.04.2007 and 17.05.2007 are without jurisdiction and consequently such extensions as made vide those letters / orders cannot be said to extend the limitation. The exclusion as provided in the Exp. (ii) to Section 153B would have to be read to be 90 days being a period between 12.12.2006 to 12.03.2007. Consequently, it would have to be held that the time -period u/s 142(2A) is controlled by the provisions of Section 142(2C) and the exclusion provided in explanation (ii) to Section 158B was for the period form 12.12.2006 to 12.03.2007 and consequently the claim of the assessee that the assessment is barred by limitation, would have to be upheld and we do so.
