2002 (5) TMI 7 - HC - Income Tax

Search - Assessing Officer has objectively considered the material available with him and has reached a bona fide conclusion about the nature of accounts placed before him that there had been admitted sales out of account books - The day-to-day balancing has not been done. The stocks of three firms were lying in common place and their bifurcation was not possible in such contingencies to identify separate dominion of the petitioners firms on the stocks available - The exercise undertaken under section 142(2A) will be of substantial assistance and thus the case of the petitioners as stated and made out before this court falls short of making out a case wherein it cannot be said that an exercise has been taken by the respondent-Department which is not in conformity with the provisions of section 142(2A) - The writ petition having no force is dismissed.

Issues Involved:
1. Jurisdiction and legality of the transfer of cases from Delhi to Kota.
2. Issuance and validity of notices under section 158BC of the Income-tax Act, 1961.
3. Direction for special audit under section 142(2A) of the Act.
4. Allegations of bias and extraneous considerations in appointing the auditor.
5. Compliance with procedural requirements for ordering a special audit.

Detailed Analysis:

1. Jurisdiction and Legality of the Transfer of Cases from Delhi to Kota:
The petitioners, partnership firms, challenged the transfer of their cases from Delhi to Kota, claiming it was without jurisdiction, illegal, and void. However, they did not formally impugn the transfer order in the writ petition.

2. Issuance and Validity of Notices under Section 158BC:
The petitioners received a notice under section 158BC on September 28, 2001, which provided less than the statutory period. A subsequent notice was issued on January 28, 2002, requiring the filing of returns for the block period, which the petitioners complied with by March 22, 2002. The third petitioner received a notice on March 12, 2002, and also filed a return in response.

3. Direction for Special Audit under Section 142(2A):
The Assessing Officer (AO) directed a special audit of the petitioners' accounts on April 22, 2002. The petitioners argued that this direction was issued without the AO recording satisfaction or forming an opinion on the complexity of the accounts. The AO was required to complete the assessment by April 30, 2002, the statutory time limit. The petitioners alleged that the direction for a special audit was a tactic to extend the assessment period.

4. Allegations of Bias and Extraneous Considerations in Appointing the Auditor:
The petitioners claimed that the auditor, Ms. Maya Agrawal, was associated with Mr. Goyal, a chartered accountant who had visited Kota with the Commissioner of Income-tax. They alleged that the audit direction was influenced by extraneous considerations and was a colorable exercise of power. However, the court noted that the Department agreed to substitute another auditor if the petitioners objected to Ms. Agrawal, thus addressing concerns of bias.

5. Compliance with Procedural Requirements for Ordering a Special Audit:
The petitioners argued that the AO did not scrutinize the account books, which had been with him for almost two years, and mechanically issued the audit direction without a speaking order. The court examined the records and found that the AO had observed defects in the stock register and an admission by the petitioners of sales outside the books of account, indicating tax evasion. The court held that the AO's direction for a special audit was based on an objective assessment of the material available and was in conformity with the law.

Conclusion:
The court dismissed the writ petition, concluding that the AO had objectively considered the material and reached a bona fide conclusion about the complexity of the accounts and the necessity of a special audit under section 142(2A). The court found no evidence of extraneous influence or procedural lapses that would vitiate the audit direction. The petitioners' allegations were deemed insufficient to warrant interference with the AO's statutory exercise of jurisdiction.

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