2003 (1) TMI 96 - HC - Income Tax

Two orders passed by the Deputy Commissioner of Income-tax Circle 17(1) New Delhi under section 142(2A) of the Income-tax Act 1961 (for short the Act ) ordering special audit of the accounts of the petitioners are under challenge in these two writ petitions. - we are of the view that no interference is called for in both the cases. The afore-extracted proposal submitted to the Commissioner for his approval depicts application of mind on the part of the Assessing Officer as regards the nature and complexity of accounts of the petitioners and the interests of the Revenue the prerequisite for exercise of power under section 142(2A). Similarly it cannot be said that on the facts on hand there was no application of mind by the approving authority or that some irrelevant factors have weighed with the authorities in ordering special audit as is alleged by the petitioners. - the writ petitions being devoid of merit fail and are accordingly dismissed.

Issues Involved:
1. Validity of the special audit order under Section 142(2A) of the Income-tax Act, 1961.
2. Application of mind by the Assessing Officer and the Commissioner in ordering the special audit.
3. Complexity of the accounts and the interests of the Revenue.
4. Timeliness and motivation behind the special audit order.
5. Previous audits and assessments without special audit.

Issue-wise Detailed Analysis:

1. Validity of the Special Audit Order under Section 142(2A):
The judgment addresses the challenge against the special audit orders dated August 27, 2001, issued under Section 142(2A) of the Income-tax Act, 1961. The petitioners argued that the orders lacked objective analysis and did not meet the preconditions of Section 142(2A). The court examined whether the Assessing Officer's opinion was formed based on the nature and complexity of the accounts and the interests of the Revenue.

2. Application of Mind by the Assessing Officer and the Commissioner:
The petitioners contended that the Commissioner granted approval mechanically without applying his mind to the preconditions required under Section 142(2A). The court emphasized that the opinion of the Assessing Officer must be based on objective consideration, not subjective satisfaction. The court reviewed the proposal submitted by the Deputy Commissioner to the Commissioner, which outlined the complexity of the accounts and the interests of the Revenue, and found that there was an application of mind by both authorities.

3. Complexity of the Accounts and the Interests of the Revenue:
The court noted that the complexity of accounts and the interests of the Revenue are twin conditions for exercising power under Section 142(2A). The petitioners argued that their accounts were not complex and that no fault had been found in previous audits. However, the respondents highlighted the intricate nature of the lottery business, involving numerous draws and complex accounting, which justified the need for a special audit. The court agreed that the complexity of the accounts warranted a special audit to ascertain the correct gross profit.

4. Timeliness and Motivation Behind the Special Audit Order:
The petitioners alleged that the special audit order was issued just before the expiry of the limitation period to save time. The court found that the Assessing Officer had made a genuine attempt to understand the accounts and had sought explanations from the petitioners before ordering the special audit. The court held that the timing of the order did not indicate any extraneous motivation.

5. Previous Audits and Assessments Without Special Audit:
The petitioners argued that their accounts had been audited under Section 44AB of the Act in previous years without any complexity being noted, and thus, a special audit was not warranted. The court clarified that the absence of a special audit in previous years does not preclude the authorities from ordering one if the facts and circumstances of a particular year warrant it. The court emphasized that each assessment year must be considered independently.

Conclusion:
The court dismissed the writ petitions, finding that the special audit orders were valid and justified based on the complexity of the accounts and the interests of the Revenue. The court held that the Assessing Officer and the Commissioner had applied their minds appropriately and that the petitioners' arguments lacked merit. The interim orders staying the operation of the impugned orders/assessment proceedings were vacated, and no costs were awarded.

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