1999 (7) TMI 629 - HC - Income Tax

Issues Involved:
1. Legality of the appointment of a special auditor under section 142(2A) of the Income-tax Act, 1961.
2. Compliance with principles of natural justice in the approval process for appointing a special auditor.
3. Applicability of section 142(2A) vis-`a-vis section 44AB of the Income-tax Act, 1961.
4. Justification for the appointment of a special auditor considering the nature and complexity of the accounts.
5. The procedural propriety of the Assessing Officer's actions and the role of the Commissioner and Chief Commissioner.

Issue-wise Detailed Analysis:

1. Legality of the Appointment of a Special Auditor:
The revenue challenged the stay on the operation of the order appointing a special auditor under section 142(2A) of the Income-tax Act, 1961. The court noted that the Assessing Officer, with the approval of the Commissioner or Chief Commissioner, has the authority to direct the assessee to get the accounts audited by a special auditor. The court emphasized that this power is conferred to ensure correct assessment of income, especially in cases involving complex accounts. The court upheld the legality of the appointment, stating that it is justified considering the nature and complexity of the accounts.

2. Compliance with Principles of Natural Justice:
The assessee argued that the Chief Commissioner did not provide an opportunity for a hearing before approving the appointment of the special auditor. The court found that the Chief Commissioner had issued a notice to the assessee, asking for objections against the appointment. The assessee submitted written objections, which were considered by the Chief Commissioner. The court concluded that the principles of natural justice were not violated as the assessee was given an opportunity to present its case.

3. Applicability of Section 142(2A) vis-`a-vis Section 44AB:
The assessee contended that a special auditor could not be appointed under section 142(2A) if the turnover exceeds Rs. 40 lakhs, as such cases are covered under section 44AB. The court disagreed with this interpretation, stating that section 142(2A) applies regardless of the turnover amount. The court clarified that section 142(2A) is intended for cases where the nature and complexity of the accounts necessitate a special audit, and it operates independently of section 44AB.

4. Justification for the Appointment of a Special Auditor:
The court examined the specific facts of the case, including the complexity and volume of the assessee's accounts, the presence of 43 branches, and significant transactions and claims. The court noted that the Assessing Officer had identified numerous issues requiring detailed verification, which justified the appointment of a special auditor. The court emphasized that the appointment is necessary to protect the revenue's interest and ensure accurate assessment.

5. Procedural Propriety of the Assessing Officer's Actions:
The court reviewed the procedural steps taken by the Assessing Officer, Commissioner, and Chief Commissioner. It found that the Assessing Officer had properly submitted a proposal for the appointment of a special auditor, which was endorsed by the Commissioner and approved by the Chief Commissioner after considering the assessee's objections. The court held that the procedural requirements were met, and the approval process was conducted in accordance with the law.

Conclusion:
The court allowed the revenue's appeal, setting aside the stay on the appointment of the special auditor. It directed the Assessing Officer to proceed with the appointment and clarified that the assessment based on the special auditor's report should not be communicated to the assessee until the pending petition is disposed of. The court also disposed of the assessee's appeal, concluding that the appointment of the special auditor was justified and procedurally proper.

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