2011 (6) TMI 498 - HC - Income Tax

Special auditor u/s 142(2A) - Block assessment - undisclosed income - can a block assessment be made on the report of the auditor appointed u/s 142(2A) ? - whether an appointment of an auditor u/s 142(2A) invalidate a block assessment completed under section 158BC? - Held that - Appointment of an auditor u/s 142(2A) does not invalidate a block assessment completed u/s 158BC. Nothing in this section bars the AO to get audit of accounts seized by him in search proceedings. If the seized records disclose concealed income, the same obviously can be assessed in block assessment u/s 158BC r.w.s. 158BB. Hence, appointment of an auditor u/s 142(2A) is permissible for auditing the accounts seized from the assessee and such audit report and findings by the auditor could be relied on by the AO for making block assessment u/s 158BC. Also, after providing consent assessee cannot at a later stage object against the appointment of the auditor or reliance of the auditor s report in the assessment. In view of the consent given by the assessee for the appointment of an auditor by the Department,the assessee cannot at a later stage object against the appointment of the auditor or reliance of the auditor s report in the assessment. The challenge against the Tribunal s order on this ground cannot, therefore, be accepted. As neither the first appellate authority nor the Tribunal has considered the assessee s challenge against the estimation of undisclosed income assessed by the officer based on the auditor s report. Hence, assessee should be given one more opportunity to contest the assessment on quantum addition - Decided partly in favor of assessee for statistical purposes.

Summary

Issues:
Challenge to Tribunal's order reversing first appellate order in block assessment case.

Analysis:
The appeal challenges the Tribunal's decision overturning the first appellate order favoring the assessee, a private limited company engaged in chit business, regarding block assessment for the period from April 1, 1995, to October 18, 2001. The Assessing Officer, after search and seizure, issued a notice under section 158BC, as the accounts were deemed incomplete. Subsequently, a special auditor was appointed under section 142(2A) to audit the accounts, revealing over 1.49 crores from chit business and Rs. 3 lakhs from undisclosed interest income. The Commissioner of Income-tax (Appeals) set aside the assessment, citing that block assessment cannot solely rely on the special auditor's report. However, the Tribunal reversed this decision, upholding the block assessment completed under section 158BC.

The crux of the issue lies in whether the appointment of a special auditor under section 142(2A) invalidates the block assessment under section 158BC. The High Court opined that such appointment does not invalidate the block assessment, as section 142(2A) allows the Assessing Officer to appoint an auditor for assistance. The seized records and accounts can be utilized to estimate undisclosed income, with the special auditor's report aiding in this process. The High Court emphasized that the special auditor's role is to assist in determining undisclosed income from seized records, thus justifying reliance on the auditor's report for block assessment.

Furthermore, the High Court addressed the contention regarding the assessee's objection to the auditor's report. While the Tribunal noted the absence of a cross-examination request by the assessee, the High Court stressed that such cross-examination is not crucial if the challenge against the auditor's findings is valid. The Court highlighted that the first appellate authority and the Tribunal failed to assess the merits of the assessee's objections against the undisclosed income estimation. Consequently, the High Court directed the first appellate authority to reconsider the assessment, allowing the assessee an opportunity to contest the quantum addition within three months, focusing solely on the estimation of undisclosed income by the auditor accepted by the officer.

In conclusion, the High Court partially allowed the appeal, directing a reevaluation of the undisclosed income assessment while upholding the validity of the auditor's appointment and report reliance. The assessment's correctness in estimating undisclosed income is to be scrutinized, granting the assessee a chance to contest the quantum addition within a specified timeframe.