2012 (8) TMI 546 - HC - Income Tax

Special audit under section 142(2A) bogus purchases Held that - There has been a violation of the principles of natural justice on the part of the Assessing Officer in issuing a direction for a special audit under section 142(2A) without considering the objections of the assessee - Assessing Officer must do so before he orders a special audit under section 142(2A). A recourse cannot be taken to the provisions contained there lightly and without due fulfilment of the statutory requirements - Assessing Officer shall reconsider the issue as to whether a direction should be issued under section 142(2A) after considering the objections which the assessee has raised and upon affording to the assessee a reasonable opportunity of being heard in terms of section 142(2A).

Summary

Issues involved:
- Validity of the notice for a special audit under section 142(2A) for assessment years 2005-06, 2006-07, and 2007-08.
- Compliance with the statutory requirements for ordering a special audit.
- Violation of principles of natural justice by the Assessing Officer.
- Consideration of objections raised by the assessee before ordering a special audit.
- Requirement of a reasonable opportunity of being heard for the assessee.
- Stay granted by the court and directions for the Assessing Officer.

Analysis:
1. Validity of the notice for a special audit: The Assistant Commissioner of Income-tax issued a notice for a special audit under section 142(2A) based on findings from survey proceedings and assessment proceedings for the assessment year 2008-09, indicating bogus purchases from multiple parties. The petitioner contested the notice, arguing that the books of account were not rejected for the assessment year 2008-09 and no complexity was identified. The Assessing Officer, however, passed a direction for a special audit primarily relying on data from survey proceedings and assessment details.

2. Compliance with statutory requirements: The petitioner contended that the jurisdictional condition for a special audit under section 142(2A) was not met for the assessment years in question. The Assessing Officer's order did not address the objections raised by the assessee, leading to a violation of natural justice principles. The court emphasized the necessity for the Assessing Officer to record an opinion on the complexity of accounts before ordering a special audit, as mandated by the statutory provision.

3. Consideration of objections and reasonable opportunity of being heard: The court found that the Assessing Officer failed to consider the objections raised by the assessee before issuing the direction for a special audit. It highlighted the importance of providing a reasonable opportunity for the assessee to be heard, as per the legislative requirement inserted in section 142(2A) by the Finance Act of 2007. The court directed the Assessing Officer to reconsider the issue after affording the assessee a reasonable opportunity of being heard.

4. Stay granted and directions for the Assessing Officer: The court granted a stay to the direction for a special audit and consequential assessments for the relevant assessment years. To avoid the limitation period, the court directed the Assessing Officer to pass an order on the notice within six weeks from the judgment date. The court disposed of the petitions, emphasizing the importance of following due process and providing a fair opportunity for the assessee to present their case.