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2014 (2) TMI 1035 - HC - Income TaxValidity of direction for special audit of accounts u/s 142(2A) of the Act Transfer pricing adjustments - Held that - There is no merit in the petition of the assessee - in the petitioner s letter dated 31.10.2011, addressed to the respondent in response to various notices issued by the latter and with reference to the subsequent discussions held in the course of the hearing which took place on 19.10.2011, the petitioner has submitted an elaborate reply in paragraph 9 of the letter under the caption show cause as to why special audit under Section 142(2A) of the Act should not be conducted in the instant case - The paragraph clearly refers to the request made by the respondent on 19.10.2011 to the petitioner to show cause as to why special audit should not be conducted because of the nature and complexity in the financial statements. The inclusion of the last mile charges in the profit and loss account as a debit, when the capitalised infrastructure cost is eligible also to depreciation, may amount to double deduction - The approval was accorded by the CIT on 23.12.2011 - It cannot be said that the CIT did not apply his mind to the proposal for special audit - The assessing officer referred the matter to the Transfer Pricing Officer under Section 92CA of the Act on which the latter did make an addition on account of transactions with the petitioner s associated enterprises and it was at that stage the assessing officer made a reference to special audit; the suggestion was that the exercise was uncalled for since the direction of the TPO was binding on the AO in any case - the AO is empowered to refer the accounts to the special auditor at any stage of the proceedings S.142(2A) - there is no bar, and there is nothing in the sub-section which makes its provisions subject to the powers of the TPO - The reference to special audit cannot be held to be contrary to law on that score Decided against Assessee.
Issues Involved:
1. Validity of the order for special audit under Section 142(2A) of the Income Tax Act, 1961. 2. Examination of books of account by the Assessing Officer. 3. Issuance of show cause notice and adherence to natural justice. 4. Application of mind by the approving authority. 5. Alleged interpolation in the order sheet entries. Detailed Analysis: Validity of the Order for Special Audit: The petitioner challenged the order dated 26.12.2011 directing a special audit of its accounts for the assessment year 2008-2009 under Section 142(2A) of the Income Tax Act, 1961. The petitioner argued that the financial statements were not complex and were already audited without any adverse remarks. The Assessing Officer (AO) issued several notices under Sections 142(1) and 143(2), requesting various details and explanations from the petitioner. The AO ultimately proposed a special audit due to the perceived complexity in the financial statements, particularly concerning related party transactions and allocation of costs. Examination of Books of Account: The petitioner contended that the AO did not call for or examine the books of account before ordering the special audit, which is a prerequisite for assessing the nature and complexity of the accounts. However, the court noted that Section 142(2A) refers to the "nature and complexity of the accounts" and not specifically to "books of account." The term "accounts" is broader and includes balance sheets, profit and loss accounts, and other related documents. The AO's assessment of complexity was based on these documents, which justified the special audit. Issuance of Show Cause Notice and Adherence to Natural Justice: The petitioner argued that no show cause notice was issued before ordering the special audit, violating the principles of natural justice. The court found this contention without merit, noting that the AO did issue a show cause notice on 19.10.2011, which the petitioner responded to in detail on 31.10.2011. The Supreme Court's judgments in Rajesh Kumar and Sahara India (Firm) affirm that a show cause notice need not be elaborate but must provide the assessee an opportunity to be heard. The court concluded that the requirement of natural justice was satisfied in this case. Application of Mind by the Approving Authority: The petitioner claimed that there was non-application of mind by the Commissioner of Income Tax (CIT) while according approval for the special audit. The court disagreed, noting that the terms of reference and the petitioner's detailed objections were before the CIT. The approval process involved consideration of the AO's views and the petitioner's submissions. The court found no evidence of mechanical approval and concluded that the CIT had applied his mind to the proposal for special audit. Alleged Interpolation in the Order Sheet Entries: The petitioner raised a subsidiary contention of alleged interpolation in the order sheet entries dated 14.10.2011 and 19.10.2011 to make it appear as if there was an examination of the books of account. The court did not find it necessary to examine this contention in detail, given the conclusions on the other issues. Conclusion: The court dismissed the writ petition and all connected applications, upholding the validity of the special audit order. The court found that the AO's assessment of complexity was justified, the principles of natural justice were adhered to, and the CIT had applied his mind in approving the special audit. The petitioner's contentions were not accepted, and no costs were awarded.
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