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TMI Blog2011 (8) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assessing Officer to the Income Tax Commissioner, for giving approval for special audit has not been brought on record, nor there is any assertion that the proposal contained the opinion of the assessing authority with regard to the complexity in accounts - Decided in favor of the assessee. - Writ Tax No. 991 and 992 of 2001 - - - Dated:- 3-8-2011 - Sunil Ambwani, Pankaj Mithal, JJ. Krishna Agrawal, R.R. Kapoor and Rajes Kumar for the Appellant B. Agarwal, D. Awasthi and Bharat Ji Agarwal for the Respondent JUDGEMENT We have heard Sri S.D. Singh, learned counsel for the petitioner and Sri Dhananjay Awasthi appearing for the department. In these two connected writ petitions are filed by one Sri Hemant Josh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, came up for consideration of Supreme Court in Rajesh Kumar vs. Deputy Commissioner of Income Tax and others [2006] 287 ITR 91(SC) and in Sahara India (Firm) vs. Commissioner of Income Tax and another [2008] 300 ITR 403 (SC). In Rajesh Kumar and others (Supra) the Supreme Court held that in view of Section 136 of the Act, the entire proceedings before the Assessing Officer being judicial, a part thereof, which indisputably is resorted to in aid of the ultimate order of assessment, without any statutory interdict, cannot be called an administrative order. The expression "having regard to" in Section 142(2A) is significant. An opinion must be formed strictly in terms of the factors enumerated therein. The expression indicates that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or affording pre-decisional hearing in the absence of any express provision in Section 142(2A) barring the giving of reasonable opportunity to the assessee, the requirement of observance of the principle of natural justice is to be read into the said provision. The Supreme Court considering the facts that the question of given opportunity in Section 142 (2A) was considered and declared, by the first time by the decision rendered on 11th April, 2008, made the interpretation and the requirement of giving opportunity prospective in nature. The operative portion of the judgment in Sahara India (Firm) (Supra) as quoted below:- The next crucial question is that keeping in view the fact that the time to frame fresh assessment for the relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under Sub-Section (2A) of Section 142 of the Act. In the result, both the appeals are allowed to the extent indicated above leaving the parties to bear their own costs. The proviso has also been added to Section 142(2A) by Finance Act 2007 with effect from 1.6.07, providing that the Assessing Authority shall not direct the assessee to get the accounts so audited unless the assessee has been given a reasonable opportunity of being heard. In the present case, we find that since the proviso was added to Section 142 (2A) by Finance Act with effect from 1.6.07 and the requirement of opportunity was held to be inbuilt under Section 142 (2A) by the Supreme Court in Sahara India (Firm) (Supra) we are not required to consider, whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(2A) of the Act does not refer to the approval accorded by the learned Commissioner of Income Tax, Meerut dated 2.3.01 in case of petitioner or in all the group cases. The order does not state that the accounts books seized from the business premises of the petitioner were examined and found to be complex by the Assessing Authority. It also does not refer to any satisfaction recorded by the Assessing Authority with regard to complexity of the accounts. The orders simply states that in connection with the assessment proceedings under Section 158 BC, read with Section 143(3) pending before the undersigned in the group cases the petitioners are directed to get the accounts audited by Chartered Accountant defined in explanation below Sub-Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The complexity may vary from person to person and depends on satisfaction of person; a simple matter may be complex for another, but there should be an attempt as held in Rajesh Kumar and others (Supra) and Sahara India (Firm) (Supra) to examine the accounts to find out whether they are complex to the persons on his examination to arrive at conclusion that the special audit under Section 142(2A) is necessary. The proposal sent by the Assessing Officer to the Income Tax Commissioner, for giving approval for special audit has not been brought on record, nor there is any assertion that the proposal contained the opinion of the assessing authority with regard to the complexity in accounts. Sri Dhananjay Awasthi has relied upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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