9911796707
TMI Blog2014 (10) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... order audit of the assessee s accounts by an auditor nominated by the AO the contention of the revenue cannot be accepted that during the process of examination of accounts, spread over the period of six months during which various queries were raised with respect to the accounts, may be considered as an opportunity of hearing, disregards the fact that a hearing is to be afforded after the AO forms a prima-facie opinion, based upon credible material that the accounts produced by the assessee require to be audited by an auditor nominated by the department - The AO formed such an opinion and served a show cause notice upon the assessee but thereafter did not afford an opportunity of being heard - The absence of an opportunity of being heard c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions, counsel for the petitioner submits that vide order dated 24.03.2014 the petitioner/assessee was called upon to file a reply positively by 11 AM on 27.03.2014. The reply was filed before 11 AM on 27.03.2014 but an opportunity of hearing, as required by the first proviso to Section 142(2A) of the Act was not afforded to the petitioner much less, was the petitioner called upon to clarify averments in the reply. A perusal of the interim orders, appended with the reply proves that before the impugned order was passed an opportunity of hearing was not afforded to the petitioner. The impugned order is not only null and void for failure to afford an opportunity of hearing but for absence of a perceptible process of reasoning much less an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of questions were addressed to the petitioner some of which were answered and as others questions remained unanswered or raised further questions. The only option left with the assessing officer was to adopt the procedure prescribed by Section 142(2A) of the Act. We have heard counsel for the parties, perused the pleadings particularly the impugned order dated 30.03.2014. A relevant extract from the impugned order reads as follows: - "Please refer to the above subject. Scrutiny proceedings u/s 143(3) are going on in your case for AY. 2011-12. I am of the opinion that having regard to the nature and complexity of your accounts and in the interests of revenue, your accounts deserve to be audited as provided in Section 142(2A) of the Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee to get the accounts audited by an accountant, as defined in the Explanation below sub-section (2) of section 288, nominated by the Chief Commissioner or Commissioner in this behalf and to furnish a report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed and such other particulars as the Assessing Officer may require : Provided that the Assessing Officer shall not direct the assessee to get the accounts so audited unless the assessee has been given a reasonable opportunity of being heard." Section 142(2A) of the Act, confers power upon the assessing officer, where the nature and complexity of accounts etc. and the interest of the revenue s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 a detailed proposal is sent to CIT Faridabad for approval u/s 142(2A) for special audit in this case. Issues, underlying basis and assessee's reply is enclosed with the proposal. 30.03.2014 Assessee is issued direction u/s 142(2A) to get its accounts audited by an accountant. Prior approval has been obtained from CIT, Faridabad vide letter No.CIT/FBD/Tech/142(2A)/13-14/8571-72 dt 30.3.2014." A perusal of these orders as well as the impugned order leaves no ambiguity that an opportunity of being heard was not granted to the petitioner/assessee thereby prohibiting the assessing officer from exercising power under Section 142(2A) of the Act, to order audit of the petitioner's accounts by an auditor nominated by the assessing office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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