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TMI Blog2015 (10) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax, Meerut by issuance of notice dated 30th October, 2009 and the notice dated 7th December, 2009 and the consequential order dated 18th December, 2009 directing to conduct a special audit under Section 142(2A) of the Act being without jurisdiction also cannot be sustained. In our opinion, it is necessary and essential for the authority to give reasons indicating the complexity of the accounts and the need to get the accounts audited under Section 142(2A) of the Act. We also find that an identical order was issued to another assessee which order was quashed by this High Court on the ground that no reasons had been given. An order dated under Section 142(2A) of the Act entails civil consequences and, an order is required to be passed upon an application of mind and with due care. Complexity of the accounts can only be judged upon a perusal of the books of accounts and after inviting explanation from the assessee. If the books of accounts are not perused, the question of complexity cannot be judged. We are of the opinion that an order under Section 142(2A) cannot be passed on the basis of the seized material unless the assessee failed to produce books of accounts, which in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August, 2009 when he received a notice under Section 153A of the Act issued by the Assistant Commissioner of Income Tax, Meerut intimating the petitioner that the income tax return for the assessment year 2008-09 has not been filed and directed the petitioner to show cause as to why action under Section 271F of the Act should not be initiated. The petitioner appeared and filed his objections contending that the Assistant Commissioner of Income Tax, Meerut had no jurisdiction to proceed with the case and that the order of the Commissioner of Income Tax, New Delhi dated 23rd September, 2008 was patently illegal, inasmuch as it was passed in violation of the principles of natural justice. It was contended that no notice or opportunity of hearing was provided by the Commissioner of Income Tax, New Delhi before transferring the jurisdiction to the Commissioner of Income Tax, Meerut and, therefore, the said order is void. Inspite of such objection being filed, the Assistant Commissioner of Income Tax, Meerut issued a notice under Section 143(2) of the Act directing the petitioner to attend the proceedings for completion of the assessment for the assessment year 2008-09. The Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 142(2A) of the Act for the assessment years 2002-03 to 2008-09 by M/s Tandon Seth and Company, Chartered Accounts of Kanpur. In this backdrop, we have heard Sri Ashish Bansal, the learned counsel for the petitioner and Sri Krishna Agrawal, the learned counsel for the income tax department. The learned counsel for the petitioner contended that the order of the Commissioner of Income Tax, New Delhi passed under Section 127 of the Act transferring the jurisdiction to Assistant Commissioner of Income Tax, Meerut was wholly illegal and in violation of the principles of natural justice. It was urged that no notice or opportunity of hearing was given. Assertions have been made in paragraph 14, 17, 18 and 28 of the writ petition and it has also been specifically asserted in the objection filed by the petitioner before the authority vide their letter dated 1st October, 2009, Annexure 15 to the writ petition. The learned counsel further asserted that the Assistant Commissioner of Income Tax, Meerut had no jurisdiction to issue a notice under Section 153A of the Act for initiating the assessment proceedings for the assessment year 2002-03 to 2008-09 and, therefore, the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferring the jurisdiction to Assistant Commissioner of Income Tax, Meerut. In paragraph 10 of the counter affidavit a vague reply has been given that before issuing the corrigendum, a notice was issued to the petitioner and since no reply was received, a corrigendum was passed. No proof of issuance of notice has been filed. In our opinion, the assertion made in paragraph 8 and 10 of the counter affidavit is not only vague, and cannot be believed. Service of notice is required to be made in the manner specified under Section 282 of the Act. One of the methods of service is as per the procedure prescribed under the Code of Civil Procedure. Order V of the Code of Civil Procedure requires that summons is required to be served at the place of business or residence of the person to whom summons have to be served. In the instant case, it has not been disputed that the petitioner's principle place of business shifted from Ashok Vihar to New Okhla, New Delhi on 18th October, 2007. Due intimation was given to the income tax authorities through their agency NSDL and change of address was acknowledged by this agency vide their letter dated 14th November, 2007. Further, the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the corrigendum dated 26th October, 2009 issued by the Commissioner of Income Tax-VIII, New Delhi under Section 127 of the Act cannot be sustained. In the light of the aforesaid, all consequential proceedings initiated by the Assistant Commissioner of Income Tax, Meerut by issuance of notice dated 30th October, 2009 and the notice dated 7th December, 2009 and the consequential order dated 18th December, 2009 directing to conduct a special audit under Section 142(2A) of the Act being without jurisdiction also cannot be sustained. One of the contention raised by the petitioner is that the order passed by the Assistant Commissioner of Income Tax, Meerut dated 18th December, 2009 under Section 142(2A) of the Act was passed mechanically without application of mind and without giving any reason appears to be correct. In this regard, we find that the said authority issued a notice dated 25th November, 2009 directing the petitioner to produce the books of accounts including subsidiary books of accounts, bill, vouchers, etc. on 4th December, 2009. In paragraph 39 of the writ petition, the petitioner specifically averred that he appeared before the authority on 4th December, 2009 al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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