9911796707
TMI Blog2018 (9) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... ly after the fact that the accounts have been verified by the Special Auditor, the present writ petitions have been filed on 04.04.2018. On 13.08.2018, it was pointed out that no assessment order was passed and the period for assessment is going to expire today, ie., 13.08.2018, we issued notice to the Revenue and directed that the assessment proceedings may go on, but no final order shall be passed without the leave of this Court. On the next date of hearing, learned counsel for the Revenue has submitted that the assessment order has been passed on 13.08.2018 and the petitioner is having statutory remedy of appeal before the Commissioner of Income-tax and submitted that the writ petitions are rendered infructuous. Considering the law laid down in the case of Sahara India (Firm) V/s. Commissioner of Income-tax, Central – I (2008 (4) TMI 4 - SUPREME COURT), so also the fact that Principal Commissioner of Income-tax granted two opportunities to the petitioner vide show cause notice dated 30.11.2017 and letter dated 11.12.2017, we are of the view that sufficient compliance of the proviso to Section 142(2A) has been made. We are also unable to persuade ourselves to agree with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement drawn and copies of loose papers, etc, found and seized during the course of the search initiated by the respondents Deptt. on 07.01.2016. Six more notices, all dated 10.07.2017, were issued by the respondent No.1 to the petitioner directing it to appear before it and furnish certain documents. The petitioner vide letter dated 18.07.2017, requested the respondent No.1 to supply copies of Panchnama and statements. On 21.08.2017, another show cause notice was issued by the respondent No.1, directing the petitioner to furnish more documents and explanation relating to certain transactions as mentioned in the notice. The Assessing Officer after considering the nature and complexity of the accounts, voluminous of accounts, doubts about correctness of accounts, multiplicity of transaction of accounts, voluminous seized material, total non-cooperation on part of the petitioner and material available on record, formed the opinion, which was reduced in writing vide letter dated 20.11.2017 and 23.11.2017. Vide letter dated 20.11.2017, the Assessing Officer made a request to the Principal Commissioner of Income Tax Central, Bhopal, to consider the facts of the case and thereafter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 169) Taxman 328 (SC) and submitted that the principles laid down by the Hon'ble Supreme Court are that the principle of 'Audi alteram partem' cannot be ignored even at the stage of pre-decisional hearing as no opportunity of hearing was given to the assessee by the Assessing Officer and, therefore, the impugned letters / orders / communications are liable to be quashed. 8. Per contra, Ms. Veena Mandlik, learned counsel for the respondent Revenue has submitted that opportunity was duly provided by the Principal Commissioner of Income-tax and thus, the sufficient compliance of the provisions have been made. She further submitted that the proviso to Section 142(2A) mandates that the opportunity has to be given to the assesseee, but the said proviso does not necessarily mandates that the opportunity has to be given to the assessee by the assessing officer only. The plain reading of proviso makes it clear that a reasonable opportunity of being heard has to be given and the opportunity was given twice by the Principal Commissioner Tax (Central) Bhopal and prayed for dismissal of the writ petitions. 9. The issue arising in this present bunch of writ petitions is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to the learned Senior counsel for the petitioner, before any direction can be issued under Section 142(2A) of the Act for special audit of the accounts of the assesseee, there has to be a pre-decisional hearing and an opportunity has to be granted to the assessee for the purpose. 12. In Rajesh Kumar V/s. Dy. Commissioner of Incometax (supra), while observing that the principles of natural justice must be held to be implicitly in Section 142(2A) of the Act, the Hon'ble Supreme Court has held as under :- The hearing given, however, need not be elaborate. The notice issued may only contain briefly the issues which the Assessing Officer thinks to be necessary. The reasons assigned therefor need not be detailed ones. But, that would not mean that the principles of natural justice are not required to be complied with. Only because certain consequences would ensue if the principles of natural justice are required to be complied with, the same by itself would not mean that the court would not insist on complying with the fundamental principles of law. If the principles of natural justice are to be excluded, Parliament could have said so expressly. 13. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax. Hence, the Principle Commissioner of Income-tax is required to grant an opportunity to assessee or on the basis of opportunity granted by the assessing officer and based on the material available on record, the Principle Commissioner of Income-tax has to approve the proposal of the Assessing Officer if the Principle Commissioner deems it fit. 15. The requirement of pre-decisional heairng was met as Principle Commissioner of Income-tax (Central), Bhopal, before deciding the issue of approval for Special Audit gave the opportunity to the petitioner. 16. The petitioner has not made any objection regarding procedure followed by the Assessing Officer or by the Principal Commissioner of Income Tax (Central), Bhopal, in the entire process of Special Audit till the completion of Special Audit and only after the fact that the accounts have been verified by the Special Auditor, the present writ petitions have been filed on 04.04.2018. On 13.08.2018, it was pointed out that no assessment order was passed and the period for assessment is going to expire today, ie., 13.08.2018, we issued notice to the Revenue and directed that the assessment proceedings may go on, but n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
