TMI Blog2010 (8) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... and reasons on which the opinion may have been formed for directing special audit. Though grant of approval by the Commissioner has been mentioned, it has not been mentioned as to why it was considered necessary having regard to nature and complexity of accounts and interest of the Revenue that special audit was necessary - Appeal is allowed by way of remand to AO - 4332, 12423, and 6194 of 2010 - - - Dated:- 5-8-2010 - ADARSH KUMAR GOEL, AJAY KUMAR MITTAL, JJ. JUDGMENT Adarsh Kumar Goel J.- 1. This order will dispose of C. W. P. Nos. 4332, 12423 and 6194 of 2010, as the issues involved are inter-connected. 2. In C. W. P. No. 4332 of 2010 filed on March 8, 2010, the challenge is to the order passed by the Assistant Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said letter. 4. The grievance in the petition is that a speaking order was not passed under section 142(2A) of the Act. Such an order could not be passed in the absence of accounts being complex. The impugned order does not indicate how the opinion as to desirability of special audit was formed. The litigation between the group A and the group B and maintaining of separate accounts did not by itself create any complexity. In the return filed by the assessee, tax audit report, balance-sheet and other documents have been duly filed. 5. On notice being issued, reply has been filed on behalf of the respondents stating that the accounts of the assessee were found to be complex for the assessment years 2003-04 to 2006-07 and special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed 180 days under section 142(2C) of the Act. According to the petitioner, since the assessment was not completed up to December 31, 2009, in any case, after the period under section 142(2A) is to be excluded, the limitation expired on June 29, 2010. 8. Though no notice has been issued in this writ petition, learned counsel for the Revenue has assisted the court on the issue involved in this petition also with reference to the averments in the reply already filed in other petitions. His stand is that after the notice was issued by this court in C. W. P. No. 4332 of 2010 on March 12, 2010, and in C. W. P. No. 6194 of 2010 on April 29, 2010, the assessee did not co-operate in compliance with the order of special audit. Even though, no st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted that opportunity of hearing was required to be given to the assessee before passing of the order. Before dubbing the accounts to be complex, a genuine and honest effort was required to be made to understand the accounts and to seek explanation from the assessee. The opinion formed should be based on objective criteria. The said provision could not be resorted to merely to shift the responsibility of scrutinizing the accounts and to pass on the buck to the special auditor. The requirement of previous approval of the Chief Commissioner also showed that the power could not be exercised arbitrarily. The approval should not be mechanically given by the Chief Commissioner. 11. From the impugned order, we are unable to find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petition to the expected date of availability of a copy of this order, i.e., from March 8, 2010, up to August 16, 2010, shall be excluded. We also clarify that Explanation 1 to the proviso to section 153 of the Act provides that where the period of limitation after excluding the time as mentioned in sub sections (1), (1A), (1B) (2), (2A) and (4) is less than 60 days, the limitation shall be extended to 60 days. In this view of the matter, C. W. P. No. 12423 of 2010 is allowed to be withdrawn on the statement of learned counsel for the petitioner at this stage, while C. W. P. Nos. 4332 and 6194 of 2010 will stand allowed in the above terms. The assessee may appear before the Assessing Officer for further proceedings on August 16, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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