TMI Blog2012 (8) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... A) after considering the objections which the assessee has raised and upon affording to the assessee a reasonable opportunity of being heard in terms of section 142(2A). - 2717, 2718, 2719 and 2720 of 2011 - - - Dated:- 12-1-2012 - CHANDRACHUD D. Y. DR., SAYED A. A., JJ. JUDGMENT The Assistant Commissioner of Income-tax, Range-1(2), issued a notice on May 27, 2011, to the petitioner proposing a special audit under section 142(2A) for the assessment years 2005-06, 2006-07 and 2007-08. The notice stated that as a result of survey proceedings in October, 2010, and in the enquiries made during the course of assessment proceedings for the assessment year 2008-09, it was found that purchases made from 11 parties were bogus. Even thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently, there was no basis in relying upon the proceedings for that assessment year to order a special audit for the three years, viz., the assessment years 2005-06, 2006-07 and 2007-08. Reliance was placed on several judgments construing the provisions of section 142(2A). The petitioner contended that no specific instance as to the complexity of the accounts was pointed out by the Assessing Officer. The Assessing Officer has passed an order on November 7, 2011, issuing a direction for a special audit under section 142(2A). The direction records that a survey under section 133A was conducted on October 19, 2010, during which a hard disk was impounded. Analysis of the data indicated that the assessee had claimed to have purchased goods f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 143(3). The assessment is sought to be reopened under section 148. On the date when the notice to show cause was issued for conducting a special audit under section 142(2A), even the reasons for reopening the assessment were not furnished to the assessee and as a matter of fact, the reopening for the assessment year 2005-06 is beyond a period of four years ; (ii) for the assessment year 2007-08, an assessment has been made under section 143(3). During the course of the assessment proceedings, additions were made on account of bogus purchases. The matter was carried in appeal to the Commissioner of Income-tax (Appeals) and eventually to the Tribunal which remanded the proceedings back for verification and for finding out the details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the affidavit-in-reply. There is, therefore, substance in the grievance of the petitioner that there has been a violation of the principles of natural justice on the part of the Assessing Officer in issuing a direction for a special audit under section 142(2A) without considering the objections of the assessee. The primary requirement of section 142(2A) is a recording of an opinion by the Assessing Officer, having regard to the nature and complexity of the accounts of the assessee and the interests of the Revenue that it is necessary to get the accounts audited, in terms of the statutory provision. The Assessing Officer must do so before he orders a special audit under section 142(2A). A recourse cannot be taken to the provisions cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to whether a direction should be issued under section 142(2A) after considering the objections which the assessee has raised and upon affording to the asses- see a reasonable opportunity of being heard in terms of section 142(2A). On December 20, 2011, this court had granted a stay to the direction for a special audit and to the consequential assessment for the assessment years 2005-06, 2006-07, 2007-08, 2009-10. In order to obviate the bar of limitation, we direct that from the day of the institution of the writ proceedings under article 226 in this court on December 12, 2011, until a fresh order is passed with reference to the notice under section 142(2A), the consequential assessment proceedings shall remain stayed. The Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
