TMI Blog2004 (7) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently, I find no merit in the petition. The same is dismissed - - - - - Dated:- 27-7-2004 - Judge(s) : ARUN MISHRA. JUDGMENT Arun Mishra J.- This writ petition has been filed by the petitioner-cooperative bank as against the order (P-3), dated January 29, 2004, passed by the Assistant Commissioner, Income-tax in exercise of power under section 142(2A) of the Income-tax Act directing the petitioner to get the accounts audited by an auditor/respondent No. 4. The petitioner has also prayed for quashment of order (P-5) dated February 25, 2004, passed by respondent No. 2 refusing to withdraw the directions under section 142(2A). A notice (P-2) dated January 6, 2004, was issued under section 158BC by respondent No. 3 for furnishing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be borne by the petitioner. Accounts have been audited, reports have been filed. The return of income-tax was filed at the relevant time. Thus, the petitioner has been saddled with an unnecessary financial burden and time consuming exercise. The order is without any basis and lacks objectivity. A return has been filed by respondents Nos. 1 to 3 contending that search operations under section 132(1) of the Income-tax Act were carried out at the banking premises at 113, Berasia Road, Bhopal, on February 21, 2002. The search operations were finally concluded on February 22, 2002. The following valuables, documents were found/seized: (A) Annexure CF-1 dated February 21, 2002. Cash found Rs. 23,69,640. No seizure of cash was made. (B) L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the directors were to be assessed at Mumbai. The Commissioner of Income-tax, Mumbai, proceeded to transfer the cases from Mumbai to the Assistant Commissioner of Income-tax, 3(1) Bhopal. The Shalimar group cases were centralized in this circle on different dates. The last order under section 127 was passed by the Commissioner of Income-tax, Mumbai, on February 16, 2004, against which Shri Sanjay Mirchandani has filed Writ Petition No. 503 of 2004 in the High Court of Judicature at Mumbai, which is pending. Unless the place of assessment was finally decided in the entire Shalimar group cases, notice under section 158BC in the case of the bank alone could not be issued. Notice under section 158BC was received by the petitioner on January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of production of books of account arises after the return for the block period is filed. The petitioner has failed to file the return for the block period. There was no occasion to ask the petitioner to produce books of account. The documents which were in the possession of respondent No. 3, were sufficient to form an opinion of complex nature of the accounts. Non-filing of the return within the specified period, is sufficient reason to conclude complex nature of accounts. Under the provision of section 158BC of the Income-tax Act, undisclosed income is assessed. The undisclosed income does not fall under the category of exemption, hence appointment of auditor has been rightly ordered and the order is within the jurisdiction. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BC. In spite of the direction, the petitioner has not filed a return for the block period and has thus not produced the account books, hence the material seized including of the account which was in the possession of the Department was looked into and considering the complex nature of the case, power has been exercised in an objective manner to order audit. There are sufficient grounds to exercise the power. It was not to gain time for completing the assessment under section 158BC of the Income-tax Act. The main question for consideration is whether exercise of power under section 142(2A) of the Income-tax Act is proper. Section 142(2A) of the Income-tax Act reads thus: "(2A) If, at any stage of the proceedings before him, the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were using the petitioner bank for depositing their unaccounted money in benami names. Search operations have been carried out in the head office and four branches. In spite of being required, the petitioner has not filed a return for the block period and has not produced the account books. Thus, the account books containing 161 pages and 13 loose papers, which were seized on February 21, 2002, from the bank and also a large number of papers which were seized from the bank, have been found to be complex in nature. Entries of the head office and branches printouts are to be tallied. Opinion has been formed inter alia on the basis of seized and impounded material to appoint an auditor under section 142(2A), which cannot be said to be imprope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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