TMI Blog2009 (3) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... - 7240 of 2008 - - - Dated:- 17-3-2009 - D. A. MEHTA and S. R. BRAHMBHATT, JJ. Mr. S.N. Soparkar, Sr. Advocate with Mrs. Swati Soparkar Miss. P.B. Sheth, advocates for the Petitioner. Mr. B.B. Naik for the Respondent. JUDGMENT All the four petitions have been taken up together as the basic facts are common. Considering the scope of controversies between the parties, the petitions are taken up for final hearing and disposal today. Rule. Learned counsel for the respondent in all the four matters is directed to waive service. 2. Though, all the four petitions are taken up for hearing together, it is necessary to indicate at the outset that there are two classes; one relating to petitioners of Special Civil Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7252/2008) ('GTPL') have wrongly been included in these proceedings without there being even a prima facie observation against the said two companies. That, even if the observations made in relation to the two other companies, namely Alidhara Texpro Engineering Pvt. Ltd., (petitioner of SCA No. 7240/200) (Texpro), and Alidhara Textool Engineering Pvt. Ltd.,(petitioner of SCA 7251/2008) (Textool), there may be some controversy in so far as FFPL and GTPL are concerned, respondent authority had not been able to make out any case and atleast those two petitions were required to be allowed. It was further submitted in relation to all the four petitioners that the entire exercise of invoking powers under section 142 (2A) of the Act was a malafi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the same was served upon the representative of the petitioner immediately. I state that the case was referred to the Auditor, M/s. Kothari Ajit Company, Chartered Accountants, Surat, immediately after passing the said order. I state that, if the petitioner was feeling aggrieved by and dissatisfied with the said order dated 31st December 2007, the petitioner ought to have filed a petition immediately before this Honourable Court and got the same circulated for hearing. I further state that, after the said order dated 31st December 2007, the Auditor, M/s. Kothari Ajit Company, submitted its audit report on 10th March 2008, I state that, after receipt of the audit report from M/s. Kothari Ajit Company, a notice under Section 142(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioner has allowed the said audit to be completed and the audit report being submitted by M/s. Kothari Ajit Company and, thereafter also, allowed the Assessing Officer to pass the assessment order under Section 143(3) of the Act and when it is found that the Assessing Officer has made additions in the income, the present petition has been moved before this Honourable Court, which is clearly an after thought. I therefore state and submit that the present petition is required to be dismissed on this ground alone." 6. As can be seen from the showcause notice dated 24/12/2007, the entire notice granting opportunity of hearing for special audit under Section 142 (2A) of the Act, proceeds on the footing as if only two companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d succeeding, the Assessment Year in question are produced. It is only in paragraph no.13 of the notice that the respondent authority says. In view of the same, your group entities as above are proposed for the special investigative audit,............" 7. Thus, it becomes apparent that in so far as FFPL and GTPL are concerned, the assessing officer has not been able to even prima facie form an opinion that "having regard to the nature and complexity of the accounts of the assessee and the interests of the Revenue, is of the opinion that it is necessary so to do, he may, ...... direct the assessee to get the accounts audited by an accountant, ...." In the showcause notice there is no whisper, leave alone any findings, as to any complex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12/5/2008, despite having been preferred in February 2008. The Court, therefore, in this peculiar fact situation, does not intend to exercise the extraordinary jurisdiction under Article 226 of the Constitution and entertain the petitions on this count alone. In the view that the Court has taken, it is not necessary to record and deal with the detailed submissions on merits, considering the fact that the appeals filed by Texpro and Textool are pending and it is open to the said two petitioners to take up all contentions, including challenge to exercise of powers under Section 142 (2A) of the Act as laid-down by the Apex Court in the case of M/s Sahara India (Firm) Vs. Commissioner of Income-Tax And Another (supra). 9. The Court is cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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