2019 (5) TMI 550 - HC - Income Tax

Court Stayed Special Audit Order for CA Without Personal Books

TEHMUL BURJOR SETHNA Versus ASST. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1 (1)

The court issued a notice returnable on a specified date and stayed further proceedings related to the communication/order dated 30.12.2018. This action ... Special audit u/s 142(2A) - assessee is an individual, he is not required to maintain any books of account - as submitted in terms of CASS Module, scrutiny was required to be carried out to the limited extent of the issues for which the case was selected and hence, the question of clubbing the assessment for assessment year 2017-18 with the assessment years for which the notices had been issued u/s 153A, would not arise - merely because time limit for assessment u/s 153A was coming to an end, that the AO has resorted to the provisions of section 142(2A) with a view to extend the period of limitation despite the fact that there is no warrant for referring the matter to the accountant in view of the fact that petitioner assessee is not required to maintain any books of account - HELD THAT:- Having regard to the submissions advanced by the learned advocate for the petitioner, Issue Notice returnable on 29th April, 2019. By way of ad-interim relief, further proceedings pursuant to the communication/order dated 30.12.2018 (Annexure “U” to the petition) are hereby stayed. Issues:1. Whether special audit under section 142(2A) of the Income Tax Act is warranted for a Chartered Accountant not maintaining personal books of account.2. Validity of the Assessing Officer's decision to order a special audit based on complexity in the petitioner's accounts.3. Legality of referring the matter to an accountant despite the petitioner not being required to maintain any books of account.4. Extending the period of limitation under section 142(2A) to avoid the time limit for assessment under section 153A.Analysis:1. The petitioner, a Chartered Accountant not maintaining personal books of account, challenged the Assessing Officer's decision to order a special audit under section 142(2A) of the Income Tax Act. The petitioner argued that complexities found by the Assessing Officer in the accounts were unfounded due to the lack of maintained books of account. It was contended that the special audit was unnecessary in this case.2. The Assessing Officer's decision to order a special audit was questioned based on the complexity perceived in the petitioner's accounts post a search conducted on the premises. The petitioner highlighted the delay in taking action after the search and raised concerns about the validity of the reasons cited for the special audit, including doubts about the correctness of accounts and the volume of transactions.3. The petitioner further argued against the referral of the matter to an accountant, emphasizing that the petitioner, as an individual not required to maintain any books of account, should not be subjected to such an audit. The petitioner contended that the Assessing Officer's action seemed to be an attempt to extend the period of limitation under section 142(2A) without valid grounds for referring the matter to an accountant.4. In response to the submissions made by the petitioner's advocate, the court issued a notice returnable on a specified date. As an interim relief measure, the court stayed further proceedings related to the communication/order dated 30.12.2018, indicating a cautious approach towards the validity of the Assessing Officer's decision and the necessity of a special audit in the petitioner's case.