TaxTMI 
TaxTMI 
2009 (3) TMI 74
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....inal 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 No. 7240 of 2008 and 7551 of 2008; whereas the other class relates to petitioners of Special Civil Application No. 7252 of 2008 and 7253 of 2008. Admittedly all the four petitioner companies belong to one group. 3. For Assessment Year 2005-2006 during course of assessment proceedings, respondent authority was of the opinion that powers available under Section 142 (2A) of the Income Tax Act, 1961 ( the 'Act') are requ....
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....ersy 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 malafide exercise only to gain time for completing assessments as the assessments were otherwise getting barred by limitation on 31/12/2007. On merits also various contentions were raised. However, in light of the view that the Court is inclined to take, it is not necessary to reproduce and deal with the said contentions. In support of the contentions made, learned counsel for the petitioners has placed reliance on Apex Court ....
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....e 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) of the Act was issued to the petitioner on 18th March 2008 fixing the hearing on 20th March 2008 along with show cause notice for addition on account of gross profit. I state that the representative of the petitioner attended the hearing and, after considering the submissions, assessment order under Section 143 (3) of the Act came to be passed by me on 31st March 2008 determining total income of the petitioner at Rs.2,45,79,....
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.... 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, namely Alidhara Texpro Engineering Pvt. Ltd., and Alidhara Textool engineering Pvt. Ltd., are involved, though the notice is addressed to all the four companies. This fact becomes clear from a mere glance at the notice (Annexure-B). In paragraph no.2 of the notice, details of four companies are stated in a tabular form, wherein FFPL and GTPL appear at Sr. Nos. 1 & 4, while Texpro and Textool appear at Sr. Nos. 2 & 3. Ther....
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....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 complexity of the accounts of either FFPL or GTPL, and therefore, there was no question of formation of any opinion. In the circumstances, the entire exercise commencing from showcause notice dated 24/12/2007 and culminating in Assessment Order dated 31/3/2008 is bad in law and without jurisdiction. The Assessing Officer has not been able to show, as the record reveals, that in so far as the said two companies, namely FFPL a....
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.... 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 conscious of the fact that even in case of Farmsons Fashions Pvt. Ltd., and Gokulanand Texturisers Pvt. Ltd., the special audit was over and assessments have been framed on the same day as noted in case of Alidhara Texpro Engineering Pvt. Ltd., and Alidhara Textool Engineering Pvt. Ltd., but due to lack of jurisdiction at the threshold, as noted hereinbefore, the said two petitioners have been dealt with separately as a cla....