2023 (10) TMI 565

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....Income Tax, Circle-2(1), Jabalpur cumulatively contained in Annexure P/8, by which approval for special audit u/s. 142(2A) of Income Tax Act, 1961 (for short 'IT Act') is accorded for auditing the account of petitioner -Jabalpur Development Authority. 2. Learned counsel for petitioner and Revenue are heard on the question of admission so also final disposal. 3. It is pertinent to point out at the very outset that this Court while taking cognizance of this matter on 23.01.2019 restrained the Revenue from proceeding with the special audit granted by the impugned order herein. The said interim order continues to subsist till date. 4. Learned counsel for petitioner in support of challenge to the impugned order submits that the same i....

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....titioner (Shri Anil Kumar Gupta, CA) appeared on 18.12.2018 and submitted his statement on behalf of assessee. Learned counsel for the Revenue has replied upon the decision of Gujarat High Court in Dhanpati Marketiers Private Limited Vs. Deputy Commissioner of Income - Tax, Central Circle 1(4) (Special Civil Application No.5483 of 2017 decided on 26.04.2017). 6 . 1 The need to issue another show cause notice dated 04.12.2018 (Annexure P/6) arose due to noting of the competent authority that due and sufficient opportunity was not afforded to petitioner and the proposal of the assessing officer was not preceded by production and inspection of books of accounts of the assessee. 7. The aforesaid authorized representative of petitioner submitt....

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....From a bare perusal of aforesaid material placed on record not only by the Revenue but also by the assessee in their rejoinder and as well as application for taking documents on record (I.A. No.4777/2019), it is vivid that due and sufficient opportunity was afforded to petitioner before the sanction was granted for special audit. So far as the application of mind is concerned, it is obvious from the material on record, especially the note-sheet that the competent authority has duly applied its mind by taking into account not only the response of the petitioner-assessee but also comments of the Revenue. The object behind special audit contained in sub-section (2A) of Section 142 of IT Act has also been kept in mind by the competent authority....

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....en sub-section (2A) was not incorporated held that even in the absence of any express provision affording opportunity of being heard to the assessee, such benefits should be impliedly read into the same. Later, reasonable opportunity clause was included by way of amendment of sub-section (2A) w.e.f. 01.04.2023. The judgment in Sahara India (Firm), Lucknow (supra) is of no avail to petitioner since in the present case it is clear from the attending facts that due and sufficient opportunity of being heard was afforded to petitioner. 10.1 The other decision relied upon by petitioner is of Division Bench of Delhi High Court in Delhi Development Authority (supra) where interference was made in an order passed u/s. 142 (2A) by recording a findin....