RAJEEV KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) Petitioner's premises was searched by the Income Tax Authorities under Section 132 of the Income Tax Act 1961 on 31.10.2009 and just before seven days of expiry of the period of limitation of making assessment, which would have expired on 31st December, 2011 the assessing officer proceeded to invoke the provisions under section 142(2A)of the Income Tax Act of 1961 to refer the matter to the special audit which extends the period of limitation for making assessment order. The assessing officer's forming opinion was forwarded to the Commissioner of Income Tax for approval as required under Section 142 (2A). The Commissioner of Income Tax accorded approval on 22nd December, 2011. Hence this writ petition has been preferred by the writ petitioner.

(3.) It will be appropriate to narrate the facts of the case in brief. As we have already noticed that search was conducted in the premises of the writ petitioner on 31st October, 2009 and according to the writ petitioner it was continued and again search was conducted on 26th December, 2009. Since, assessment year would have come to an end on 31st March, 2010 and, therefore, from 31st March, 2010 the assessing officer in this proceeding could have passed the order of block assessment within 21 months from 31st March, 2010. This limitation was going to expire on 31st December, 2011. Inspite of the fact the petitioner was served with the first notice under provision of Section 153A of the Income Tax Act, 1961 only after 17 months, on 30th March, 2011. The petitioner submitted to the assessing officer that he has nothing to disclose and has already submitted return which may be treated to be a return in the present proceeding. The assessing officer received the Appraisal Report by the investigation team on 12th May, 2011. The assessing officer then gave another notice to the writ petitioner on 27th May, 2011 and issued a questionnaire on 8/9th September, 2011. Since the petitioner did not answer the questionnaire therefore, anothr letter was issued to petitioner on 7th October, 2011. The petitioner then submitted reply to the questionnaire on 25th October, 2011. The assessing officer was of the view that answers are not complete and requires detailed explanation, therefore, the assessing officer issued another letter to the petitioner on 17th November, 2011 which was to be responded by the petitioner by or on 27th November, 2011. However, without waiting for the supplementary/additional reply of the writ petitioner the assessing officer on 25th November, 2011 itself proceeded to consider the matter for referring the case to the Special Audit u/s 142(2A) of the Income Tax Act. However, petitioner submitted reply to the queries in response to the assessing officer's letter dated 27.11.2011 and 28.11.2011. It will be worthwhile to mention by this time that the petitioner's stocks seized in search and seizure operation were not opened and, therefore, petitioner's accounts were not down loaded which were alleged to have been lying in the hard disc of the petitioner's computer. With these facts, learned counsel for the petitioner vehemently submitted that when there was a statutory period of limitation for making assessment order in the proceeding u/s 153 A then in that situation the Revenue Authorities proceeded casually and when found that period of limitation is about to expire they resorted method to refer the matter to the Special Auditor for special audit and, therefore, in fact sending the matter to the special audit is nothing but for co-lateral purpose.