Itxa/977/2007 Of The Commissioner Of Income Tax-5 v. Mrs. Rupal A Ganatra

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.977 OF 2007 The Commissioner of Income Tax V/s.Smt. Rupal A. Ganatra ..Appellant. ..Respondent. AND INCOME TAX APPEAL NO.978 OF 2007 The Commissioner of Income Tax V/s.Ashish GanatraMr. P.S. Sahadevan for appellant. ..Appellant...Respondent. Mr. Rajeev Kumar i/b. Amit Shethi for respondent. CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ. DATED : 31ST JULY, 2009. P.C. :- 1.Heard learned counsel for the parties. The appeals were admitted on the following substantial question of law:- " The substantial question of law arises in the present appeal is regarding the true scope and correct interpretation of Sec. 158BBC of the Income Tax Act, 1961 and other provisions of the Income Tax Act and in view of the provision of Sec.292B of the Act and in the light of the narration in the communication dated 13/01/1997 and 28/02/1997 from the records of the C.I.T., the Tribunal is right in holding that the Block Assessment order dated 26/08/1997 was invalid. 2.The revenue has challenged the order 8/12/2006 of the Tribunal stating that the view taken by the Tribunal is not correct. In reply, learned counsel for the respondent has placed reliance on section 142 (2A) of the Income Tax Act to support the order of the Tribunal. The said section reads as under:- " If, at any stage of the proceedings before him, the [Assessing] Officer, 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, with the previous approval of the [Chief Commissioner or Commissioner], direct the assessee to get the accounts audited by an accountant, as defined in the Explanation below sub-section (2) of section 288, nominated by the [Chief Commissioner or Commissioner] in this behalf and to furnish a report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed and such other particulars as the [Assessing] Officer may require. " 3.He further brought to our notice the finding recorded by the Tribunal after considering the sweep of above section 142 (2A) of the Act, which reads as under:- “ in view of this, it is clear that there was no approval of CIT authorising the assessing officer to appoint Special Auditor on 13/01/1997 and hence the appointment of Special Auditor made by him on 13/01/1997 was without authority and hence void in view of Hon’ble jurisdictional High Court and of Hon’ble Apex Court. ” 4.Having examined section 142(2A) and the above findings recorded by the Tribunal, it cannot be disputed that it was necessary to have prior approval of the Chief Commissioner. The said approval is mandatory. The Tribunal has taken note of factual aspect of the matter and recorded as under:- "We find that there is no dispute regarding the fact that the appointment of the Special Auditor was made by the assessing officer on 13/01/1997 and the approval in writing was given by the learned CIT on 28/02/1997. " 5. Having seen the above finding of fact based on evidence, it is clear that the approval was granted after the expiry of the period. In the result, no substantial question of law arise in the appeals and the same are dismissed with no order as to costs. (J.P.DEVADHAR,J.) (V.C.DAGA, J.)