Allahabad H.C : An order dt. 24th Jan., 1997, passed by the Asstt. CIT, Central Circle-III, Lucknow, respondent No. 2, under sub- s. (2A) of s. 142 of the IT Act, 1961, hereinafter called the “Act”, is under challenge in these petitions, under Art. 226 of the Constitution of India, which are before the Court for admission. Sri Bharat Ji Agarwal, learned senior advocate appearing for the respondents, raises a preliminary objection regarding the maintainability of the writ petitions at Allahabad.

Counsel Appeared

Devendra Pratap & S.E. Dastur, for the Petitioners : Bharat Ji Agarwal, for the Respondents

JUDGMENT

D.S. SINHA, J. :

An order dt. 24th Jan., 1997, passed by the Asstt. CIT, Central Circle-III, Lucknow, respondent No. 2, under sub- s. (2A) of s. 142 of the IT Act, 1961, hereinafter called the “Act”, is under challenge in these petitions, under Art. 226 of the Constitution of India, which are before the Court for admission. Sri Bharat Ji Agarwal, learned senior advocate appearing for the respondents, raises a preliminary objection regarding the maintainability of the writ petitions at Allahabad. He submits that the cause of action for instituting the writ petitions arose within the territorial jurisdiction of the Lucknow Bench of the Court inasmuch as the impugned order was passed at Lucknow; and that no part of the cause of action arose outside the jurisdiction of the Lucknow Bench of the Court. Thus, according to learned counsel, the writ petitions are cognizable by the Lucknow Bench alone. Countering the submission of learned counsel for the respondents, Sri S.E. Dastur, learned senior advocate representing the petitioners, submits that the writ petitions are maintainable at Allahabad also in view of the fact that the order of “previous approval” for passing the impugned order, envisaged in sub-s. (2A) of s. 142 of the Act, was accorded by the CIT(Central), respondent No. 1, Kanpur, which is within the territorial jurisdiction of the Court at Allahabad.

In view of the decision of the Supreme Court rendered in Nasiruddin vs. State Transport Appellate Tribunal AIR 1976 SC 331 which, as pointed out by the Supreme Court in its later decision rendered in U.P. Rashtriya Chini Mill Adhikari Parishad vs. State of U.P. AIR 1995 SC 2148, still holds good, and no other binding precedent having been placed before the Court, it cannot be gainsaid that if the cause of action for maintaining the petitions is held to have wholly arisen at Lucknow, the petitions will be cognizable by the Lucknow Bench of the Court; and that if it is found that the cause of action to maintain the petitions arose partly at Lucknow and partly at Kanpur the petitions would be cognizable at both the places, namely, Lucknow and at Allahabad, and in such a situation the petitioners being dominus litus will have the choice to maintain the petitions either at Lucknow or Allahabad. Thus, the real question which the Court is called upon to decide, in substance, is as to when and where the cause of action to maintain the petitions against the order of respondent No. 2, dt. 24th Jan., 1997, passed in exercise of the powers under sub-s. (2A) of s. 142 of the Act, arose.

In the writ petitions, the petitioners have prayed for the following reliefs : “(a) that this Court may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Art. 226 of the Constitution of India calling for the records of the first petitioner’s case and, after examining the legality and validity thereof, pass appropriate orders and directions to quash and set aside the impugned order dt. 24th Jan., 1997, being Ext. ‘X’ hereto; (b) that this honourable Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions, under Art. 226 of the Constitution of India, ordering and directing respondent No. 2 to withdraw forthwith the impugned order dt. 24th Jan., 1997, being Ext. ‘X’ hereto; (c) that this honourable Court may be pleased to declare the provisions of s. 142(2A) as violative of Arts. 14 and 19 of the Constitution of India; (d) that pending the hearing and final disposal of the present petition respondent No. 2, his servants and agents, be restrained by an order and injunction of this honourable Court from taking any steps in furtherance of or pursuant to the impugned order dt. 24th Jan., 1997, being Ext. ‘X’ hereto ; (e) for ad interim reliefs in terms of prayer (d) above; (f) for costs of this petition; (g) for such further writs, orders and directions as the nature and circumstances of the case may require.”

It is to be noticed that the relief claimed in the petitions is against the order dt. 24th Jan., 1997, passed by respondent No. 2, at Lucknow, and no relief has been prayed for quashing the order of “previous approval” passed by respondent No. 1, under sub-s. (2A) of s. 142 of the Act. For asserting that cause of action to maintain the petitions arose at Kanpur which falls within the territorial jurisdiction of the Court at Allahabad the attention of the Court in invited to grounds (u) and (v) raised in the petition in support of the reliefs claimed. Grounds (u) and (v) run as under : “(u) Because the sanction allegedly granted by respondent No. 1 to the issuance of the impugned order is vitiated by total non-application of the mind to the factors precedent to the exercise of jurisdiction under s.142(2A). The petitioners submit that the sanction was granted mechanically and/or dictated by extraneous consideration and the impugned order that has been passed pursuant to the mechanical sanction must be set aside. (v) Because no reasonable person properly instructed could have ever granted his sanction to the issuance of the impugned order. The petitioners, therefore, submit that the entire proceedings are vitiated in the absence of a valid sanction and the impugned order must be set aside.” A bare perusal of the grounds (u) and (v), extracted above, reveals that the main focus of attack is on the validity of the impugned order, and not on the order of the CIT according “previous approval” to the order. It is true that for attacking the impugned order, the petitioners have stated that “previous approval” granted by respondent No. 1 was mechanical and dictated by extraneous considerations, and for that reason the entire proceedings are vitiated. Therefore, the impugned order must be set aside. The submission of the petitioners pointing out infirmities in according the “previous approval” by respondent No. 1 may constitute the foundation of the ground of challenge to the impugned order. The infirmities in according the “previous approval” themselves do not furnish the cause of action to maintain the petitions. The cause of action to the petitioners arose on passing the impugned order, and not merely on grant of “previous approval” by respondent No. 1 for passing the impugned order.

Learned counsel appearing for the petitioners draws the attention of the Court also to the averments made in para. 4 of the rejoinder-affidavits filed in answer to the counter-affidavits filed on behalf of respondents Nos. 1 and 2. The averments made in these paragraphs too enumerate various infirmities in the “previous approval” granted by respondent No. 1. The Court refrains from expressing any opinion on the merits of various infirmities alleged to have been committed by respondent No. 1 while granting “previous approval” as it may prejudice the case of the petitioners against the impugned order.

10. In the context of the controversy, it would be apposite to notice the provisions of sub-s. (2A) of s. 142 of the Act which reads as below : “(2A) If, at any stage of the proceedings before him, the AO, 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 CIT or CIT, direct the assessee to get the accounts audited by an accountant, as defined in the Explanation below sub-s. (2) of s. 288, nominated by the Chief CIT or CIT 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 AO may require.”

11. Sec. 142(2A) of the Act ordains the AO that before directing the assessee to get the accounts audited by an accountant, as defined in the Explanation below sub-s. (2) of s. 288, nominated by the Chief CIT or CIT in that behalf, he should form an informed objective opinion that it is necessary so to do, keeping in view the nature and complexity of accounts of the assessee and the interests of the Revenue. It also mandates the AO to obtain approval of the Chief CIT or CIT before directing the assessee to get the accounts audited by an accountant. The twin requirements of forming of an informed objective opinion by the AO and prior approval of the Chief CIT or CIT are conditions precedent for passing an order in exercise of powers under s. 142(2A) of the Act. In the absence of any of the two conditions the order of the AO will be contrary to law. In the exercise of powers under sub-s. (2A) of s. 142 of the Act there are three consecutive stages, namely, (a) formation of opinion by the AO; (b) grant of approval by the Chief CIT or CIT; and (c) order by the AO directing the assessee to get the accounts audited by the defined accountant. Stages (a) and (b) pertain to the mode and manner in accordance with which the AO will exercise the power of passing the order directing the assessee to get the accounts audited by the designated accountant. Illegality in the mode and manner of exercise of power to pass an order is a procedural illegality. It may render the order bad in law. It is the illegal order which results in pain and injury giving rise to cause of action, and not the illegality of the mode and manner of exercise of power to pass the order. At stages (a) and (b) there will be no occasion for the assessee to be aggrieved. It is at stage (c), i.e., when the order directing audit of accounts by the specified accountant is passed by the AO, that the assessee gets aggrieved. Unless the AO directs the assessee to get the accounts audited, the assessee will have no cause of distress or injury. In the absence of a direction for getting the accounts audited by the nominated accountant, neither mere formation of requisite opinion by the AO nor grant of approval by the Chief CIT or CIT can cause any pain or injury calling for redress. Therefore, in reference to the context, it is the act of the AO directing audit by the defined accountant and the resultant injury which will furnish cause of action to the assessee. The cause of action will arise whenever and wherever the order giving the direction to the assessee is passed by the AO.

12. Respondent No. 2 passed the order directing the assessee to get the accounts audited by the nominated accountant on 24th Jan., 1997, at Lucknow, and the alleged resultant injury to the petitioners was caused at Lucknow. Thus, there is no escape from the conclusion that the cause of action to maintain these petitions arose on 24th Jan., 1997, at Lucknow when and where respondent No. 2 passed the impugned order. The grant of “previous approval” by respondent No. 1 at Kanpur, is wholly irrelevant for the purposes of determining the cause of action inasmuch as grant of “previous approval” by respondent No. 1 did not furnish any cause of action to the petitioners for maintaining these petitions. For what has been said above, the Court is clearly of the opinion that the cause of action to maintain these petitions arose within the territorial jurisdiction of the Lucknow Bench of the Court and that no part of the cause of action arose within the territorial jurisdiction of the Court at Allahabad. The objection of the respondents regarding the maintainability of the petitions at Allahabad is upheld. In the result, the petitions are dismissed as not maintainable for want of territorial jurisdiction. However, it is clarified thatdismissal of these petitions shall not preclude the petitioners from filing fresh petitions before the Lucknow Bench of the Court, if there is no other impediment of law.

[Citation : 246 ITR 475]