Calcutta H.C : The petition shall be served upon the learned Attorney-General of India by the learned advocate on record for the writ petitioner and shall file affidavit of service at the time of hearing.

High Court Of Calcutta

Peerless General Finance And Investment Co. Ltd. vs. DCIT & Ors.

Section 142(2A)

K.J. Sengupta, J.

Writ Petn. No. 751 of 1998

16th April, 1998

Counsel Appeared

Dr. D. Pal and P.K. Pal, with Ms. M. Seal, for the Petitioner : R.N. Mitra & J.C. Saha, for the Respondent

JUDGMENT

K.J. SENGUPTA, J. :

By consent of the parties this writ application is treated as a new application. The respondents shall file affidavit- in-opposition by 14th May, 1998, reply by 8th June, 1998. The matter will appear in the list on the top before the appropriate Bench on 11th June, 1998. Since the vires of s. 142(2A) of the IT Act, 1961, have been challenged in this petition, a notice together with a copy of the petition shall be served upon the learned Attorney-General of India by the learned advocate on record for the writ petitioner and shall file affidavit of service at the time of hearing.

In the meantime, there will be an order in terms of prayer (f) of the petition. This interim order will continue till 18th June, 1998, or until further order, whichever is earlier. The interim order is passed for the following reasons : In my prima facie view the impugned order which is sought to be challenged asking the writ petitioner to get its accounts audited in terms of the aforesaid s. 142(2A) is not passed in consonance with the provisions of the aforesaid section. From the plain reading of the impugned order, it does not appear to me that the AO has formed his opinion as to necessity for getting the accounts verified under the aforesaid section, nor it appears from the impugned order, any prior approval was obtained from the Chief CIT or CIT. An order dt. 18th March, 1998, has been passed by the CIT, whereby he has nominated G.P. Agarwal & Co., to act as an accountant within the meaning of sub-s. (2A) of s. 142 of the IT Act, 1961. In my view, this cannot be termed as an approval as required under the aforesaid section. Besides, the vires of the aforesaid section has also been challenged. Therefore, in my opinion, there is a prima facie strong case made out by the petitioner which is required to be gone into by this Court finally after completion of filing of affidavits. Mr. Mitra, learned lawyer, has drawn my attention to the orders passed by Justice M. H. S. Ansari on the very same subject-matter, whereby the auditing job was not stayed by this Court and the auditing was allowed to be continued. I have not been shown the nature of the impugned order challenged in that petition. Therefore, unless the nature of the impugned order in that case is placed before me, I cannot follow the interim order passed by Justice Ansari on 28th Jan., 1998, and on 10th March, 1998. As I have already observed prima facie, the impugned order is not in accordance with the provision of the aforesaid s. 142(2A). I think it fit to grant the aforesaid interim relief.

[Citation : 234 ITR 481]

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