K.J. Shetty, C.J. - (1.) SWADESHI Cotton Mills Company Limited (" the Company ") is the petitioner in this writ petition. The company has got branches at Kanpur, Naini, Pondicherry, Maunath Bhanjan, Rai Bareilly and Udaipur. Its registered office is at Kanpur. Each branch has been maintaining separate books of account. In December, 1975, the business premises and registered office of the company were searched by the Income-tax Department under Section 132(1) of the Income-tax Act (for short "the Act"). The authorities seized voluminous records and account books and removed them in five almirahs and two steel trunks.
(2.) THE Inspecting Assistant Commissioner of Income-tax, D-Range, Kanpur, examined the account books seized. He found that the accounts were of a complicated nature. Accordingly, he submitted a report to the Commissioner of Income-tax, Kanpur, seeking approval for special audit as required under Section 142(2A) of the Act. He had suggested in his report that the chartered accountant appointed for that purpose may have to visit various units of the company and get the accounts verified there itself. Accepting the aforesaid report, the Commissioner of Income-tax made an order as follows : " On a careful consideration of the facts of the case, I agree with you that in view of the nature and complexity of accounts of the case and in the interests of the Revenue, the accounts of M/s. Swadeshi Cotton Mills Co. Ltd., Kanpur, including those of its branches for the assessment years 1974-75 and 1975-76 should be audited by an accountant as contemplated under Section 142(2A) of the Income-tax Act, 1961. I hereby accord statutory approval for the same. Sd/- M. D. Verma,        Commissioner of Income-tax, Kanpur. "             Thereafter, a special auditor was nominated fixing his remuneration. The company, challenging the validity of the order appointing the special auditor, has preferred this petition raising several questions including that of the validity of Section 142 (2A), (2B), (2C) and (2D) of the Act. But, at the time of hearing, learned counsel for the petitioner submitted that he is pressing only one question.
(3.) HE urged that there was absolutely no material before the Inspecting Assistant Commissioner or before the Commissioner of Income-tax to hold that the accounts of the company are of such a nature and complexity which called for special audit. HE also submitted that the accounts of the company had been regularly audited by qualified auditors and there was no reason at all to find fault with the system of auditing. As a preliminary to the consideration of the contention urged, we may deal with the relevant provision of the Act. Section 142 of the Act has been amended by adding Sub-sections (2A), (2B), (2C) and (2D) by the Taxation Laws (Amendment) Act, 1975 (41 of 1975). It has come into force with effect from April 1, 1976. Under Sub-section (2A), the Income-tax Officer has been empowered to direct an assessee in a case where the nature and complexity of the accounts and the interests of the Revenue so require, to get his accounts audited by a chartered accountant and furnish a report of such audit in the prescribed manner. Such a direction can be issued only with the prior approval of the Commissioner. The chartered accountant for the purpose of conducting the special audit is also to be nominated by the Commissioner. The expenses of and incidental to, including the remuneration of the special auditor, must be paid by the assessee. The report of such audit has to be submitted in the prescribed form duly signed and verified by such auditor.;