Om Prakash, J. - (1.) The petitioner, a limited company, seeks a writ in the nature of certiorari for quashing the order dated February 17, 1984, annexure 3 to the writ petition, passed by the Inspecting Assistant Commissioner of Income-tax (Assessment). Upon a perusal of annexure 3 to the writ petition, it appears that the Inspecting Assistant Commissioner (Assessment) while issuing directions regarding audit for the assessment years 1979-80 to 1981-82 was of the view that special audit of the account books of the assessee was necessary. He accordingly directed the petitioner to get its account books audited by the special auditor, namely, M/s. S. Vaish and Company.
(2.) The contention of the petitioner is that the Inspecting Assistant Commissioner (Assessment) acted in contravention of the legal provisions and instructions issued by the Department in directing the petitioner to get its account books audited by the special auditor. We have heard the rival submissions of the parties at some length. We are not without guidelines on the point as to, in which circumstances, the assessee can be called upon to get its account books audited by a special auditor. The matter has come up before this court time and again. The judgment dated March 3, 1987, given in Swadeshi Cotton Mills Company Ltd. v. CIT [1988] 171 ITR 634 by a Division Bench of this court is on the same point. Having considered the relevant legal provisions and the instructions issued by the Department, the Bench, in the case referred to above, held that it is not the subjective satisfaction of the assessing authority but the objective assessment that is required on the question, whether or not special audit is necessary under Section 142(2A) of the Income-tax Act, 1961. It is also held by the Bench on the question of complexity of the account books that that would not depend on the fact whether the account books are, or can be, comprehended by the authority, but the accounts should be of a complex nature otherwise. Applying the decision to the case on hand, we are of the considered view that the direction issued by the Inspecting Assistant Commissioner (Assessment) to the petitioner, vide the impugned order, annexure 3 to the writ petition, to get its account books audited by the nominee of the Commissioner of Income-tax, is not erroneous. It has come on record that the assessee has filed a provisional balance-sheet and provisional profit and loss account before the Inspecting Assistant Commissioner (Assessment). This fact implies that the assessee was not sure about the correctness of the account books. Otherwise, there was no need for the assessee to name the balance-sheet and profit and loss account as provisional. Naming the balance-sheet and the profit and loss account as provisional left scope for the assessee to correct them in future. In annexure 1 to the counter-affidavit also which is a letter addressed to the Commissioner of Income-tax, Kanpur, by the Inspecting Assistant Commissioner (Assessment), for seeking his approval, it is stated that the accounts maintained by the assessee are very complex as more than 150 sets of accounts for different units have been maintained which show lots of inter-unit transactions and (the accounts produced) before him were not reliable or creditworthy and, therefore, he called upon the petitioner to get them audited by the nominee of the Commissioner of Income-tax. Which books of account are of complex nature has been dealt with by the Central Board of Director Taxes which issued instructions in this regard and which have been elaborately stated in the case of Swadeshi Cotton Mills Company Ltd. [1988] 171 ITR 634. One of the circumstances Stated in the instructions is that where the Income-tax Officer has any information necessitating a special audit, directions can be issued for special audit. From the facts of the case, especially that the assessee furnished only a provisional balance-sheet/profit and loss account, it can be said that the Inspecting Assistant Commissioner (Assessment) did receive information that the case necessitates special audit.
(3.) It is submitted by Sri Srivastava, learned counsel for the petitioner, that after the impugned order, annexure 3 to the writ petition, the petitioner got its account books relating to the assessment years 1979-80 and 1980-81 audited by the chartered accountants, Sri P. L. Tandon and Co., and the audit of the books for these two years has been concluded. The account books relating to these two years so audited may be produced before the Inspecting Assistant Commissioner (Assessment) who will examine them and if he feels satisfied with the correctness thereof, then he may modify his earlier order after obtaining approval from the Commissioner and may absolve the petitioner from getting such books audited by the nominees of the Commissioner.;