Kalyan Jyoti Sengupta J. - (1.) By the instant writ application the petitioner has basically challenged an order dated June 13, 2003, passed by the Commissioner of Income-tax, Calcutta-700 021, appointing Shri P. K. Agarwala as a special auditor under Section 142(2A) of the Income-tax Act, 1961 (hereinafter referred to as "the said Act"), and also incidentally the vires of Section 142(2A) of the said Act in so far as it covers the same field as Section 44AB of the said Act as regards its constitutionality. However, at the time of arguments the question of vires was not pressed by learned senior counsel Dr. Pal. The direction for filing of affidavits was given on two occasions, to understand the case of the Revenue, however, no affidavit was filed, so it was decided the matter should be heard without any affidavit-in-opposition.
(2.) The short facts of the case are that the petitioner is carrying on banking business after having been formed under the Co-operative Societies Act, 1912. The members and/or shareholders of the petitioner are the Government of West Bengal, holding about 38 per cent. shares and balance are being held by the different District Central Co-operative Banks and other co-operative societies. The petitioner is also a scheduled bank within the relevant provisions of the Banking Regulation Act and is being directly controlled by Reserve Bank of India and also by National Bank for Agriculture and Rural Development (NABARD). The books of account and documents of the petitioner are regularly and systematically audited by both the Co-operative Audit Directorate, Government of West Bengal, as well as by the auditor under Section 44AB of the said Act.
(3.) In almost all the relevant assessment years the petitioner has been enjoying exemption from paying tax on the income under the provision of Section 14(3)(i)(a) of the Indian Income-tax Act, 1922, then prevailing, now under Section 81(1)(a) of the present Act. When the petitioner was reasonably expecting refund of a sum of Rs. 1,40,27,398, Rs. 1,45,31,755, Rs. 92,26,412, Rs. 1,01,94,817 and Rs. 1,59,24,661, respectively, for the assessment years 1996-97 to 2000-01, which were duly and appropriately adjudged to be refunded, by the appropriate income-tax official, the Assessing Officer all of a sudden decided to reopen the aforesaid assessments for the relevant periods. The petitioners duly replied to the notices under Section 148 of the aforesaid Act and met queries and requisitions made by him in connection with the re-opening of assessment under Section 147 of the said Act.;