M.H.S.Ansari, J. - (1.) Brief facts of the case are that the petitioner is a civil contractor carrying on construction work. On November 6, 1996, and January 24, 1997. the business and residential premises of the petitioner were searched under Section 132(1) of the Income-tax Act. A number of documents including account boks, computer floppies relating to the accounts of the assessee for various branches and various accounting periods were seized. Proceedings were initiated by the assessing authority for the block assessment period April 1, 1986 to January 24, 1997, under Section 158BC. The return for the block period was filed by the petitioner-assessee on October 13, 1997. Thereafter, the petitioner filed Writ Petition No. 72 of 1998 questioning the jurisdiction of the assessing authority to make the assessment under Section 158BC, when the time limit for completion of the said block assessment was said to have expired on November 30, 1997, under Section 158BE. This court, by an order dated January 8, 1998, directed the filing of affidavits and issued ad interim directions as under : "Any assessment made by the Assessing Officer under Section 158BC of the Income-tax Act, 1961, shall not be given effect to except with the leave of the court. It is further directed that the said order for assessment shall be subject to such further order that may be passed on this application."
(2.) The present writ application is filed questioning the action of the assessing authority nominating an accountant to audit the accounts of the petitioner under Section 142(2A) of the Income-tax Act. An order in that behalf giving requisite approval for the action of the assessing authority was passed by the Commissioner by order dated January 8, 1998. This purported approval of the Commissioner in his order dated January 8, 1998, has been assailed in the above writ application.
(3.) According to the petitioner there is no warrant for nominating the accountant, that the condition precedent for the exercise of the said power, viz., formation of an opinion by the assessing authority is absent as the assessing authority has no occasion to examine the accounts for the relevant block period. The impugned approval, it is contended is mechanical and without application of mind besides being in violation of the principles of natural justice inasmuch as the petitioner was not heard at or before grant of approval. The further submission is that there is no necessity for nominating an accountant under Section 142(2A) as the petitioner's accounts have already been audited under Section 44AB. The order of approval passed by the Commissioner is mala fide and that the fixation of the fee of the accountant at Rs. 6 lakhs under Section 142(2D) is highly exorbitant besides being illegal. The main prayer, however, in the writ application is with regard to the constitutional validity of Section 142(2A) of the Income-tax Act.;