M/S Hyaline Glass Works Pvt Ltd. Shri Laxmi Narayan Shivhare vs. Deputy Commisioner Of Income Tax Central Bhopal

-: 3:- W.P. No.15079/18, W.P. No.15084/18 & W.P. No.15091/18 HIGH COURT OF MADHYA PRADESH, JABALPUR BENCH INDORE (Division Bench) ( Hon'ble Shri Justice P.K.Jaiswal and Hon'ble Shri Justice Vivek Rusia) W.P. No.15079/2018 (M/s. Hyaline Glass Works Pvt. Ltd. V/s. Dy. Commissioner of Income Tax Central, Bhopal) W.P. No.15084/2018 (Smt. Anjana Shivhare W/o Haribabu Shivhare V/s. Dy. Commissioner of Income Tax Central, Bhopal) W.P. No.15091/2018 (Smt. Kamla Shivhare W/o Laxminarayan Shivhare V/s. Dy. Commissioner of Income Tax Central, Bhopal) Indore, Dt.07.09.2018 Shri Sumeet Neema, learned Senior Counsel with Shri Ayush Gupta, counsel for the petitioners. Ms. Veena Mandlik, learned Counsel for the respondents. Heard. The issue involved in these Writ Petitions is squarely covered by the order dated 06.09.2018 passed in W.P. No.7999/2018 (Ramswaroop Shivhare V/s. Dy. Commissioner of Income Tax Central Bhopal & others). Para 14 to 19 of the order dated 06.09.2018 passed in W.P. No.7999/2018 reads as under :- 14. As per Section 142(2A) of the Act the only requirement is that if in the opinion of the -: 3:- W.P. No.15079/18, W.P. No.15084/18 & W.P. No.15091/18 Assessing Officer the case is required to be audited by Special Auditor than the Assessing Officer must convey the opinion to the Principle Commissioner of Income Tax and after the approval is granted by the Principle Commissioner of Income Tax then Assessing Officer may issue the direction for Special Audit. The direction for Special Audit is subjected to approval of Principle Commissioner of Income-tax hence it is the Principle Commissioner of Income-tax who has to apply the mind before granting the approval for Special Audit on the proposal of Assessing Officer, therefore, the authority taking the substantive decision for Special Audit is Principle Commissioner of Income-tax. Hence, the Principle Commissioner of Income-tax is required to grant an opportunity to assessee or on the basis of opportunity granted by the assessing officer and based on the material available on record, the Principle Commissioner of Income-tax has to approve the proposal of the Assessing Officer if the Principle Commissioner deems it fit. 15. The requirement of pre-decisional heairng was met as Principle Commissioner of Income-tax (Central), Bhopal, before deciding the issue of approval for Special Audit gave the opportunity to the petitioner. 16. The petitioner has not made any objection regarding procedure followed by the Assessing Officer or by the Principal Commissioner of Income Tax (Central), Bhopal, in the entire process of Special Audit till the completion of Special Audit and only after the fact that the accounts have been verified by the Special Auditor, the present writ petitions have been filed on 04.04.2018. On 13.08.2018, it was pointed out that no assessment order was passed and the period for assessment is going to expire today, ie., 13.08.2018, we issued notice to the Revenue and directed that the assessment proceedings may go on, but no final order shall be passed without the leave of this Court. 17. On the next date of hearing, learned counsel for the Revenue has submitted that the assessment order has been passed on 13.08.2018 and the petitioner is having statutory remedy of appeal before the Commissioner of Income-tax and submitted that the writ petitions are rendered infructuous. 18. Considering the law laid down by the Apex -: 3:- W.P. No.15079/18, W.P. No.15084/18 & W.P. No.15091/18 Court in the case of Sahara India (Firm) V/s. Commissioner of Income-tax, Central – I (supra), so also the fact that Principal Commissioner of Income-tax granted two opportunities to the petitioner vide show cause notice dated 30.11.2017 and letter dated 11.12.2017, we are of the view that sufficient compliance of the proviso to Section 142(2A) has been made. We are also unable to persuade ourselves to agree with the proposition canvassed by the learned Senior counsel for the assessee. 19. In the result, the writ petitions filed by the petitioner have no merit and are, accordingly, dismissed. The order dated 06.09.2018 passed in W.P. No.7999/2018 shall apply mutatis mutandis in these Writ Petitions also, therefore, for the reasons assigned in the W.P. No.7999/2018, we dismiss these Writ Petitions on the same terms and conditions as mentioned in W.P. No.7999/2018. (P.K.Jaiswal) (Vivek Rusia) Judge Judge ns. Digitally signed by Neeraj Sarvate Date: 2018.09.17 11:34:01 +05'30'