M/s. Unitech Limited Vs DCIT (ITAT Delhi)
First proposition, which was contested before the Tribunal for the assessment year 2009-10 was that order passed under section 142(2A) of the Act was cryptic and non-speaking order, because no specific instance of complexity with regard to the books of accounts were pointed out in the said order. It was also contended that objections raised by the assessee against appointment of such auditor were not considered or discussed in the order passed under section 142(2A) of the Act. The AO while exercising power under section 142(2A) was required to assign reason and it should be based on objective criterion and not on the basis of subjective satisfaction. In the words, the AO ought to have visualized the complexity of accounts and compelling circumstances for exercising such power. It was also contended that though while making a proposal for approval, an opportunity was provided to the assessee, but after submitting explanation no opportunity was granted to the assessee, nor any reasons were assigned. The proposal was sent without communicating to the assessee and the ld.Commissioner has approved the proposal. Thereafter, an order under section 142(2A ) was passed running into few lines. The question was also raised before the Tribunal that it has no jurisdiction to entertain objection of the assessee against appointment of special auditor. The Tribunal after taking into consideration time limit provided in section 153(1) of the Act for passing assessment order observed that the assessment order in assessment year 2009-10 was to be passed before 31.12.2011 whereas, it was passed on 1.82012. The special auditor was appointed on 8.12.2011 just 23 days prior to expiry of limitation for passing the assessment order. Thus, in this given factual matrix, the Tribunal has considered that had the case was not referred for special auditor, the assessment would have become time barred and in order to gain time, a reference for appointment of special auditor was made.
