Dhanesh Gupta And Co. vs Union Of India (Uoi) And Ors. ...
2004 Latest Caselaw 1171 Del

JUDGMENT

B.C. Patel, C.J.

1. These petitions are essentially against the order made by CIT under the provisions contained in Section 142(2D) of the IT Act, 1961 (hereinafter referred to as the Act). The order was made on 16th Feb., 2000. It may be noted that an order was made earlier under Section 142(2A) of the Act whereby a chartered accountant was appointed as a special auditor to examine the matters and to submit a report. It is mentioned in the order that a search under Section 132 of the Act was conducted on 21st Jan., 1997. It was felt that the books of account and documents seized from the premises of the assesseds did not give a true and correct picture of the income of the assesseds for the years covered under the block period. The reasons have been given by the officer in detail and for the said reasons that the accounts of the assesseds being of a complex nature, a special auditor was appointed. The special audit was required for the following purposes :

(a) To prepare a receipt and payment account of all persons of this group for each year covering the entire block period based on the respective bank accounts and seized papers.

(b) To verify the transactions of respective individuals in the books of account of the companies managed and controlled by this group to ascertain that the moneys introduced in the said companies or firms are from confirmed sources or otherwise.

(c) To find out whether entries in the bank accounts are in conformity with books of account maintained or not.

(d) To ascertain that the assets seized as detailed in the seized annexure are reflected by the abovementioned assesseds in their books or in their return of income-tax.

(e) To ascertain and quantify the amount spent year-wise and assessed-wise in respect of various landed properties and towards construction of houses with reference to the seized material.

(f) To find out whether the IVPs, KVPs and FDRs made in previous years are from accounted or unaccounted income.

(g) To verify the transactions covered under the three questionnaires dt. 12th June, 1998, 29th June, 1998 and 1st Sept., 1998, issued to the assesseds for ascertaining the unaccounted transactions.

(h) To comment upon maintenance of accounts and, if possible, to indicate whether accounts have been maintained in the regular course of business or not.

2. M/s Dhanesh Gupta & Co. was nominated as an special auditor. After the exercise was completed by the said chartered accountant, the said chartered accountant submitted a bill, a copy of which is placed on record at p. 34 of WP(C) 1775 of 2000, raising a bill of Rs. 9,81,540 including service-tax: After the bill was submitted, the order was made under Section 142(2D) of the Act on 16th June, 2000, Annex. F, which is the order in challenge before this Court. It appears that an opportunity was given to the assessed as well as the auditors vide letter dt. 19th Nov., 1999, to discuss the matter regarding fixation of the remuneration of the auditor. The order speaks about the maintenance of a diary of work done with details of time allocation of the audit work. The CIT after careful consideration of all the aspects of the cases and work done by the auditors fixed the fees at Rs. 5 lakhs. Section 142(2D) reads as under:

"(2D) The expenses of, and incidental to, any audit under Sub-section (2A) including the remuneration of the accountant shall be determined by the Chief Commissioner or Commissioner which determination shall be final and paid by the assessed and in default of such payment, shall be recoverable from the assessed in the manner provided in Chapter XVII-D for the recovery of arrears of tax."

Thus, determination made by the CIT is final.

3. Before us, it was submitted by the counsel for the assessed that the bill is not only inflated but is without any basis. He further submitted that there is nothing on record to show that the chartered accountant or the team worked for the particular number of hours as indicated in the bill. As against this the chartered accountant in WP(C) No. 6312 of 2000 has stated that he had placed before the AO all the details of the work and has also pointed out that considering the nature of the work, his bill was according to the professional standards and there was no reason for the CIT to interfere and reduce the amount payable to him. The chartered accountant has invited our attention to a letter dt. 31st March, 2000, which was forwarded to the CIT in response to his letter for fixation of fees. He explains as to why the bill was appropriate in the following paragraphs of his letter:

(a) The seized material was not made available assessed-wise as also records of the various assesseds falling in R.N. Misra group of cases were made available in scattered manner and it was, therefore, next to impossible to maintain separate record for each assessed in respect of time spent/work done for him. It is further pointed that the seized annexures contained information of different assesseds in a scattered and haphazard manner and, therefore, how it is possible to work out the time spent assessed-wise when the papers/documents were mixed.

Therefore, the reduction of the bill due to separate claim not lodged assessed-wise towards work done is not justified.

(b) It is wrong to mention that the time spent by our audit team was never certified by the AO. The complete details of the time spent by our staff on day-to-day basis were maintained and were certified by the AO, the copy of which was enclosed along with the bill submitted and original produced when called for hearing. Therefore, the reduction of the bill on the above said basis is also not justified particularly, when day-wise/person-wise details of the time spent were signed by the AO which were produced along with the bill and no query was ever raised earlier which has been now made a basis for the reduction of the bill.

(c) With regard to rate prescribed by ICAI are only for reference; our appointment for special audit under Section 142(2A) of the IT Act, 1961, in case of P.N. Misra group of cases was made by the learned CIT(II), New Delhi, based on the scale of fees prescribed by the ICAI. It was categorically pointed out to then learned CIT that the fees will be as per the scale prescribed by the Institute.

It may be further noted that scales of fees prescribed by the ICAI were applied in respect of special audit undertaken earlier at the instance of the CIT(II) who has appointed us in P.N. Misra group of cases. If the scale of professional fees prescribed by the ICAI had been adopted in earlier special audits by the same CIT, how same rates will not apply now in this case and are referred, as the rates are only for reference and not binding/mandatory.

He has also indicated in the letter that the minimum rates have been adopted which were just half of the maximum rates prescribed by the Institute of Chartered Accountants. He has also placed on record the work diary from pp. 88 to 100.

4. The learned counsel for the assessed has submitted that the work was not certified by the assessed and, therefore, the bill is highly inflated and the CIT has acted arbitrarily in passing the order. We may refer to the affidavit filed by the CIT in WP(C) 6312 of 2000, inter alia, stating that the fees fixed by the CIT was done after taking into consideration work done By the auditor which was duly verified by the AO. The Dy. CIT has filed an affidavit in WP(C) 7715 of 2000 in which it is stated that "the daily record of the manhours spent by much qualified chartered accountant and other staff was maintained by the special auditor, and counter-signed to ensure authenticity of such a record by the then AO. The original record of actual manhours had been in the possession of the auditor which was duly authenticated on regular basis by the AO." It is also clear from the affidavit that opportunity of hearing was given for the purpose of fixation of fees and only after hearing the parties the order has been made. It is in this situation the assessed is requesting the Court that the CIT has erred in sanctioning the bill while, on the other hand, the chartered accountant has made a grievance that CIT has erred in reducing the amount of fees of his bill.

5. This Court is not sitting as an appellate Court. The Court is required to only satisfy itself that the order has been passed by the competent authority on the basis of material which was placed before the authority and after hearing the parties. It may be that in a case like this the fees fixed by a different CIT may be different, however, all we have to see is that he has arrived at the fees objectively, keeping in view the nature of the matter, work involved, complexity of the case, total hours spent, etc. It should not be forgotten that chartered accountant is a professional and so far as fees are concerned ordinarily it would differ from person to person. However, in the instant case, we are of the opinion that the fees have been charged as per the norms laid down by the All India Institute of Chartered Accountants. It is also specifically stated so by the Revenue on affidavit in WP(C) 1775 of 2000. In view of these circumstances, we cannot interfere with the order made by the CIT on 16th Feb., 2000, under Section 142(2D) of the Act.

Accordingly, we dismiss both the petitions and we direct that the assesseds shall pay the amount to the chartered accountant within a period of four weeks with interest at the rate of 15 per cent from the date of submitting the bill. No other point was urged and the Court has not examined other aspects.