( 1 ) WHETHER the Maxim Audi Alteram Partem, if at all and to what extent is applicable to the proceedings before the Assessing officer while passing a direction as contemplated under Section 142 (2a) of the INCOME TAX ACT, 1961 (for short `the Act ).

( 2 ) SHORN off unnecessary details, the necessary facts are : The petitioner claims to be part of Yum Group which was incorporated on 19th March, 1994 as a private Limited Company in the name and style of KFC India Holding Private limited w. e. f. 28th August, 2002 commonly it is known as Yum! Restaurants (India) pvt. Ltd. which globally operates and runs restaurants under the brand name of `kfc and `pizza Hut . The petitioner-company is regularly assessed to income-tax from the assessing year 1995-96 onwards. The petitioner has five sources of income i. e. (i) initial fee (ii) continuing fee, (iii) SCM fee, (iv) territorial fee and (v) stewardship fee. Petitioner has been following its mercantile system of accounting in carrying on its business and claims that it has been maintaining books of accounts on an universally accepted accounting package named as Baan. Return declaring `nil income accompanied by statutory audit report and test audit report was filed on 28th October, 2002 for the assessing year 2002-03 for which assessment proceedings were taken on or about 28th October, 2003, which are still pending. During the course of hearing of assessment proceedings, certain queries were raised by the assessing Officer after the case was taken up for scrutiny in terms of the CBDT instructions dated 21st September, 2003 under compulsory scrutiny as the return of the assessee showed International transactions as defined under section 92 (b) of the act in excess of Rs. 5 crores.

( 3 ) BEING dissatisfied with the replies filed to the questionnaire of the assessing Officer, the Assessing Officer formed an opinion on 31st January, 2005 and submitted a proposal to the Commissioner of Income-tax, Delhi seeking his approval for issuance of direction to the assessee, in terms of section 142 (2a) of the act. The approval sought for was granted by the Commissioner of Income-tax Delhi vide his order dated 11th February, 2005. This in turn was conveyed to the petitioner, vide order dated 16th February, 2005.

( 4 ) THE petitioner seeks to challenge the legality, validity and judicial propriety of this order dated 16. 2. 2005 passed by the Assessing Officer in exercise of the powers vested in him under section 142 (2a) of the Act, mainly on the following grounds :-

(A)THE impugned order is illegal and perverse because the reasons for directing special audit do not relate to nature and complexity of any accounts, but is based on certain factual assumption which are even contrary to the records? (b) Neither opportunity of being heard was granted nor any show cause notice was served upon the petitioner before the Assessing Officer passed the impugned order in exercise of his quasi-judicial authority. Thus, the order is violative of principles of natural justice. (c ) The order is contrary to the procedure of law enunciated in various judgments including in the case of GNK Driveshafts (India) Ltd. Vs. Income-tax Officer and Ors. (2003) 259 ITR 19.

( 5 ) BASED upon the above narrated facts and the contentions noticed above, petitioner firstly pray for a direction to the respondents, in particular to respondent no. 2 to furnish to the petitioner copy of his proposal and approval granted by authorities, leading to the issuance of the order dated 16th February, 2004. Secondly, respondent No. 2 be directed to dispose of the objections raised by the assessee in relation to the proposal under section 142 (2a) by passing a speaking order and lastly that the order dated 16. 2. 2005 be quashed. As far as the first two reliefs are concerned, hardly anything survives in this writ petition. Petitioner has himself annexed to the writ petition, proposal made by the Assessing Officer to the comm