Point of Law: All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties.

JUDGMENT :

BELA M. TRIVEDI, J.

1. Both the petitions, being inter-connected with each other, involving similar questions of law and facts, were heard together finally at the admission stage with the consent of the learned Advocates for the parties, and hence are being decided by this common judgement.

2. Initially, the petitioners in both the petitions had challenged the order dated 8.4.2021 passed by the respondent, disposing of the objections raised by the respective petitioners against the proposed referral for special audit within the meaning of Section 142(2A) of the Income Tax Act, 1961 (hereinafter referred to as the “said Act”), and had also challenged the impugned directions given by the respondent to the petitioners vide the communication dated 22.4.2021 under the said provisions. To be precise, following prayers were sought in both the petitions:-

7. … that this Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, direction or order and be pleased to:

(a) quash and set aside the impugned order dated 8.4.2021 at Annexure-A to this petition;

(b) quash and set aside the impugned directions of 22.4.2021 at Annexure-A to this petition;

(c) pending the admission, hearing and final disposal of this petition, to stay implementation and operation of the notices at Annexure-A to this petition;”

3. However, at the time of hearing, the learned Sr. Advocate Mr. S. N. Soparkar did not press for the challenge to the impugned order dated 8.4.2021 and confined himself to the challenge to the impugned directions dated 22.4.2021. The Court, therefore, while issuing “notice” to the respondent in both the petitions, had passed the following order on 14.6.2021:-

“1. The Petitioner by way of present petition has sought to challenge the impugned order dated 8.4.2021 at Annexure-A as well as the impugned directions dated 22.4.2021, which are also part of Annexure-A.

2. After arguing for some time, learned Senior Advocate Mr. S.N.Soparkar for the petitioner confines himself to the challenge to the impugned directions dated 22.4.2021 (Annexure- A) and does not press for the challenge to the impugned order dated 8.4.2021 (Annexure-A).

3. Issue Notice as regards the challenge to the impugned directions dated 22.4.2021 (Annexure-A), returnable on 28.6.2021.

4. In the meantime, it is needless to say that the Special Auditor shall confine himself to the scope of Section 142 (2A) of the Income Tax Act read with Rule 14A and Form 6B of the Income Tax Rules.”

4. In view of the above order, the prayer contained in Paragraph 7(a) with regard to the challenge to the impugned order dated 8.4.2021 has stood rejected, as not pressed for in both the petitions. As regards the remaining challenge to the impugned directions dated 22.4.2021, the factual matrix as stated in the Special Civil Application No.7618 of 2021 is taken into consideration for the sake of convenience.

4.1 The petitioner is a limited Company of which most of its shareholders are citizens of India. The petitioner is in the business of development of Special Economic Zone (SEZ) at Village Bhamsara, Kalyanghadh, and Ghangad, Near Bagodara. On 19.12.2019 and on subsequent dates, a search/seizure and survey actions were conducted in “Dishman Group” and voluminous data/materials/documents were seized from the various premises, including the residential premises of the petitioner. Consequent to the search action, the proceedings under Section 153A of the Act have been initiated in case of the petitioner – assessee.

4.2 On 23.2.2021 the respondent issued a notice under Section 142(1) of the said Act, calling upon the petitioner to furnish the details as mentioned therein. According to the petitioner, since the respondent had called for the numerous details spanning across 10 years and