1. ' V. V. KAMAT, J.---In these two petitions by the Revenue the question is as to at what point of time powers under section 142(2A) of the Income Tax Act, 1961, can be resorted to by the Income-tax Officer ordering special audit and if in an eventuality the said order is found improper, whether the material that is tendered on record as a result of the said special audit could be used for any purpose whatsoever. The essence is spelt out in the following three questions: "(1) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that: '(i) the direction to have an audit by an accountant in terms of section 142(2A) was without legal sanction?
(ii) the proceedings initiated under section 132 of the Income-tax Act on February 23, 1984, had come to an end with the passing of the order under section 132(5) on May 7, 1984. Hence from the records it is seen that no proceedings were pending before the Assessing Officer?
(iii) it is only when some proceedings are pending the Assessing Officer is empowered to invoke the provisions of section 142(2A)?
(2) Whether, on the facts and in the circumstances of the case and in view of clause (iii) of Explanation 1 to subsection (3) of section 153 (by which 'the period commencing from the date on which the Income-tax Officer directs the assessee to get his accounts audited under subsection (2A) of section 142 and ending with the date on which the assessee furnishes a report on such audit under that subsection'---to be excluded) the Tribunal is right in law in holding that the assessm ent should have been completed on or before March 31, 1987, but as it was completed on September 23, 1987, it is barred by limitation?
(3) Whether, on the facts and in the circumstances of the case, the special audit ordered under section 142(2A) was an unauthorised one?"
2. ' In our judgment these are clear and crystal questions of law and we find from the order of the Tribunal a reference to the decision of the apex Court in Pooran Mal v. Director of Inspection (Investigation) (1974) 93 ITR 505, to the effect that even if the audit under section 142(2-A) has any defect by reason of non-pendency of any proceedings before the Assessing Officer at the material time, the materials gathered in the course of audit and found from the audit report could certainly be made use of against the assessee. Apart from the position that the questions are pure and crystal questions of law, the contention of the Revenue gets a prima facie support through the above decision of the Supreme Court.
3. ' Therefore, we direct the Income-tax Appellate Tribunal, Cochin Bench, to prepare the necessary statement of case and take the relevant documents in support thereof on record and refer the questions to this Court under section 256 of the Income Tax Act, 1961, as expeditiously as possible.
4. ' In fact 0. P. No,18247 of 1995 relates to the assessment year 1984-85 in the case of the same assessee. The Tribunal in Annexure "C" order merely followed its order, dated February 9, 1994, in regard to which O.P. No,11369 of 1995 has been filed. Although the wording of the questions framed would be different, the questions raised in O.P. No,1369 of 1995, are directed to be referred.
5. Therefore, we direct the Tribunal to prepare the necessary statement of case and take the relevant documents in support thereof on record and refer the questions mentioned in Annexure "E" in O.P.
6. No,18247 of 1995, to this Court, as expeditiously as possible.