......
The Parliament thus had a clear
intention to provide for only a special audit. The fact that Section 74A prescribes the conditions meriting such
special audit compels the necessary inference that the Parliament did not
intend to provide for a general audit that “every assessee” may be
subjected to, “on demand”. This Court is thus of the opinion that any attempt to include provision
for such a general audit through the back-door, such as through the impugned
rule, is ultra-vires the rule making power conferred under Section
94(1). Rule 5A(2) must consequently be struck down.
Likewise,
this Court finds that the impugned CBEC instruction, being in furtherance of
Rule 5A(2), which rule is ultra-vires the Finance Act, 1994, is void for
the same reasons. Executive instructions without statutory force, cannot
possibly override the law; consequently, any notice, circular, guideline etc.
contrary to statutory laws cannot be enforced.....
