M. Katju and R.S Tripathi, JJ.:— Heard learned Counsel for the parties and learned Counsel for the Department.
2. The petitioner has prayed for a writ of certiorari quashing the appointment of respondent No. 4 as Special Auditor by the Commissioner of Income Tax, Ghaziabad under section 142(2-A) of the Income Tax Act.
3. We have gone through the averments in the writ petition. From a perusal of Annexure-IX to the writ petition it appears that there are allegations of huge misappropriation of the society's funds directly or indirectly made by the assessee in favour of close relatives of the founder members of the society. Also fictitious expenses appear to have been claimed under the different heads of expenses debited in the income and expenditure account.
4. The donations received by the assessee are also to be examined in the light of its proper utilisation for charitable purposes. The Additional Commissioner of Income Tax, Range-2, Ghaziabad was of the opinion that in the absence of the books of accounts prima facie the income of property of the society is indirectly diversion of the funds for the benefit of persons referred to in section 13(3) of the Income Tax Act. The Additional Commissioner therefore recommended that the Assessing Officer may consider the case for special audit under section 142(2-A) of the Income Tax Act keeping in view the suspicion that the funds of the society are being siphoned off by the member trustees.
5. In our opinion the view taken by the Additional Commissioner cannot be said to be arbitrary. This Court does not sit as a Court of appeal over the opinion of the Assessing Officer under section 142(2-A) as held by the Division Bench of this Court in Jhunjhunwala Vanaspati Ltd. v. Assistant Commissioner Of Income-Tax (No. 2) . 2004 266 ITR 657.. In the aforesaid decision one of us (Hon'ble M. Katju, J.) has considered section 142(2-A) in great detail and has held that there should be judicial restraint in interfering with such administrative directions. This view has been followed by another Division Bench of this Court in Pushpak Jyoti v. State of U.P, Civil Misc. Writ Petition No. 52499 of 2002 decided on 11.12.2003 in which the theory of judicial restraint while reviewing administrative decisions has been discussed in great detail. Following the aforesaid decision this petition is dismissed.