1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. WRIT PETITION NO.2499 OF 2004 Claridges Investments & Finance Private Limited .. Petitioner v/s. The Deputy Commissioner of Income-tax 4(1), Mumbai & ors. .. Respondents Mr.J.D.Mestry i/by M/s.RMG Law for petitioner. Mr. R.V.Desai, senior counsel with Ms.S.V.Bharucha i/by Mr.P.Kapur for respondents. CORAM : R.M.LODHA AND J.P.DEVADHAR, JJ. DATED : 8th October, 2004 P.C. Heard. 2. The direction dated 10th March, 2004 issued by the Deputy Commissioner of Income-tax-4(1), Mumbai in exercise of the powers under section 142(2A) of the Income Tax Act, 1961 and the special audit report dated 6th August, 2004 pursuant thereto are under challenge in the said petition. 3. Though the diverse contentions were raised by the learned counsel for the petitioner in challenging the direction dated 10th March, 2004 and the special audit report dated 6th August, 2004 and he also cited the judgments of the Calcutta 2 High Court in Hansraj Dhingra v. Union of India & ors., 98 ITR 397 and Peerless General Finance and Investment Co.Ltd. & anr. v. Deputy Commissioner of Income-tax and ors., 236 ITR 671, we are not inclined to admit this writ petition for the reasons we indicate briefly hereinafter. 4. The writ petition has been filed on 10th September, 2004 though the impugned direction under section 142(2A) was issued on 10th March, 2004. The petitioner acted pursuant to the impugned direction without any whisper. In the reply affidavit, the respondent No.1 stated that the petitioner participated in the special audit from time to time without objecting to the same. As a matter of fact, the assessee submitted the special audit report dated 6th August 2004 to the assessing officer on 11th August, 2004. In the rejoinder there is no challenge to the specific statement made in the reply affidavit that the petitioner participated in the special audit from time to time without objecting to the same. It appears to us that the petitioner sat on the fence and took the chance of getting the accounts examined by the special auditor as per the direction dated 10th March, 2004 and when the special audit report was not favourable to the petitioner, the present writ petition has been filed thereafter. The petitioner 3 by its conduct has disentitled itself in invoking the extraordinary jurisdiction under Article 226 of the Constitution of India and in view thereof, we do not deem it necessary to consider the diverse submissions made by the learned counsel for the petitioner. Moreover the assessment has been completed by the assessing officer now. If the petitioner has any grievance in respect of the assessment, it has to prosecute the statutory remedy of appeal. 5. The learned counsel for the petitioner submitted that in the petition, constitutional validity of sub-section (2A) of section 142 read with sub-sections (2B), (2C) and (2D) have also been challenged. It is not necessary to go into this aspect for what we have observed above. Moreover, in our order passed in writ petition No.1314 of 2004 on 27th July, 2004 dealing with the contention that the provisions contained in section 142(2A) and (2D) are unconstitutional, we observed thus- "2. The learned senior Counsel contended that the provisions contained in section 142(2A) are unconstitutional if the court reads the said section giving unbridled power to the assessing officer and approval by the Chief Commissioner/Commissioner of Income-tax an empty formality or accepts the contention of revenue that section 142(2A) gives unbridled power to the assessing officer. In this regard he invited our attention to 4 Commissioner of Income-Tax v. Nagarjuna Steels Ltd., 171 ITR 663. The learned senior counsel also contended that section 142(2D) being unreasonable is also unconstitutional because if the assessing officer needs assistance of the special auditor the costs of the special auditor have to be borne by the department and the costs cannot be foisted on the assessee and more so, when there is no cap on the costs. 3. Prima facie, we are not persuaded by the submission of the learned senior counsel challenging the constitutional validity of section 142(2A) and 142(2D). The reason being that section 142(2A) itself provides for protection against any arbitrary and unjust exercise of power by the assessing officer as it requires previous approval of the Chief Commissioner or the Commissioner as the case may be. There is no question of Court reading section 142(2A) giving unbridled power to the assessing officer and that the requirement of the approval is empty formality. This is not the contention of the revenue. Moreover, the constitutional validity of a legislation cannot be permitted to be challenged on ifs and buts. Heavy burden liens on the person to establish that the legislation is unconstitutional. The reliance placed by the learned senior counsel on Commissioner of Income-Tax v. Nagarjuna Steels Ltd., 171 ITR 663 is misplaced and the contention unimpressive. 4. Similarly prima facie, we do not find any unconstitutionality in sub-section (2D) of section 142. The objective of appointing the special auditor under section 142(2A) is to have objective consideration of the matter by the assessing officer where the nature and complexity of the account of the assessee and the interest of the revenue demand the assessee’s accounts to be audited by the special auditor. Obviously, for that purpose, the cost has to be borne by the assessee. There is nothing unreasonable about it." 5 7. Writ petition does not deserve to be admitted and is dismissed in limine. (R.M.LODHA, (R.M.LODHA, (R.M.LODHA, J.) J.) J.) (J.P. (J.P. (J.P. DEVADHAR, J.) DEVADHAR, J.) DEVADHAR, J.)