K. J. SENGUTPA, J. ( 1 ) BY the instant writ application the petitioner has basically challenged an order dated 13th June 2003 passed by the Commissioner of Income Tax, Calcutta 700 021 appointing Shri P. K. Agarwala as a Special Auditor under section 142 (2a) of the Income Tax Act, 1961 (hereinafter referred to as the said Act) and also incidentally the vires of section 142 (2a) of the said Act in so far as it covers the same field as section 44 (AB) of the said Act as regard its constitutionality. However, at the time of argument the question of vires was not pressed by the learned senior counsel Dr. Pal. The direction for filing of affidavits was given on two occasions, to understand case of Revenue, however, no affidavit was filed, so it was decided the matter should be heard without any affidavit-in-opposition. ( 2 ) THE short fact of the case is that the petitioner is carrying on banking business after having been formed under the Co-operative Societies Act, 1912. The members and/or shareholders of the petitioner are the Government of West Bengal, holding about 38 per cent shares and balance are being held by the different District Central Co-operative Banks and other co-operative societies. The petitioner is also a scheduled bank within the relevant provisions of the Banking Regulations Act and is being directly controlled by Reserve Bank of India and also by National Bank for Agriculture and Rural Development (NABARD ). The books of accounts and documents of the petitioner are regularly and systematically audited by both the Co-operative Audit Directorate, Government of West Bengal as well as by the Auditor under section 44 (AB) of the said Act. ( 3 ) IN almost all the relevant assessment years the petitioner has been enjoying exemption from paying tax to the income under the provision of 14 (3) (i) (a) of the Income Tax Act, 1922 then prevailing, now under section 81 (i) (a) of the present Act. When the petitioner was reasonably expecting of refund of a sum of Rs. 1,40,27,398/-, Rs. 1,45,31,755/-, Rs. 92,26,412/-, Rs. 1,01,94,817/- and Rs. 1,59,24,661/- respectively for the assessment years of 1996-97 to 2001-01, which were duly and appropriately adjudged to be refunded, by the appropriate Income Tax official, the Assessing Officer all of a sudden decided to reopen the aforesaid assessments of the relevant periods. 1,40,27,398/-, Rs. 1,45,31,755/-, Rs. 92,26,412/-, Rs. 1,01,94,817/- and Rs. 1,59,24,661/- respectively for the assessment years of 1996-97 to 2001-01, which were duly and appropriately adjudged to be refunded, by the appropriate Income Tax official, the Assessing Officer all of a sudden decided to reopen the aforesaid assessments of the relevant periods. The petitioners duly replied to the notices under Section 148 of the aforesaid Act and met quarries and requisitions made by him in connection with the reopening of assessment under section 147 of the said Act. ( 4 ) WHILE the petitioners were exchanging correspondences, meeting queries and supplying information, they received a copy of the letter dated 29th May 2003 addressed by the Income Tax Officer, Technical-21, for the respondent No. 3 to M/s. P. K. Agarwala wherefrom it transpired that the respondent No. 3 wanted special audit to be done under Section 142 (2a) of the said Act of the accounts of the petitioner for the assessment years 1996-97 to 2002-2003 and for the said purpose M/s. P. K. Agarwala had been nominated as Chartered Accountant for conducting audit. The petitioner duly protested against the aforesaid proposal for special audit contending amongst others that it was not necessary in this case as the accounts of the petitioner has been audited not only under section 44 (AB) of the said Act but also by the other agencies. ( 5 ) ON 13th June 2003, the respondent No. 3 passed an order approving the proposal of Assessing Officer for special audit under the aforesaid Section for the aforesaid assessment years. The said order, however, was passed considering the petitioner's objection filed on 4th June 2003. No affidavit-in-opposition was filed but I directed production of the relevant records, so I had the benefit of going through the same. ( 6 ) DR. Pal senior advocate appearing for the petitioner contends that the impugned order the Commissioner is bad in law for two broad reasons, No. (i) the Commissioner in fact under the law has no material to approve proposal of the Assessing Officer for appointment of Special Auditor, No. (ii) the said impugned order is passed on non-compliance of the principle of natural justice. He submits that the power under section 142 (2a) of the said Act cannot be exercised by the Assessing Officer without the conditions as mentioned hereunder are satisfied. He submits that the power under section 142 (2a) of the said Act cannot be exercised by the Assessing Officer without the conditions as mentioned hereunder are satisfied. ( 7 ) FIRSTLY, he must form opinion having regard to the nature and complexity of the account of the assessee and secondly, in the interest of revenue that it is necessary to appoint a Special Auditor, thereafter he must have a previous approval of the Chief Commissioner/commissioner of Income Tax. ( 8 ) BEFORE he comes to the conclusion, as to the nature and complexity of the accounts, he shall have genuine and honest attempt to understand the accounts of the assessee and appreciate the entries therein and in case of doubt, he should, seek explanation from the assessee or his representative. A cursory look at the books of accounts is not sufficient for formation of opinion by the Assessing Officer for exercise of power under section 142 (2a) of the said Act. His opinion must be based upon objective consideration and not on the basis of subjective satisfaction. Naturally the Assessing Officer must have occasion and opportunity to examine accounts of the assessee to form his opinion as above. In support of his submission he has relied on the following, decisions : 236 ITR 671 (Cal), 257 ITR 622 (Cal), 250 ITR 450 (Ker), 252 ITR 833 (HP), 171 ITR 634 (All ). ( 9 ) HE contends that in the petition it has been stated that neither the Assessing Officer nor Commissioner of Income Tax had any occasion to examine any books of accounts rather they have relied on the records namely order of assessment, returns, profit and loss accounts and balance sheet. This fact has not been rebutted by filing any affidavit. Therefore, this statements and averments made in the petition are to be accepted as being true and correct. In support of his contention he has referred to the following decisions. AIR 1973 SC 627 115 ITR 465 (Cal) at 467 115 ITR 608 (Cal) ( 10 ) HIS further contention is that the aforesaid impugned order is mala fide for the following reasons. On 16th December 2002 order was passed under section 154 of the said Act. A sum of Rs. 1,45,29,451 was directed to be refunded to the petitioner for the assessment year 1997-98. On 16th December 2002 order was passed under section 154 of the said Act. A sum of Rs. 1,45,29,451 was directed to be refunded to the petitioner for the assessment year 1997-98. In pursuance thereof while the petitioner was making representation for refund of a total sum of Rs. 6,39,05,043 for the assessment years 1996 to 2001, the notices under section 148 had been issued in order to stall the claim of the petitioner. Any way, all the quarries for reopening of the assessment for the aforesaid periods were answered in writing. The hearing of the case was fixed on 28th of April 2003 with regard to reopening and at that time too nothing was divulged and subsequently from the order of the Commissioner dated 13th June 2003 it was found that the Commissioner has received a proposal from the Assessing Officer dated 28th March 2003 for the appointment of a Special Auditor for all the assessment years 1996-97 to 2001. Significantly, no hearing was given, before making proposal, nothing was divulged. Therefore, at no point of time the petitioner had any opportunity to place its case against the proposal of the Assessing Officer for appointment of special Auditor. The Commissioner mechanically approved the proposal of the Assessing Officer without giving any opportunity of being heard and only a notice was served upon the petitioner for setting the remuneration of the Special Auditor and not on the question of the appointment. ( 11 ) HE contends that discarding, without reasons, the audit reports both under the Co-operative Law and the aforesaid provision of section 44 (AB) of the said Act the decision for appointment of Special Auditor has been taken ignoring enormous cost factor of the petitioner in a casual manner. Therefore, on that score also the aforesaid impugned order is invalid. ( 12 ) MR. S. K. Kapoor, learned Additional Solicitor General of India while opposing the writ petition submits that in this case there is no challenge against the power of the Assessing Officer as well as the Commissioner. When both the Officers after having applied their respective minds and being satisfied with the nature and complexity of the accounts based on objective consideration have taken decision for special audit, it is not open for the petitioner to challenge the same nor the writ Court will interfere with the same. When both the Officers after having applied their respective minds and being satisfied with the nature and complexity of the accounts based on objective consideration have taken decision for special audit, it is not open for the petitioner to challenge the same nor the writ Court will interfere with the same. He submits that from the records it will appear both the officials have examined Profit and Loss Account, balance-sheet and the returns submitted and thereupon they formed their opinion. Therefore, it cannot be said the opinion has been formed without any material. Sufficiency or inadequacy of the materials cannot be ground to interfere with the impugned order. It is not necessary that all the books of accounts are to be examined by the officials for formation of opinion as required under section 142 (2ab) of the said Act. He has drawn my attention to the impugned order of the Commissioner and contends that he has given detailed reasons and disclosed the materials on the basis of which he recorded his satisfaction while giving approval. ( 13 ) HE submits it is impossible to examine each and every Books of Accounts of all the branches of the writ petitioner, which scatter in almost all the Districts of the State of West Bengal. This writ petitioner has been transacting with various non-members and the incomes therefrom cannot be an income from Co-operative business, so as to claim deduction under the law. It will appear from the contents of letters and correspondence exchanged by and between the parties that the nature and complexity of the accounts are so apparent that the appointment of Special Auditor can hardly be avoided. His next contention is that there is no provision for compliance of natural justice for giving prior hearing to the petitioner by the Assessing Officer or by the Commissioner with regard to the appointment of the Special Auditor, because the decision of this nature does not affect anybody's right and if there be any objection at the time of hearing before the Assessing Officer, all points may be agitated. ( 14 ) HE further contends that the petitioner while answering to the quarries of the Assessing Officer took time on two occasions for production of the necessary documents and accounts, this fact themselves suggest the complexity and nature of the accounts. In support of his contention he has relied on the following decisions. ( 14 ) HE further contends that the petitioner while answering to the quarries of the Assessing Officer took time on two occasions for production of the necessary documents and accounts, this fact themselves suggest the complexity and nature of the accounts. In support of his contention he has relied on the following decisions. 171 ITR 634, 222 ITR 534, 164 ITR 148, 24 ITR 921, 245 ITR 798, 255 ITR 268, 259 ITR 637, 218 ITR 438, 251 ITR 194. ( 15 ) HAVING considered respective contentions and submission of the learned counsels it appears to me that only point needs to be decided before I hold the aforesaid impugned order of approval followed by direction for Special Audit under section 142 (2a) of the said Act, being bad in law is whether Commissioner of Income Tax as well as the Assessing Officer have exercised their jurisdiction as per mandate of the aforesaid section or not. The said section is quoted hereunder :"142?. (2 A ). If, at any stage of the proceedings before him, the Assessing Officer, having regard to the nature and complexity of the accounts of the assessee and the interests of the revenue, is of the opinion that it is necessary so to do, he may, with the previous approval of the Chief Commissioner or Commissioner direct the assessee to get the accounts audited by an accountant, as defined in the Explanation below sub-section (2) of section 288, nominated by the Chief Commissioner or Commissioner in this behalf and to furnish a report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed and such other particulars as the Assessing Officer may require. " ( 16 ) A large number of decisions cited by the learned counsels have laid down almost uniformly with little addition and variation that before the said authorities could pass an order for Special Audit they are to apply their minds and to form their opinion having recorded satisfaction with an objective consideration, that the accounts of the assessee is of such nature and complexity and for the interest of the revenue, that without such special audit assessment or reassessment is not possible. Therefore, I feel of the few decisions having bearing on the point cited at the bar are required tobe considered. Therefore, I feel of the few decisions having bearing on the point cited at the bar are required tobe considered. ( 17 ) IN the case of Swadeshi Cotton Mills Company Ltd. v. C. I. T. (All) the Division Bench of the Allahabad High Court (171 ITR 634) while dismissing a writ application challenging the order of Special audit under the aforesaid section has observed that the power under section 142 (2a) cannot be based on objective basis, regard being had to the nature of the accounts. It has further been observed that the word 'complex' used in sub-section 2 (A) of section 142 is a nebulous word. "however, all that are difficult to understand should not be regarded as complex. What is complex to one may be simple to another. It depends upon one's level of understanding or comprehension. Sometimes, what appears to be complex on the face of it, may not be really so if one tries to understand it carefully. Therefore, special audit should not be directed on cursory look at the accounts. There should be an honest attempt to understand the accounts of the assessee". ( 18 ) IN the case Peerless General Finance and Investment Co. Ltd. and Anr. v. Deputy Commissioner of Income Tax and Ors. (236 ITR 671) the learned single Judge of this Court while examining the scope and purport of section 142 (2 A) of the said Act has been pleased to hold that :"section 142 (2a) of the Income Tax Act, 1961 enables the Assessing authority to direct the accounts to be audited in the event of the complexity of the accounts. This power can be exercised only in respect of all assesses. A bare perusal of sub-section (2 A) of section 142 leaves no manner of doubt that an opinion has to be formed having regard to the nature and complexity of the accounts of the assessee and the interest of the Revenue. The word 'and' signifies conjunction. Thus both nature and complexity of the accounts as also the interests of the revenue are necessary ingredients for exercise of the said power. The word 'complexity' means the state or quality of being intricate or complex or that it is difficult to understand. The expression 'having regard to' indicates that in exercising the power regard must be had to the factors enumerated in the provision. The word 'complexity' means the state or quality of being intricate or complex or that it is difficult to understand. The expression 'having regard to' indicates that in exercising the power regard must be had to the factors enumerated in the provision. Where an authority is conferred with a power to exercise its discretion in a particular manner, such discretion has to be exercised bona fide and with a view to achieve the object laid down under the Statute. No discretion is beyond the scope of judicial review. Principles of natural justice shall be presumed to be necessary unless there exists a statutory interdict. A prior approval is not an empty before an approval is sought for, the Assessing Officer must form an opinion as regards the conditions laid down therein. It further envisages application of mind on the part of the Assessing Officer as also the Commissioner of Chief Commissioner on the case may be". ( 19 ) IN the case of Muthoottu Mini Kures v. Deputy Commissioner of Income Tax and Anr. (250 ITR 455) the learned single Judge of Kerala High Court relying on the aforesaid decisions of Allahabad High Court and the Calcutta High Court has observed that :"when the Statute prescribes an audit by a third party it requires that the Assessing Officer should have a satisfaction that the accounts of the assessee are complex in nature. This decision can be made only after seeing the accounts. Under section 143 (2) of the Income Tax Act, 1961, which provides for enquiry before assessment, the Assessing Officer is obliged to serve a notice on the assessee to produce or cause to be produced such accounts or documents as the Assessing Officer may require and of furnishing in the prescribed manner information in such form and on such points or matters as the Assessing Officers requires. This satisfaction clarifies that a hearing is essential, at the pre-assessment stage. Only if the records are produced and the accounts examined, the complexity or otherwise of the accounts would become apparent, and not before. Even if there are difficulties in appreciating the entries in every case, it is not healthy to refer the matter to a chartered accountant as an explanation could be obtained from the assessee or from the authorised representative under section 142 (1 ). Even if there are difficulties in appreciating the entries in every case, it is not healthy to refer the matter to a chartered accountant as an explanation could be obtained from the assessee or from the authorised representative under section 142 (1 ). The expressions used in section 142 (2a) show that there should be sufficient reasons and this itself postulates a right of hearing. " ( 20 ) IN case of Bata India Ltd and Anr. v. Commissioner of Income Tax and Ors. (257 ITR 622) the learned single Judge of this Court while relying on the aforesaid three decisions has held in almost similar line that:"the twin pre-conditions justifies the special audit under section 142 (2a) of the Income Tax Act, 1961, are the nature and complexity of the accounts and the interests of the Revenue. Before an approval is sought for, the assessing authority must form an opinion as regards the said twin conditions. There should be an honest attempt to understand the books of account of the assessee. There has to be an application of mind on the part of the assessing authority. Complexity of the accounts cannot be equated with doubts being entertained by the assessing authority either with regard to the correctness thereof or the need for obtaining certain vital information to be ascertainable from the accounts. The satisfaction is to be based upon objective considerations. " ( 21 ) IN case of Joint Commissioner of Income Tax v. I. T. C. Ltd. (239 ITR 921) the Division Bench of this Court while dealing with an appeal from an interlocutory order has been pleased to observe that :"in case where the "nature and complexity" of accounts is such that it is not possible for the Assessing Officer has power to justify the correct assessment of the income and to examine the correctness of the accounts the Assessing Officer has power to appoint a special auditor with the approval of the Commissioner or Chief Commissioner. The power conferred on the Assessing Officer and the approval of the Commissioner and Chief Commissioner is not confined to any turnover, in business or profession. There is no limit or any bar on account of amount of receipts either in business or profession. This power has been conferred on the Assessing Officer to do justice to the assessee and also to protect the interest of the Revenue. There is no limit or any bar on account of amount of receipts either in business or profession. This power has been conferred on the Assessing Officer to do justice to the assessee and also to protect the interest of the Revenue. " ( 22 ) FROM analysis of the aforesaid decisions, which are relevant on this point and upon careful reading of the aforesaid section it is clear as it has been rightly contended by Dr. Pal that unless the Assessing Officer examines the books of accounts, how he can not have any understanding as to nature and complexity of the same, consequently is not possible for him to come to conclusion for necessity of special audit. It is difficult to accept the argument of Mr. Kapoor, learned Additional Solicitor General of India that all the books of accounts are not required to be examined by the Assessing Officer or the Commissioner physically, if other materials, namely, the returns together with the balance sheet and profit and loss accounts are good enough to reach to conclusion as to the complexity and the nature of the accounts, then, this will be sufficient compliance and requirements of the aforesaid section. Having examined the records, I find that in the order sheet there is no whisper of the Assessing Officer about the information of his opinion nor any direction for production of the Books of Accounts being given. The scheme of section 142 of the said Act is very clear and I think it is the obligation of the Assessing Officer to give direction for production of the accounts, wherever it is necessary. Here, the Assessing Officer has to form opinion as regard complexity of nature in relation to the accounts. He ought to have taken such measure for examining books of accounts as of necessity. ( 23 ) IT is stated in the petition that the books of accounts was never asked to be produced and this averment and statement have not been denied and disputed. Even, from the impugned order as well as the proposal of the Assessing Officer I do not find any attempt was made for causing production of books of accounts, not to speak of examining the same. ( 24 ) MR. Even, from the impugned order as well as the proposal of the Assessing Officer I do not find any attempt was made for causing production of books of accounts, not to speak of examining the same. ( 24 ) MR. Additional Solicitor General submits that examination of all the books of accounts for formation of opinion is not necessary and I think this submission has no force, as from the language of the said section, it appears that formation of opinion has to be related to the books of accounts. Therefore, how is it possible for a person to form an opinion in any manner without the same being examined? Moreover, this issue is no longer res integra, as the same contention and plea have already been decided by the aforesaid decisions of several Courts as quoted above, so I reject this contention. ( 25 ) THEREFORE, I conclude that the Assessing Officer without examining the books of accounts has formed their opinion regarding nature and complexity and the Commissioner overlooking this serious legal lapse has mechanically approved. It is true they have material, but with these material no one can reasonably and rationally form opinion. I have examined the proposal dated 28th March 2003 of the Assessing Officer, namely Assistant Commissioner of Income Tax. It appears that he sought for various information to complete assessment correctly and such information could not be supplied by the petitioner, as the accounts are not maintained in such fashion. Moreover, the business transaction of the petitioner is huge and conducted through 48 branches in West Bengal. Because of this failure he has presumed the accounts of the assessee (petitioner) are very complex and desired information cannot be collected easily. ( 26 ) IN his proposal he has not stated how the interest of revenue will be subserved with such special audit. The Commissioner of Income Tax has recorded approval mechanically as quoted above to cover up the aforesaid lapses. The recorded that he has applied his mind and he regarded that the nature of the accounts and its complexity thereof are such that the proper assessment cannot be made unless special audit is directed to be conducted for the interest of revenue. The recorded that he has applied his mind and he regarded that the nature of the accounts and its complexity thereof are such that the proper assessment cannot be made unless special audit is directed to be conducted for the interest of revenue. His findings appears to be independent of the decision of Assessing Officer, he cannot do so, his jurisdiction is to examine whether proposal of Assessing Officer for Special Audit deserves to be approved. ( 27 ) IN my view inference and/or presumption cannot be basis for formation of opinion, as this cannot take place of factual examination of the accounts. In the decisions of Peerless case, Swadeshi Cotton Mill's case (supra) and the Madras High Court's case it has consistently been held the inference cannot be a basis for formation of opinion or satisfaction. It is clear from the aforesaid two orders and from the records that there was no objective consideration for reaching satisfaction as required for assumption of jurisdiction under section 142 sub-section 2b of the said Act. ( 28 ) IT appears to me further that primarily the Assessing Officer should examine either by himself or to get the accounts examined by some other official subordinate to him and then applies his mind to form opinion about nature and complexity of the accounts. The said section leaves ample scope for the Assessing Officer to abuse or misuse power conferred thereunder by appointing Special Auditor, to be more precise the task of the Assessing Officer of examining Accounts can be shifted to the third party at the cost of the assessee. In this case this has happened undoubtedly, for the Assessing Officer never tried to examine the books of accounts before forming his opinion. Voluminous and the number of books of accounts or the plea of impossibility are no ground to abdicate his duty. If it is possible for an auditor or his team to examine books of accounts, then why it is impossible for an Assessing Officer, is not comprehensible, after all he is presumed to have workable skill and idea of accounting because the nature of the duty entrusted to him under the Statute reasonably demands for such skill and knowledge of examining accounts. ( 29 ) I quite understand the whole object of the reassessment, is to find out whether any taxable income has escaped assessment or rather in the guise of co-operative income any other income has slipped out from the assessment or not. The petitioner is a body corporate, and formed under the statute and they are required to audit their accounts compulsorily under section 44 (AB) of the said Act which has been incorporated in the Act on and from 1st April 1985 by the Finance Act, 1984, whereas section 142 (2a), (2b) was incorporated much earlier than the aforesaid section with effect from 1st April 1976 by Taxation Laws (Amendment) Act, 1975. The difference between the aforesaid two sections is distinctly discernable. The provisions of section 44 (AB) of the said Act is applicable in case of the classified assessee as mentioned therein having regard to the limit of the turnover in a particular year. But section 142, sub-section (2 A) can be resorted to, irrespective of the limit of the turn over and in case, as mentioned in the said section. ( 30 ) THEREFORE, it is clear that before insertion of section 44 (AB), only safeguard against the incorrect and manipulated accounts that might be furnished with return was section 142 sub-section (2a) read with 2 (B ). I find, section 44 (AB) provides for further safeguard, in case of amongst others, the corporate body. Dr. Pal aptly pointed out that the object and purpose of getting audit report under both the sections are almost same and identical as the same will appear from the contents of the form required for submission of audit report as mentioned in the Rule 6 (G) Form 30-C (Incomes under 44 (AB) and Rule 14 (A) and Form 6-B ). ( 31 ) IT appears from the Act and rules that same method of conducting audit for filing report is required to be followed in both the cases. It is true that the special audit under section 142 (2a) stands on a different footing from that of the provision of compulsory audit under section 44 (AB ). ( 31 ) IT appears from the Act and rules that same method of conducting audit for filing report is required to be followed in both the cases. It is true that the special audit under section 142 (2a) stands on a different footing from that of the provision of compulsory audit under section 44 (AB ). The special audit under section 142 (2a) can be resorted to in case of any assessee, if the conditions mentioned therein are fulfilled, irrespective of the limit of the annual turnover, whereas compulsory audit under section 44 (AB) is required in case where income of the assessee exceeds the limit stipulated therein. I think purpose of getting accounts audited under both the section 142 (2 A) and section 44 (AB) is to see, there may not be any escapement of the taxable income to the assessment. It is always presumed the books of accounts recording dealings and transaction of the income group as bracketed in the aforesaid sections are voluminous, large, and some times may be complex so much so that it would be difficult for the Assessing Officer to find out the correctness and veracity and further acceptability of the accounts and income, so further safe guard is provided. ( 32 ) FOR this purpose the aforesaid provision has been made. Under the statute, in my view, the different provision ahs been made for achieving same purpose, under a bit different circumstances. In this case the petitioner had to had got its accounts audited, not only under the aforesaid provision of section 44 (AB) of the said Act but also by the Director of Co-operative appointed by the State of West Bengal. Therefore, scope of projecting manipulated accounts or incorrect statement of income is very little. Some times it is possible for an unscrupulous assessee to evade tax by jugglery of accounting action in that case under section 142 (2 A) of the Act may be resorted to. Upon careful reading of the section 142 (2 A) it appears to me that power conferred thereunder is discretionary. This provision in my view can be applied only in case of absolute necessity and when other alternative method is not effective. Upon careful reading of the section 142 (2 A) it appears to me that power conferred thereunder is discretionary. This provision in my view can be applied only in case of absolute necessity and when other alternative method is not effective. ( 33 ) THE learned single Judge of this Court in case of Peerless has observed that the exercise of special audit can only be resorted to sparingly and not in whimsical and capricious manner. This observation is also supported by the judgment rendered by Allahabad High Court in case of Swadeshi Cotton Mills. In my view, while respectfully agreeing with the views of Allahabad High Court, two learned Judges of this Court and the learned single Judge of Madras High Court the Assessing Officer before sending proposal sought to have recorded reasons in the order after having examined the accounts by himself or getting the accounts examined by his subordinate officials, in support of his findings that the nature and complexity of the accounts is such that without special audit proper assessment is not possible to protect interest of Revenue. In a case where provision for special audit under the aforesaid Act is sought to be applied Assessing Officer concerned must record as to why the audit report if furnished by the assessee under section 44 (AB) of the Act is not accepted rather discarded, because as I have already observed the scope and purpose of the audit report under section 44 (AB) is almost same and identical except, little variation. He must also record as to why this audit report is not helpful to understand the particular accounts, or for removal of his idea of complexity in the accounts. In pursuance of this the Assessing Officer must give hearing to the assessee invariably to give opportunity to explain away his doubt. In the scheme of this Act there is no express provision for giving a hearing in section 142 (2a), but when the Assessing Officer exercises discretion under this section the right of the assessee certainly is affected in two ways (i) the assessee has to has incur expenses for the special Audit (ii) any favourable report of the Auditor under section 44 (AB) will be discarded. It is settled position of law that whenever there arises any civil or evil consequences or affectation or right or creating any obligation compliance of principle of natural justice is necessary and such provision is presumes to be inbuilt in the section itself. ( 34 ) THE Commissioner of Income Tax should not give any approval mechanically and if he finds that there is no examination of books of accounts by the Assessing Officer before sending proposal, he will not certainly give any approval. Under this section, the Commissioner of Income Tax does not exercise jurisdiction of appellate authority rather approving authority. Approval means and connotes that supporting and accepting of an act and conduct done by another person. Therefore, it would be his duty to examine on receipt of his proposal, whether the Assessing Officer has correctly done it or not, if he finds that this requirement has not been fulfilled then he must not approve of the same. The decisions cited by learned Additional Solicitor General are not applicable in this case those are factually distinguishable. Moreover, some of the decisions were rendered at the interlocutory stage. The principles followed therein are not disputed and in fact it has been followed here. His duty is to examine whether the Assessing Officer has done properly or not and thereafter he will apply his independent mind as to whether on the facts and circumstances as indicated by the Assessing Officer exercise of power for special audit is necessary or not. ( 35 ) IN this case, I find, he has not made any attempt in doing so, rather he has come to his own findings different from the Assessing Officer. Accordingly, the approval is not in consonance with the requirement of law, as such this impugned order is set aside. If any action having been taken, then the respondent authority shall restore the writ petition in position, as if there was no special audit. However, this judgment and order will not prevent and prejudice the respondents if they are advised to proceed afresh but then this has to be done complying with the aforesaid observation. Thus the petition succeeds. There will be no order as to costs. In view of the earlier order, Department will be entitled to have extension from 31. 03. However, this judgment and order will not prevent and prejudice the respondents if they are advised to proceed afresh but then this has to be done complying with the aforesaid observation. Thus the petition succeeds. There will be no order as to costs. In view of the earlier order, Department will be entitled to have extension from 31. 03. 2004 for the period during which this writ petition being W. P. No. 1897 of 2003 was pending till today. Original file which was submitted to the Court and kept on record is returned herewith to the learned counsel for the Revenue. Let urgent Xeroxed certified copies of this judgment and order be supplied to the parties, if applied for the same. Petition succeeds .