Bhagya Kalita v. The Deputy Commissioner Of Income Tax (Bp) And Anr. O/O The Deputy Commissioner Of Income Tax (Bp) Guwahati Aaykar Bhawan Christian Basti, G.s. Road, Guwahati

GAHC010094642022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3242/2022 BANAMALI DAS AND ANR. S/O LT. RAJEN DAS R/O H. NO. 42 BAKRAPARA NEAR DISNEY LAND SCHOOL, KHANAPARA, GUWAHATI-78102 2: BHAGYA KALITA S/O PIYOLI PHUKAN ROAD REHABARI GUWAHATI ASSAM-78100 VERSUS THE DEPUTY COMMISSIONER OF INCOME TAX (BP) AND ANR. O/O THE DEPUTY COMMISSIONER OF INCOME TAX (BP) GUWAHATI AAYKAR BHAWAN CHRISTIAN BASTI, G.S. ROAD, GUWAHATI-781005 2:THE JOINT COMMISSIONER OF INCOME TAX (BPU) GUWAHATI O/O THE DEPUTY COMMISSIONER OF INCOME TAX (BP) GUWAHATI AAYKAR BHAWAN CHRISTIAN BASTI G.S. ROAD GUWAHATI-78100 Advocate for the Petitioner : MR. P K GOSWAMI Advocate for the Respondent : SC, INCOME TAX BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI ORDER 23.05.2022 Heard Shri PK Goswami, learned Senior Counsel assisted by Shri A Shandilya,learned counsel for the petitioners. Also heard Shri H Gupta, learned CentralGovernment Counsel (CGC) appearing for the Income Tax Department. 2. Considering the limited prayer made in this petition and as agreed to by theparties, this writ petition is being disposed of at the motion stage itself. 3. At this stage, it may be mentioned that on the earlier date i.e., 20.05.2022, thisCourt had directed Shri Gupta, learned CGC to obtain instructions which he has,accordingly obtained in the form of written instructions and has placed the samebefore this Court. 4. The grievance of the petitioners is against an order dated 31.03.2022 passedunder Section 24(3) of the Prohibition of Benami Property Transactions Act, 1988 (forshort referred to as the Act) whereby, the property of the petitioner no. 1 has beensought to be attached. The grounds of challenge, amongst others is violation of theprocedure, including the requirement to arrive at a satisfaction before forming anopinion that the property in question may be alienated during the period specified inthe notice. 5. It is the case of the petitioners that in relation to a particular property of whichthe petitioner no. 1 is the de jure owner, alleging that the petitioner no. 2 is thebenamidar, a proceeding was initiated under section 24 of the Act in question. It is thespecific case of the petitioners that though a reply is required to be filed in responseto the notice, due to absence of materials required to prepare an effective reply, the same could not be filed. The petitioners allege that the materials were not supplied tothem in spite of numerous requests and as a result thereof, the reply could not befiled on time. On the other hand, by invoking the provisions of Section 24(3) of theAct, an order has been passed and, as has been observed above, the said order iswithout coming to a satisfaction regarding the requirement that the property inquestion is likely to be alienated. 6. Shri Goswami, the learned Senior Counsel submits that formation of an opinionbeing a condition precedent, absence of the same would render the entire action voidab initio due to lack of jurisdiction. 7. On the other hand, Shri Gupta, learned CGC by referring to written instructionssubmits that the allegation of violation of any procedure laid down in the said sectionis not based on any materials rather, by drawing the attention of this Court to a notedated 28.03.2022, he learned CGC submits that the appropriate authority underSection 24(1) had come to a prima facie satisfaction for issuing the show cause noticein the present case after taking into consideration all the attending facts andcircumstances. 6. Shri Goswami, the learned Senior Counsel submits that formation of an opinionbeing a condition precedent, absence of the same would render the entire action voidab initio due to lack of jurisdiction. 7. On the other hand, Shri Gupta, learned CGC by referring to written instructionssubmits that the allegation of violation of any procedure laid down in the said sectionis not based on any materials rather, by drawing the attention of this Court to a notedated 28.03.2022, he learned CGC submits that the appropriate authority underSection 24(1) had come to a prima facie satisfaction for issuing the show cause noticein the present case after taking into consideration all the attending facts andcircumstances. 8. On the specific challenge made in the present petition with regard to notfulfilling the requirement of coming to an opinion that the property held benami maybe alienated, the learned CGC has drawn the attention of this Court to another notedated 30.03.2022 of the Deputy Commissioner from where it appears that afterconsideration of certain facts and circumstances, a satisfaction was arrived at that theasset in question might be alienated and therefore, the approval was sought for fromthe appropriate authority. The said note was duly considered by the appropriateauthority and necessary approval was also given on the same date i.e., 30.03.2022.The learned CGC, accordingly submits that there is no error in the procedure adopted as from the note dated 30.03.2022, it is prima facie clear that a satisfaction wasarrived at that the asset might be alienated. 9. Rejoining his submission, Shri Goswami, learned Senior Counsel has submittedthat even without having any access to the note mentioned above, while reading outthe same, it transpires that apart from the term ‘satisfied’, there appears to be nomaterial based on which such satisfaction was arrived and therefore, it appears thatthe satisfaction was a mechanical one and not based on any objective standards. 10. Though this Court may not go into the adequacy of the reasons or groundscontained in the note, it prima facie appears that the prelude to the note is notconnected with the requirement to come to a satisfaction regarding alienation of theproperty which is the issue involved in the present litigation. 11. However, in view of the order proposed to be passed, this Court will refrain frommaking any further observation on the merits of the case so as to avoid causing of anyprejudice to either of the parties. 12. On a specific query, the learned Senior Counsel for the petitioners has submittedthat apart from the lack of satisfaction, there is no intention on the part of thepetitioners to alienate the property in question and in this regard, attention of thisCourt has been invited to an undertaking contained in paragraph 24 of the petitionwhereby the petitioners have undertaken not to alienate the said property and theaverments have also been properly verified in the accompanying affidavit. ShriGoswami, learned Senior Counsel further submits that the petitioners are ready andwilling to submit the reply to the show cause notice which is an obligation underSection 24(1) of the Act and prays for time of two weeks for the said purpose. 13. After considering the same, this Court is of the view that interest of justicewould be served if a period of 10 days is granted to the petitioners to submit the replyto the show cause notice dated 30.03.2022. 14. In the event, the reply is filed within 10 days from today i.e., 06.06.2022, therespondent authorities would consider the same strictly in accordance with theprovisions laid down in Section 24 of the Act. 13. After considering the same, this Court is of the view that interest of justicewould be served if a period of 10 days is granted to the petitioners to submit the replyto the show cause notice dated 30.03.2022. 14. In the event, the reply is filed within 10 days from today i.e., 06.06.2022, therespondent authorities would consider the same strictly in accordance with theprovisions laid down in Section 24 of the Act. 15. It is needless to state that the proceedings impugned in this writ petition,namely, order dated 31.03.2022 will not be given effect to in view of the clearundertaking given by the petitioners in the writ petition supported by an affidavit andthe process will start afresh from the stage of the procedure laid down in Section24(1) of the Act which will be done strictly in accordance with law. 16. The writ petition is, accordingly disposed of. 17. Copy of the written instructions is made a part of the records. JUDGE Comparing Assistant