Income Tax Officer, Ward 3(A), Kanpur v. Radhey Kishan Dwivedi 2.Sahuwala Flour Mills

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.4.2018 CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARANANDTHE HONOURABLE MR.JUSTICE R.SUBRAMANIAN W.A.No.1358 of 2015 1.Income Tax Officer,City Circle IV, Chennai 6. 2.Commissioner of Income Tax,Chennai 600 034 3.Income Tax Officer,Ward 3(A), Kanpur...Appellantsversus1.Radhey Kishan Dwivedi2.Sahuwala Flour Mills,56, Namiah Maistry Street,Chennai 600 081...Respondents Appeal filed against the order passed by this Court dated26.3.1998 passed in W.P.No.1378 of 1989. W.P.No.1378 of 1989: Petition under Article 226 of the constitution of India,praying that in the circumstances stated therein and in theaffidavit file there with the High Court will be pleased toissue a Writ of Certiorarified Mandamus calling for the recordsrelating to the order dated 26.03.1984 in proceedings No. GIR.No. 1323/S on the file of the 1[st] Respondent herein quash thesame in so far as it relates to the petitioners cash amountingto Rs. 70000 consisting of gold weighting 783 grams and silverweighting 2.41 Kgs, and the papers relating to the petitionerand valuable and direct the 2[nd] Respondent to transfer thepetitioner's cash and value above to the 3[rd] Respondent herein. For appellants : Mrs.Hema MuralikrishnanFor Respondents : Mr.N.S.Sivakumar The Writ Petition filed by the first respondent challengingthe order dated 26 March 1984 on the file of the Income TaxOfficer, City Circle IV, Chennai, under Section 132(5) of the https://hcservices.ecourts.gov.in/hcservices/ I.T. Act was set aside by the learned Single Judge on the groundthat in the related income tax assessment, the Income TaxOfficer, Kanpur, included the valuables seized from the premisesof the fourth respondent in his account and an order was passedon 31 March 1986. The order is under challenge at the instanceof the Income Tax Department, primarily on the ground thatexcept taking a contention that the cash, gold and silverarticles seized by the Income Tax Officer belong to the firstrespondent, no evidence was produced to prove the said fact inthe Writ Petition. 2. We have heard the learned counsel for the parties. 3. The Income Tax Officer completed the assessment in thecase of the second respondent by including the seized amount,gold and silver articles. The order was upheld by the AppellateAuthority. 4. The first respondent claimed that cash and valuablesbelonged to him and it was accounted in the return submittedbefore the Income Tax Officer, Kanpur. The contention taken bythe first respondent that the assessment order dated 31 March1986 on the file of the Income Tax Officer, Kanpur, clearlyproved that cash and valuables belong to him was accepted by thewrit court. Since the Writ Petition was allowed on the groundthat in view of the assessment order dated 31 March 1986 on thefile of the Income Tax Officer, Kanpur, the Income Tax Officer,Chennai, City Circle IV, was not correct in treating the seizedgold and articles as the property of the second respondent, wedirected the learned counsel for the first respondent to producethe assessment order. 5. The learned Standing counsel for the Income TaxDepartment, produced a copy of the assessment order dated 31December 1985 and the order dated 1 September 1987, confirmingthe said order by the Commissioner, Income Tax (Appeals). Theassessment was subsequently upheld by the Income Tax AppellateTribunal, by order dated 10 July 1986. 6. The learned counsel for the first respondent pleaded hisinability to produce the copy of the Assessment Order stated tohave been passed by the Income Tax Officer, Kanpur. 5. The learned Standing counsel for the Income TaxDepartment, produced a copy of the assessment order dated 31December 1985 and the order dated 1 September 1987, confirmingthe said order by the Commissioner, Income Tax (Appeals). Theassessment was subsequently upheld by the Income Tax AppellateTribunal, by order dated 10 July 1986. 6. The learned counsel for the first respondent pleaded hisinability to produce the copy of the Assessment Order stated tohave been passed by the Income Tax Officer, Kanpur. 7. The Writ Petition was allowed solely on the ground thatthe Income Tax Officer, Kanpur, included the cash and otherarticles in the account of the second respondent. There is noevidence before this Court to show that such an assessment wasmade. Moreover, the assessment order which is now challengedherein has already been upheld by the Appellate Authority at theinstance of the second respondent. In fact, the order was upheld https://hcservices.ecourts.gov.in/hcservices/ even before the disposal of the Writ Petition in W.P.No.1378 of1989. We are therefore of the view that the learned Single Judgewas not correct in setting aside the order dated 26 March 1984. 8. The order dated 26 March 1998 is set aside. The WritPetition in W.P.No.1378 of 1989 is dismissed. 9. The intra court appeal is allowed, without any liabilityto pay costs. Consequently, M.P.No.1 of 2015 and C.M.P.No.6816of 2018 are closed. s/d- Assistant Registrar(CS VII) True Copy Sub-Assistant RegistrartarTo1. The Income Tax Officer,City Circle IV, Chennai 6.2.The Commissioner of Income Tax,Chennai 600 0343.The Income Tax Officer,Ward 3(A), Kanpur+1 CC to Mrs. Hema Muralikrishnan, Advocate sr 30129.+1 CC to Mr.N.S. Sivakumar, advocate sr 29932.W.A.No.1358 of 2015NA(CO)SP(23/05/2018)