Kishore Jagjivandas Tanna v. Joint Director Of Income-Tax (Inv.), Unit-I, New Delhi – 110 055 & Anr

suresh IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2079 OF 2018 Kishore Jagjivandas Tanna Vs.Joint Director of Income-tax (Inv.),Unit-I, New Delhi – 110 055 & Anr. .... Petitioner .... Respondents Mr. S.C. Tiwari with Ms Rutuja N. Pawar for the Petitioner.None present for the Respondent. CORAM: S.C. DHARMADHIKARI &B.P. COLABAWALLA, JJ. DATE : SEPTEMBER 17, 2018 P.C: 1.On this writ petition, on the earlier occasion, wepassed the following order:- “1.Let the petitioner's advocate satisfy this court as tohow the writ petition will lie for recovery of money even ifthat recovery is in terms of the order of this court. Oursimple query is, if the order of this court, on whichreliance is placed, is passed on 25[th] March, 2008 and thatorder is also capable of more than one interpretation,then, merely because the petitioner keeps on writingletters or raising a demand on the respondents in writing, Page 1 of 13 suresh would it save the bar of limitation, which is prescribed bythe Limitation Act, 1963 for filing a suit for recovery ofmoney. Merely because a writ petition is filed does notmean that this court can pass an order contrary to thescheme of the Limitation Act, 1963 and grant the relief.All the more when this writ petition is filed in the year2018 and to be precise on 23[rd] July, 2018, a good 10years after the right to recover that money accrued infavour of the petitioner. 2. The petitioner's advocate says that she wouldconsider this position in law and address the court on thenext occasion. We place this matter for "passing orders"on 17[th] September, 2018.” 2.Today, when we heard Mr. Tiwari extensively, hewould submit that a panchnama was drawn by the searchauthorities reflecting seizure of cash of Rs.4,99,900/-, copy ofwhich is at Exhibit-A to the petition. That is dated 25-8-1987. Anorder under Section 132(5) was made by the Assessing Officeron 22-12-1987, but the aggrieved petitioner approached thisCourt by filing a Writ Petition, which Writ Petition bearingNo.721 of 1988 impugned this order of 22-12-1987. That cameto be disposed of with the following order and direction:- “4.In the circumstances, rule is made absolute in termsof prayer clause-(a) and respondent no.1 is directed toissue a fresh Show Cause Notice to the petitioner underRule 112-A of the Income Tax Rules 1962 within 12 Page 2 of 13 suresh 13-WP-2079.2018.doc weeks from today. Alongwith the said notice thepetitioner will also be furnished copies of allstatements/documents which the income tax authoritieswould like to rely upon. Thereafter a final order underSection 132(5), as it then stood, will be passed within afurther period of 8 weeks of the first date of hearing, afterre-hearing the petitioner in accordance with law. It ismade clear that if no notice under rule 112-A of theIncome-tax Rules 1962 is issued within 12 weeks fromtoday as directed, then the amount seized will be refundedto the petitioner with 6% simple interest from the date ofthe seizure till the date of return. Petition stands disposedoff in the aforesaid terms.” When this order was passed by this Court on 25-3-2008, all thatthe petitioner has done thereafter is to bring to the notice of theauthorities this Court's order and direction. However, on19-9-2008, he was informed by the Deputy Commissioner ofIncome Tax (Exhibit-D, Page 38) that the seized cash is not lyingpresently in the custody of the Commissioner of Income Tax-1,Mumbai. This fact was informed by letter of 8-9-2008. That iswhy the petitioner was requested to give information withregard to the seized cash so that the office expedites the matter.On 24-10-2008, identical reply was given by the Department toanother communication of the petitioner of 19-9-2008. Thus, thepetitioner was called upon to furnish information which would Page 3 of 13 suresh 13-WP-2079.2018.doc When this order was passed by this Court on 25-3-2008, all thatthe petitioner has done thereafter is to bring to the notice of theauthorities this Court's order and direction. However, on19-9-2008, he was informed by the Deputy Commissioner ofIncome Tax (Exhibit-D, Page 38) that the seized cash is not lyingpresently in the custody of the Commissioner of Income Tax-1,Mumbai. This fact was informed by letter of 8-9-2008. That iswhy the petitioner was requested to give information withregard to the seized cash so that the office expedites the matter.On 24-10-2008, identical reply was given by the Department toanother communication of the petitioner of 19-9-2008. Thus, thepetitioner was called upon to furnish information which would Page 3 of 13 suresh 13-WP-2079.2018.doc be useful for the Revenue to locate the seized cash, includingproviding details such as names of various officers involved inthe search action and assessment proceedings, etc.. Thepetitioner then writes a letter straightaway on 4-5-2009 andpurports to inform the authority that at the time of seizure of thecash he was assessed with A-II Ward under a PermanentAccount No.34-008-PV-1507. The petitioner then relies upon aNotice of Demand, copy of which is at Exhibit-G, Page 41. Thatis of 2-12-2009 and the Assessment Order is also dated2-12-2009. That, according to the petitioner, enables him toobtain a credit for the sum of Rs.5,00,000/- which is nothing butthe cash seized. The petitioner says that despite such an order,the cash has not been refunded and therefore purports to seek arectification of the Assessment Order on 17-5-2010 videExhibit-H, Page 47. He then says that the refund can be grantedwith interest on his furnishing an Indemnity Bond. This was therequest made on 22-9-2010. From that date till 5-7-2017 thepetitioner does nothing but writes a letter straightaway on5-7-2017. The copy of this letter at Exhibit-J, Page 50, makes an Page 4 of 13 suresh interesting reading:- “From:Kishore J TannaTanna House, 2[nd] Floor,11/A, Nathalal Parekh Marg,MUMBAI-400 001. Date: 5[th] July, 2017 ToThe Deputy Commissioner of Income TaxWard 1(2)(1)Mumbai Re:Proceeding u/s 132(5) of I.T. Act, 1961. Assessment Year 2008-09Assessment Year 2008-09Sub: Refund of Seized cash as per your letter No.DCIT 1(2)/132(5)/2008-09No.DCIT 1(2)/132(5)/2008-09 Dear Sir, This request is in continuation of our previous lettersdated 22.09.2010 [acknowledged on 23.09.10] &17.05.2010 [Acknowledged on 20.05.2010]. I, Kishore J Tanna would like to draw your attention toyour Letter No.DCIT 1(2)/132(5)/2008-09 dated 19[th]Sept., 2009 from the office of the Dy. Commissioner ofIncome-Tax 1(2), wherein you have confirmed that theassessment u/s 132(h) is completed and the seized cashshall be released. But to date I have not received anyrefund. As per the High Court Writ Petition, I amsupposed to receive the seized cash along with simpleinterest @ 6% p.a. from the date of seizure to date ofrefund. Accordingly, the interest from 25.08.1987 [date ofseizure] to 05.07.2017 works out to Rs.897,683/- Page 5 of 13 suresh [Calculation attached for your reference] I, request you to refund the seized amount ofRs.499,900.00 along with the interest due thereon at theearliest. I have attached copies of all the relevant documents foryour reference and early expedition of my request. Yours faithfully, Sd/- KISHORE J. TANNA Encl: ….” 3.The petitioner says that the reply to this, dated11-10-2017, would constitute an admission of liability andtherefore this second or subsequent writ petition, filed on4-7-2018, on the same cause of action is maintainable and inany event so also assuming it is maintainable, it is not barred bydelay and laches. Accordingly, the interest from 25.08.1987 [date ofseizure] to 05.07.2017 works out to Rs.897,683/- Page 5 of 13 suresh [Calculation attached for your reference] I, request you to refund the seized amount ofRs.499,900.00 along with the interest due thereon at theearliest. I have attached copies of all the relevant documents foryour reference and early expedition of my request. Yours faithfully, Sd/- KISHORE J. TANNA Encl: ….” 3.The petitioner says that the reply to this, dated11-10-2017, would constitute an admission of liability andtherefore this second or subsequent writ petition, filed on4-7-2018, on the same cause of action is maintainable and inany event so also assuming it is maintainable, it is not barred bydelay and laches. 4.We are unable to agree with Mr. Tiwari for in thisletter the Department says nothing new. It only says through itsIncome Tax Officer (Technical), addressed to the DeputyCommissioner of Income Tax (Headquarter), New Delhi, thatthe petitioner is pressing for refund of the cash seized and he Page 6 of 13 suresh 13-WP-2079.2018.doc has submitted a copy of panchnama of the seized cash. That,according to this officer, would enable to search out the recordsand transfer the cash amount. 5.Pertinently, the petitioner knows that these detailswhich he had provided prior as well have not resulted in thealleged admissible refund released or paid with interest. If thepetitioner was supposed to receive this amount in terms of thisCourt's order within 12 weeks from 25-3-2008, failing which itwas to earn simple interest at 6% from the date of seizure till thedate of return, then, we would have expected such a petitionerto move this Court in execution proceedings so as to enforce theorder. Chapter XXXIII of the Bombay High Court (Original Side)Rules is titled as “Rules for the Issue of Writs Under Article 226of the Constitution Other Than Habeas Corpus”. There is aspecific Rule therein, namely, Rule 647, which reads as under:- “R.647. Execution of orders. - Every order made underthis Chapter shall be executed, as if it were a decreemade in the exercise of the Ordinary Original CivilJurisdiction of this Court.” A bare perusal of this Rule would enable us to hold that every suresh 13-WP-2079.2018.doc order passed by this Court under Article 226 of the Constitutionof India can be executed as if it were a decree made in theexercise of the Ordinary Original Civil Jurisdiction of this Court.Such step is not taken as well. The Revenue should not havebeen allowed to retain the amount. However, the petitioner'sinaction from the date of this Court's order and the periodstipulated therein coming to an end, till 4-7-2018, which is thedate on which this second petition has been filed, is enough todismiss the petition. It is neither maintainable, and assuming itis, the same is clearly barred by delay and laches. No assistancecan be derived from the Assessment Order which, in any event,is dated 2-12-2009, or the communication at Page 50, dated5-7-2017. 6.It is shocking and surprising that Mr. Tiwari wouldargue that there is no period of limitation prescribed by theLimitation Act, 1963 for bringing a Writ Petition to this Court.Hence, this petition, according to him is maintainable. However,he has no answer to our query as to how a second writ petitionwould lie when the cause of action is essentially the same. All Page 8 of 13 suresh 13-WP-2079.2018.doc that Mr. Tiwari would argue is that after this Court's order anassessment is made and he relies upon a copy of the order inthat behalf at pages 45-46 of the paper-book. He then relies onthe letter, copy of which is at page 47 of the paper-book andsays that this is an application for rectification of the mistake in the Assessment Order. This reads as under:- “Date: 17[th] May, 2010 To, The Deputy Commissioner of Income TaxCircle 1(2)Mumbai Dear Sir, Re:-Mr. Kishore J. Tanna Page 8 of 13 suresh 13-WP-2079.2018.doc that Mr. Tiwari would argue is that after this Court's order anassessment is made and he relies upon a copy of the order inthat behalf at pages 45-46 of the paper-book. He then relies onthe letter, copy of which is at page 47 of the paper-book andsays that this is an application for rectification of the mistake in the Assessment Order. This reads as under:- “Date: 17[th] May, 2010 To, The Deputy Commissioner of Income TaxCircle 1(2)Mumbai Dear Sir, Re:-Mr. Kishore J. Tanna Sub:- Rectification U/s. 154 of Assessment orderpassed U/s.143(3) rws 147 of the IncomeTax Act This is in reference to above we on behalf of our clientacknowledge the receipt of your above order and wish tostate as under. While passing the order you have accepted the incomereturned by our client. However while giving credit fortaxed paid you have not given the credit for cashamounting to Rs.5,00,000/= seized at the time of search.We wish to draw your kind attention to the letter dt. 19[th]September, 2009 written by you predecessor wherein hehas confirmed that assessment U/s.132(h) is completedand seized cash is not to be retained (copy enclosed). The Page 9 of 13 suresh assessment U/s.143(3) is subsequently completed and noaddition is made hence the seized cash retained by theDepartment towards taxed paid should be considered astax credit and be refunded to my client. In view of above circumstances I request you to rectifyyour above order u/s.154 of Income Tax Act, 1961 bygiving credit for taxes paid amounting to Rs.5,00,000/=and refund the amount alongwith interest immediately. Thanking You, Your's faithfully, For Rajendra D. Joshi & Co. Chartered Accountants Sd/- (R.D. Joshi) Proprietor Encl: 1. Copy of letter dated 19[th] September, 20092. Copy of Assessment order passed U/s.143(3)” Mr. Tiwari would argue that the above furnishes a fresh cause of action. Admittedly, no appeal is filed to challenge theAssessment Order dated 2-12-2009 even after no cognisance istaken of the request to rectify it. Mr. Tiwari would submit that itis the respondent-Department's fault and when it fails to complywith this Court's order and addresses a communication at page51 dated 11-10-2017, we must not throw out this petition ontechnical grounds. Page 10 of 13 suresh 13-WP-2079.2018.doc 7.We are unable to agree with him. The Department inthe Assessment Order expressly refers to this Court's earlierorder in the petitioner's Writ Petition No.721 of 1988. Still itmakes no order of refund. If this is an erroneous order and theDepartment failed to rectify it, then, the petitioner's remedy wasto challenge it. He does nothing of this kind in the sense heneither avails of the remedies under the I.T. Act, 1961 normoves any legal forum from September, 2010 to July, 2017. TheDepartment's letter at page 51 is not the only document to berelied on to maintain a second writ petition. That must be readwith all the prior communications and the Assessment Order. Soread, it is apparent that what the Department says in 1987-88 ismaintained even in 2009-10. Hence, there is no fresh cause ofaction. The order of this Court is not executed nor is the aboveAssessment Order challenged in Appeal. The appellate remedy isbarred by limitation admittedly. This writ petition cannot betreated an Income Tax Appeal nor can it be entertained byallowing the petitioner to get over the period of limitationprescribed, for filing of an appeal, by the I.T. Act. Either way this Page 11 of 13 suresh 13-WP-2079.2018.doc writ petition is not maintainable. All the more when we havemade reference to the above provision in the Bombay HighCourt (Original Side) Rules. Page 11 of 13 suresh 13-WP-2079.2018.doc writ petition is not maintainable. All the more when we havemade reference to the above provision in the Bombay HighCourt (Original Side) Rules. 8.In the light of the aforesaid discussion, no writpetition could have been brought by relying on thecommunication from the Revenue. We are unable to agree withthe petitioner for the simple reason that this Court is not obligedto entertain belated and stale claims. The writ jurisdiction is notmeant to confer benefit or enable litigants who sleep over theirrights to derive an advantage for themselves. The writjurisdiction is equitable and discretionary and if people like thepetitioner, who is a businessman and prudent enough to knowas to how monies, allegedly retained illegally, have to berecovered promptly and expeditiously. He does nothing despitea favourable order from this Court for more than a decade. Sucha litigant does not deserve any relief in our discretionary andequitable jurisdiction. The jurisdiction is extraordinary as well. Itis not meant to get over the bar prescribed in the Limitation Act,1963 for bringing a suit either. This indirect and oblique way of Page 12 of 13 SureshJagdishSajnawat suresh 13-WP-2079.2018.doc seeking a discretionary relief has to be discouraged. The writpetition is, therefore, dismissed on the ground of maintainability and delay and laches. (B.P. COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.) Digitally signedby SureshJagdishSajnawatDate:2018.09.2417:38:20 +0530 Page 13 of 13