Wp/2870/2013 Of Shri. Raghunath Bhaskar Chitale And Anr v. Additional Director Of Income Tax, Investigation Unit Iv And Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION WRIT PETITION NO.2870 OF 2013 Shri Raghunath B. Chitale& Another..Petitioners.V/s.Additional Director of Income Tax,Investigation Unit IV & Others..Respondents. Mr. S. B. Deshmukh, for the Petitioners. Mr. Vimal Gupta, Sr. Advocate, for Respondent Nos.1 to 4.Ms. Vaishali Nimbalkar, AGP, for Respondent No.5. Mr. A. A. Kumbhakoni, Sr. Advocate with Mr. Shardul Singh and Mr. Vaibhav Gaikwad, for Respondent No.6. CORAM: M.S.SANKLECHA, & M.S.SONAK, JJ.DATE : 2[nd] DECEMBER, 2014. P.C:- In this Petition under Article 226 of the Constitution of India, the grievance of the Petitioner as of today is restricted to:- (a)non-furnishing copies of documents in their application dated 28[th]June, 2012 under Section 138 of the Income Tax Act, 1961 (the Act) by the Commissioner of Income Tax, in spite of order dated 22[nd] October, 2012 of this Court; andJune, 2012 under Section 138 of the Income Tax Act, 1961 (the Act) by the Commissioner of Income Tax, in spite of order dated 22[nd] October, 2012 of this Court; and (b)action be initiated against the Additional Director of Income Tax (Investigation), for having made incorrect statement in Affidavit dated 9[th] April, 2012 filed in an earlier Writ Petition bearing W. P. No.5886 of 2011 filed by the present Petitioners along with one Mr. Pandit.(Investigation), for having made incorrect statement in Affidavit dated 9[th] April, 2012 filed in an earlier Writ Petition bearing W. P. No.5886 of 2011 filed by the present Petitioners along with one Mr. Pandit. 2In Writ Petition No.5866 of 2011, copies of documents in possession of the Revenue consequent to a search was sought for.On 22[nd ]October, 2012, this Court disposed of the Writ Petition No.5866 of 2011 by directing the Revenue to consider the Petitioner's application dated 28[th ]June, 2012 made under Section 138 of the Act and pass appropriate orders on the same in accordance with law. 3It is the Petitioner's grievance that the order dated 22[nd ]October, 2012 of this Court has not been complied with by the Revenue and the documents have not been furnished. 4The Deputy Director of the Income Tax has filed affidavit in August, 2013 wherein it is specifically stated that application dated 28[th ]June, 2012 has already been disposed of by order dated 14[th] January, 2013 of the Commissioner of Income Tax. This was in terms of the order dated 22[nd] October, 2012 of this Court. It is also specifically stated in the affidavit that the order has been dispatched to the first Petitioner i.e. Mr. Pandit in Writ Petition No.5866 of 2011 on 16[th] January, 2013. The Counsel for the Petitioners state that no such order has been received by the Petitioners herein. 5Mr. Vimal Gupta, learned Senior. Counsel appearing for the Revenue very fairly states that in case Petitioner approach the Commissioner of Income Tax (Central-1), Pune, a copy of the order dated 14[th] January, 2013 passed on the application dated 28[th] June, 2012 would be given/handed over to the Petitioner. Mr. Deshmukh, learned Counsel appearing for the Petitioner states that he would approach the Commissioner of Income Tax (Central-1) within four weeks from today. 6In view of the above, the first grievance of the Petitioner of the non-compliance of the order dated 22[nd] October, 2012 passed in Writ Petition No.5866 of 2011 does not survive. 5Mr. Vimal Gupta, learned Senior. Counsel appearing for the Revenue very fairly states that in case Petitioner approach the Commissioner of Income Tax (Central-1), Pune, a copy of the order dated 14[th] January, 2013 passed on the application dated 28[th] June, 2012 would be given/handed over to the Petitioner. Mr. Deshmukh, learned Counsel appearing for the Petitioner states that he would approach the Commissioner of Income Tax (Central-1) within four weeks from today. 6In view of the above, the first grievance of the Petitioner of the non-compliance of the order dated 22[nd] October, 2012 passed in Writ Petition No.5866 of 2011 does not survive. 7The other grievance made by the Petitioner is that the Officer of the Income Tax had in his communication dated 31[st] March, 2011 and in the affidavit dated 9[th] April, 2012 filed in this Court in Writ Petition No.5866 of 2011 has specifically stated that search in 2010 was conducted in respect of Respondent No.6 herein in his individual capacity and no search in respect of the Trust was carried out in 2010. According to the Petitioner, the aforesaid statement is incorrect in view of the fact that the appraisal report dated 5[th] April, 2011 seems to indicate to the contrary i.e. the search was carried out in respect of the Trust. 8Mr. Vimal Gupta, learned Senior Counsel appearing for the Revenue strongly opposes the reliance placed upon the appraisal report. This report, according to him is an internal document and is only a prima facie view of the Investigating Officer with regard to the search. The final determination of the person liable and the extent of liability has to be done by Assessing Officer on the basis of appreciation of evidence before him and not on the basis of the appraisal report. 9Be that as it may, on the insistence of the Petitioner's Advocate, we went through the communication dated 5[th] April, 2011 addressed by the Additional Director of Income Tax (Investigation) to the Commissioner of Income Ta which according to the Petitioner is indicative of the incorrect statement on oath in affidavit by Additional Director of Income Tax (Investigation). We find that aforesaid communication of 5[th] April, 2011 refers to 2010 search concludes with the following advise to the Assessing Officer:- “The Assessing Officer is advised to make additions amounting to Rs.106.41 Crores in different years as mentioned above in the case of Dr. Uday Salunkhe after examining correctness of the working given in the statement. He should also examine other documents seized and incorporate other undisclosed income, if any. He should look forward to invoke penalty and prosecution provisions as per law”. (emphasis supplied) The conclusion in the above communication dated 5[th] April, 2011 does not in any manner appears to be contrary to the stand taken in the affidavit dated 9[th] April, 2012 and the communication dated 31[st ]March, 2011 both by the Additional Director of Income Tax (Investigation). In both the affidavit as well as in the communication, a statement has been made that the search in 2010 was carried out upon Respondent No.6 in his individual capacity. Therefore, the second grievance of the Petitioner is without substance. 10Accordingly, we see no reason to entertain the present Petition. However, it is made clear that in case Petitioner approach the Commissioner of Income Tax (Investigation), for copy of the order dated 14[th] January, 2013, the same will be made available to the Petitioner. Mr. Kumbhakoni, learned Senior Counsel appearing for Respondent No.6 very fairly states that in deference to the Court's order dated 22[nd] October, 2012, the Revenue is obliged to give/furnish copy of the order passed to the Petitioner and he has no objection to the same. 11With the above directions, the Petition is dismissed. No order as to costs. (M.S.SONAK,J.) (M.S.SANKLECHA,J.)