Wp(C)/21345/2018 Of Yoosaf.n.a v. Deputy Director Of Income Tax (Investigation)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940 WP(C).No. 21345 of 2018 PETITIONER YOOSAF.N.A S/O.ABOOBACKER KUTTY, POYILIL HOUSE, KODUVALLAY P O, KOZHIKODE-673572. BY ADVS.SRI.P.RAGHUNATH SRI.PREMJIT NAGENDRAN RESPONDENTS: 1. DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATION) INCOMETAX OFFICE, AAYAKKAR BHAVAN, MANANCHIRA, CALICUT-673001. 2. ASSISTANT COMMISSIONER OF INCOMETAX. BENAMI PROHIBITION UNIT, POORNIMA BUILDING, NEAR MANORAMA JUNCTION, PANAMPILLY NAGAR, KOCHI-682036. 3. ADDITIONAL COMMISSIONER OF INCOMETAX. (APPROVING AUTHORITY), BENAMI PROHIBITION UNIT, POORNIMA BUILDING, NEAR MANORAMA JUNCTION, PANAMPILLY NAGAR,KOCHI-682036. 4. ADJUDICATING AUTHORITHY UNDER THE PROHIBITION OF BENAMY PROPERTY TRANSACTIONS ACT: PARLIAMENT STREET: ROOM NO.26:4TH FLOOR, JEEVAN DEEP BUILDING: NEW DELHI:110001. 5. UNION OF INDIA MINISTRY OF FINANCE: NEW DELHI:110001, REP.BY SECRETARY:MINISTRY OF FINANCE NEW DELHI, BY SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-07-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1 PHOTOCOPY OF THE SUBMISSION FILED BY YOOSAF DATED 12.04.2017. DATED 12.04.2017. EXHIBIT P2 PHOTCOPY OF THE AFFIDAVIT FILED YOOSAF DATED 12.04.2017. 12.04.2017. EXHIBIT P3 PHOTOCOPY OF ORDER IN CRMP NO.3953/2017 DATED 24.07.2017. 24.07.2017. EXHIBIT P4 PHOTOCOPY OF YOOSAF DATED 24.04.2017. EXHIBIT P5 PHOTOCOPY OF THE NOTICE DATED 13.12.2017 ISSUED BY THIRD RESPONDENT. BY THIRD RESPONDENT. EXHIBIT P6 PHOTOCOPY OF THE ORDER DATED 12.03.2018 PASSED BY THE SECOND RESPONDENT. BY THE SECOND RESPONDENT. EXHIBIT P7 PHOTOCOPY OF THE ORDER DATED 12.03.2018 PASSED BY THE THIRD RESPONDENT. BY THE THIRD RESPONDENT. EXHIBIT P8 PHOTOCOPY OF THE NOTICE DATED 13.04.2018 ISSUED BY FOURTH RESPONDENT. BY FOURTH RESPONDENT. DAMA SESHADRI NAIDU, J. ------------------------------------------ W.P.(C) No. 21345 of 2018 (P) ------------------------------------------ Dated: 06[th] July 2018 J U D G M E N T The petitioner was found with money, the source of whichhe could not explain. Then, the Income Tax department tookcustody of the money—they attached it, so to say—and beganproceedings under The Prohibition of Benami Property TransactionsAct, 1988. Later, the authorities issued Ext.P6 proceedings,confirming the provisional attachment made earlier.Eventually, they also issued Ext.P8 show cause notice. 2. The learned counsel for the petitioner has strenuously contended that money cannot be treated as “Benami property.”According to him, it ought to have been the proceeds of someproperty, which, by itself, ought to be Benami. W.P.(C) No.21345/2018 3. To elaborate, the learned counsel has also submitted that the burden lies on the department, at least prima facie, toallege that the money was generated out of the proceeds of abenami property. Here, according to him, that allegation isabsent. 4. The learned counsel has also submitted that, though Ext.P8 is styled as a show cause notice, the authorities, in fact,have already concluded—wrongly though—that the moneyseized is a benami asset. So Ext.P8 cannot be termed a showcause notice. For that reason, the writ petition does not faceany the procedural constraint: alternative remedy. He has alsocontended that once the authorities have no jurisdiction, thenbefore this Court, under Article 226 of the Constitution, even ashow-cause notice could be questioned. 5. The learned Standing Counsel, on his part, has drawnmy attention to Section 24(4) of the Act. He contends that 4. The learned counsel has also submitted that, though Ext.P8 is styled as a show cause notice, the authorities, in fact,have already concluded—wrongly though—that the moneyseized is a benami asset. So Ext.P8 cannot be termed a showcause notice. For that reason, the writ petition does not faceany the procedural constraint: alternative remedy. He has alsocontended that once the authorities have no jurisdiction, thenbefore this Court, under Article 226 of the Constitution, even ashow-cause notice could be questioned. 5. The learned Standing Counsel, on his part, has drawnmy attention to Section 24(4) of the Act. He contends that W.P.(C) No.21345/2018 Ext.P6 only confirms a decision without concluding about the nature of the proceeds. He has also submitted that Ext.P8, pureand simple, is a show-cause notice. And whether the propertyis tainted lies in the petitioner’s “special knowledge.” Underthese circumstances, the petitioner must produce before theauthorities sufficient material or place his defence, contendsthe learned Standing Counsel, in response to Ext.P8. 6. Heard the learned counsel for the petitioner and thelearned Standing Counsel for the respondents. 7. I have perused the Ext.P8; I reckon it is a show-cause notice. It only requires the petitioner to explain how he came to possess that money. After all, the source of money and itsnature are in the “special knowledge” of the possessor. Indeed,the petitioner could take all possible pleas before theauthorities, including the plea about their jurisdiction and alsoabout the discharge of primary burden, if any, on the official's part. 8. Under these circumstances, I find no merit in the writpetition because, as is well settled, there lies no writ petitionagainst a show-cause notice. I, however, clarify that, aftersubmitting his reply to Ext.P8, the petitioner can invite aresponse from the authorities and initiate steps, if he is stillaggrieved, to assail the order to be passed. So I dismiss the writ petition. No order on costs Sd/-DAMA SESHADRI NAIDUJUDGE jjj06/07/2018