Wp(C)/23769/2008 Of Universal Empire Educational Society v. Chief Commissioner Of Income Tax And Anr

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 23769 of 2008(D) -------------------------- PETITIONER: ------------ UNIVERSAL EMPIRE EDUCATIONAL SOCIETY, 1ST FLOOR, MERCY ESTATE, M.G.ROAD, RAVIPURAM, COCHIN, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENTS: ------------- 1. THE CHIEF COMMISIONER OF INCOME TAX KERALA REGION, C.R.BUILDING, I.S.PRESS ROAD, COCHIN. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-I, ERNAKULAM. ADDL3. DEPUTY DIRECTOR OF INCOME TAX (EXEMPTIONS), KOCHI. (ADDL. R3 IS IMPLEADED AS PER ORDER DATED 12.8.2008) BY ADV. SRI.P.K.R.MENON,SR.COUNSEL,GOI(TAXES) FOR R1 & R2 SRI.GEORGE K. GEORGE, SC FOR IT FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN,J.------------------------- W.P ( C) No. 23769 of 2008--------------------------Dated this the 28[th ] August, 2008 J U D G M E N T The petitioner, a Society registered under theTravancore Cochin Literary Scientific and CharitableSocieties Registration Act, 1955, is an assessee under theIncome Tax Act,1961. On 11.6.2002, a search operationunder Section 132 of the Income Tax Act was conductedin the premises of Universal Institute of AdvancedStudies and Research Private Limited, an educationalinstitution run by the petitioner society. In the search,many documents and files were seized. One among themwas the original of sale deed dated 8.10.2001 registeredas document No.3634 of 2001 of Sub Registrar's Office,Puthencruz, executed by Rev.Fr.Joseph Puthussery, a nonresident Indian in favour of Universal EmpireEducational Society. The document was, however,seized from the premises of Sri. Sudheer Gopi, oneamong the members of the petitioner society. Pursuant to the search conducted on 11.6.2002, proceedings wereinitiated against the petitioner society under Section 158-BC read with Section 158-BD and Section 143 (3) of theIncome Tax Act,1961. By Exhibit-P2 order passed on26.5.2006, the Deputy Commissioner of Income Tax,Central Circle-1, Ernakulam levied income tax andsurcharge aggregating to Rs.10,50,368/- on the petitioner.The petitioner carried the matter in appeal. By Exhibit-P3order passed on 25.9.2006, the Commissioner of IncomeTax (Appeals)-1, Kochi set aside Exhibit-P2. The petitionerthereupon moved the second respondent who seized thedocuments to return the original of sale deed No.3634 of2001. When that request was not attended to, this writpetition was filed for a direction to the respondents toreturn the said document. 2.The learned standing counsel appearing for therespondents has filed a statement incorporating theinstructions received from the additional third respondent.It is stated that against Exhibit-P3, a Second Appeal hasbeen filed before the Income Tax Appellate Tribunal and as the appeal is pending, the document cannot be releasedat this stage. 2.The learned standing counsel appearing for therespondents has filed a statement incorporating theinstructions received from the additional third respondent.It is stated that against Exhibit-P3, a Second Appeal hasbeen filed before the Income Tax Appellate Tribunal and as the appeal is pending, the document cannot be releasedat this stage. 3.I have heard Sri.V.G.Arun, the learned counselappearing for the petitioner and Sri.George K. George, thelearned standing counsel appearing for the respondents.The fact that Exhibit-P2 order has been set aside inExhibit-P3 is not in dispute. It is also not disputed that thesale deed in question is in custody of the respondents. Theonly ground put forward for not returning the document isthat a Second Appeal filed by the Revenue from Exhibit-P3is pending before the Income Tax Appellate Tribunal. Thelearned counsel for the petitioner submitted that the claimof the Revenue can only be for the tax, if any, payable bythe petitioner and that even if Exhibit-P3 is set aside, it canonly lead to restoration of Exhibit-P2. The learned counselfor the petitioner further submitted that the petitioner isprepared to furnish bank guarantee for the amountcovered by Exhibit-P2 and that on such bank guaranteebeing furnished, the respondents may be directed torelease the sale deed referred to in prayer (i) of the writ petition. Sri.George K.George, the learned standingcounsel appearing for the respondents did not seriouslydispute the said submission. Having heard the learned counsel appearing on either side, I am of the opinion that the writ petition canbe disposed of with a direction to the respondents torelease the original of the sale deed referred to in prayer(i) of the writ petition to the petitioner (after retaining aphotostat copy for official purposes) on the petitionerfurnishing bank guarantee for the sum of Rs.10,50,368/- tothe satisfaction of the additional third respondent. Thisshall be done on the date on which the petitioner furnishesthe bank guarantee. If Exhibit-P3 is sustained and theSecond Appeal filed by the Revenue from Exhibit-P3 isdismissed, the respondents shall forthwith return the bankguarantee to the petitioner. ma (P.N.RAVINDRAN, JUDGE) W.P ( C) No. 23769 of 2008 W.P ( C) No. 23769 of 2008