Jharkhand High Court
Ramjee Power Construction Ltd. vs Union Of India & Ors on 23 January, 2012
Author: Prakash Tatia
Bench: Chief Justice, P. P. Bhatt
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(T) No. 27 of 2012
Ramjee Power Construction Ltd. ... Petitioner
Versus
Union of India & Others ...Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE P. P. BHATT
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For the Petitioner : Mr. Sumeet Gadodia, Advocate
For the Respondents : Mr. Deepak Roshan, Advocate
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Order No. 05 Dated 23rd January, 2012
Learned counsel for the petitioner vehemently
submitted that he is an old assessee of the Income Tax
Department and for the year 2003-04 he declared his income
to be ` 36,47,500/- against which income of the petitioner
was assessed to the tune of ` 47,43, 310/- under Section
143(3) of the Income Tax Act. In appeal, the said order of
addition of income, was set aside and matter was remanded
to the Assessing Officer who accepted the returned income
submitted by the writ petitioner. For the year 2004-05, the
assessee petitioner declared his income to be ` 64,53,070/-
whereas the Assessing Officer assessed the income to the
tune of ` 1,18,93,070/- under Section 143(3). However,
petitioner's appeal against the said assessment order was
allowed and that addition was set aside and the order of
C.I.T.(Appeals) was confirmed by the I.T.A.T. For the year
2005-06 the petitioner-assessee declared his income to be
` 1,06,27,862/- whereas his income was assessed by the
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Assessing Officer to the tune of ` 3,76,27,860/- under
Section 143(3). However, C.I.T.(Appeals), in the appeal
preferred by the writ petitioner, only added ` 1,85,200/- to
the declared income of the writ petitioner. For the year
2006-07, the declared income of the petitioner was
` 78,57,635/-, which has been assessed by the Assissing
Officer to the tune of ` 3,09,55,402/- under Section 143(3)
which is the subject matter in the appeal preferred by the
writ petition before the C.I.T.(Appeals).
In this year, a writ petition was preferred by the writ
petitioner i.e. W.P.(T) No.1247 of 2009 wherein direction
was issued to the C.I.T.(appeals) by this Court on 26.11.2010
to decide the appeal expeditiously and till then no coercive
action be taken against the writ petitioner. The said appeal
has not yet been decided and accordingly to learned counsel
for the parties, that appeal was not decided because the post
of C.I.T.(Appeals) is lying vacant since long. However,
learned counsel for the Revenue submitted that now the new
officer has been appointed as C.I.T.(Appeals) but he has not
taken charge as yet.
Be it as it may be, fact remains that for the assessment
year 2006-07, no recovery is pending under regular
assessment against the writ petitioner. For the assessment
year 2007-08 the assessee declared income to the tune of
` 25,01,700/- which was accepted by the Assessing Officer.
For the assessment year 2008-09 the declared income of the
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assessee was ` 25,82,561/- which too was accepted by the
Assessing Officer and then for the year 2009-10 declared
income of the assessee is ` 4,80,42,336/- which too was
accepted. However, these are the regular assessment of the
assessee.
On 31st October, 2009, in the course of search and
seizure under Section 132 of the Income Tax Act, the
department claimed that some incriminating documents
were found and, therefore, block assessments are to be
made and said proceedings are going on since 31st October,
2009. According to learned counsel for the petitioner, in that
situation, under Section 153A, the proceedings should have
been completed within the period of 21 months, however,
that has not been completed but after about 17 months, first
notice was served upon the writ petitioner which is dated
30th March, 2011 and thereafter an order of attachment of
the petitioner's various fixed deposits, bank accounts,
insurance policies and immovable properties, has been
passed on 30th August/1st September, 2011, copy of which
has been placed on record as Annexure-4. Then second
attachment order was passed on 22nd September, 2011
attaching all payments against the bills outstanding with the
J.S.E.B. of the writ petitioner.
The contention of the learned counsel for the writ
petitioner is that, by this, all properties of the writ
petitioner, movable and immovable, including bank accounts
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as well as even accounts whereunder petitioner is working
on turnkey projects, all have been attached and that too
without affording any opportunity of hearing to the writ
petitioner and furthermore, without assigning any reason
and not only this, the Revenue even did not disclose the
prima facie liability of the writ petitioner in these
proceedings and, therefore, this is a colourable exercise of
power under Section 281B as well as arbitrary and,
furthermore, is malafide.
Learned counsel for the petitioner relied upon
judgments delivered in the case of Gandhi Trading Vs.
Assistant Commissioner of Income Tax & Ors. reported in
158 CTR 512 (Bom) and in the case of Raghuram Grah (P)
Ltd. & Anr. Vs. Income Tax Officer & Ors. reported in 281
ITR 147 (All) and submitted that such power cannot be
exercised in such an arbitrary manner which shocks the
conscious of any person. According to learned counsel for
the writ petitioner, in fact, at present there is no order of
prima facie determination of the liability of the writ
petitioner and not only this, according to learned counsel for
the writ petitioner, the amount of about Rs. 69 lacs and odd,
is yet to be refunded by the Income Tax Department to the
writ petitioner under validly passed orders.
The Revenue has replied to the writ petition and
disclosed in this manner :-
"At the outset it is humbly stated and submitted that in
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the Madhu Kora Group of cases a search and seizure
operation was conduced on the petitioner and several
incriminating documents were seized."
Therefore, according to Revenue itself, it is a high
profile case and in counter affidavit it has been stated that
"there was already an outstanding demand of ` 1,39,91,620/-
in the case of petitioner for A.Y. 2006-07" and in spite of the
fact that for recovery of that amount, coercive action has
been stayed by this Court in W.P.(T) No. 1247 of 2009 vide
order dated 26.11.2010.
Be that as it may, this is the stand of the Revenue that
"further there is no provision to quantify the tax liability that
is going to arise as it can be determined only once the
assessment order has been passed" and then it has been
stated that "attachment was made only on the outstanding
bills as on the date of order of attachment and it did not
asked JSEB to stop the payment of subsequent bills" and,
thereafter, very candidly it has been submitted that the
order was passed in the interest of Revenue and vide office
letter dated 13.12.2011 the petitioner was requested that in
case of any grievance against the said attachment, it can
come up with proposals like furnishing of bank guarantee
etc. which can be considered sympathetically.
Learned counsel for the Revenue also submitted that a
questionnaire was given to the writ petitioner but he did not
reply and because of complexity of the case, obviously in
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accounts, the proceeding could not be completed within the
statutory period of limitation of 21 months and, therefore,
the extension of the period of limitation has been invoked by
invoking the provisions of Section 142(2)(A) of the Income
Tax Act.
Looking to the fact that during the course of search
and seizure with respect to the infamous case of Madhu
Kora, the former Chief Minister of the Jharkhand, search and
seizure operation was conducted on the petitioner on
31.12.2009and first notice was given to the writ petitioner on 30th March, 2011 i.e. after 17 months and, thereafter, the questionnaire was served upon the writ petitioner on 9th December, 2011. The department's plea that to save the interest of the Revenue, attachment orders were passed on 30th August, 2011 and then on 27th September, 2011, requires serious consideration that how the department has proceeded in the matter and, therefore, the department is directed to give the list of dates and shall also keep that record present before this Court for perusal.
Learned counsel for the Revenue submitted that he will comply with this order by day after tomorrow.
In view of the above, put up on 25.01.2012 at 2.15 pm. (Prakash Tatia, C.J.) (P. P. Bhatt, J) Birendra