Madras High Court
Mr.A.Ramesh vs Government Of India on 10 October, 2022
Author: Anita Sumanth
Bench: Anita Sumanth
W.P.No.26538 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.10.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.No. 26538 of 2022 and
WMP.No.25595 of 2022
Mr.A.Ramesh ...Petitioner
Vs.
1.Government of India,
Ministry of Finance,
Income Tax Department,
Office of the Deputy Commissioner of Income Tax
(Benami Prohibition)
Central CIR 3(4) Chennai,
Room No.104, 1t Floor,
Income Tax Investigation Wing Building,
46, M.G.Road, Nungambakkam,
Chennai-600034
2.The Branch Manager,
State Bank of India,
Tiruvannamalai Town Branch,
No.138, Big Street,
Tiruvannamalai.
3.Deputy Commissioner of Income Tax,
Central Circle, 3 (4),
Chennai.
(R3 suo motu impleaded vide this order) ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of certiorari calling for the records in respect of impugned order
proceedings in DIN & Notice No.ITBA/COMF/17/2021-22/1039391308
1
https://www.mhc.tn.gov.in/judis
W.P.No.26538 of 2022
(1), dated 04.02.2022 passed by the 1st respondent to quash the same.
For Petitioner : Mr.Kannan
For Respondent : Mr.ANR Jayaprathap [R3]
Junior Standing Counsel
ORDER
The petitioner claims to be a driver in the Tamil Nadu State Transport Corporation (Villupuram) Limited, presently working in Thiruvannamalai Depot. During the year 2019, there had been certain reports made to the Election Surveillance Team from the RDO Returning Officer, Harur Constituency regarding cash seizure of a sum of Rs.3.47 crores.
2. Upon receipt of the information, the officials of the Benami Prohibition Unit had surveyed the premises and found cash amounting to Rs.3,47,51,100/- in bags, in a TNSTC bus bearing vehicle registration no. TN 29 N 2436.
3. One J.Selvaraj, who was holding the cash was detained and had identified himself as a conductor. Along with the seized cash, a bank passbook had been found which, admittedly belonged to the petitioner herein. The petitioner had tendered explanation for the same that I consciously refrain from reference as being immaterial to decide the lis arising in this writ petition.
2 https://www.mhc.tn.gov.in/judis W.P.No.26538 of 2022
4. Thereafter, proceedings had been initiated both under the provisions of the Prohibition of Benami Properties Transactions Act, 1988 (in short 'PBPT Act') as well as the Income Tax Act, 1961 (in short 'IT Act').
5. An order of assessment had come to be passed under the IT Act on 28.09.2021 which is stated to be pending in appeal before the Commissioner of Income Tax (Appeals). No stay application has been filed. An order under Section 24(4) of the PBPT Act was passed on 16.02.2022, as against which the petitioner states that he is in appeal before the Tribunal constituted under the PBPT Act.
6. The impugned order of attachment has come to be passed by the Officials of the Income Tax Department attaching the salary of the petitioner for appropriation as against the dues arising from order of assessment dated 28.09.2021. To be noted that the assessed income under that order has been computed at a sum of Rs. 3.74 crores and a demand of Rs.3,35,66,840/- has been raised.
7. The impugned order has, in fact, been passed by the Deputy Commissioner of Income Tax, Central Circle No.3 (4), Chennai whereas, the petitioner has erroneously proceeded on the basis that it is the Deputy Commissioner of Income Tax (Benami Prohibition), Central Circle, 3 (4), 3 https://www.mhc.tn.gov.in/judis W.P.No.26538 of 2022 Chennai, who has passed the same. The proper party has thus not been arrayed as respondent.
8. To be noted that the order under Section 24 (4) of the PBPT Act has been passed by R1, which is stated to be pending in appeal before the Tribunal. That order is irrelevant to the lis in the present writ petition since the garnishee notice has been issued by the assessing authority under the Income Tax Act to secure the demand arising from the income tax assessment order.
9. This writ petition is hence not maintainable for want of proper parties being arrayed. However, bearing in mind the profile of the petitioner, the Deputy Commissioner of Income Tax, Central Circle, 3(4), Chennai is impleaded suo motu as R3, for whom Mr.ANR Jayaprathap, learned Junior Standing Counsel accepts notice. Let the cause title be amended to reflect this impleadment.
10. In light of the order passed now, no notice is thought necessary to either R1 and R2 and it would suffice that learned Standing Counsel for the Income Tax Department, who has taken notice for R3, be heard.
11. Since the petitioner has availed the statutory remedy of appeal, it 4 https://www.mhc.tn.gov.in/judis W.P.No.26538 of 2022 is appropriate that necessary orders in regard to interim protection are also obtained from the appellate authority. It would not be appropriate for this Court to intervene only for the purpose of grant of interim protection, as such interim protection, if any, would fall within the discretion of the appellate authority.
12. Thus, and for the aforesaid reasons, I am not inclined to intervene in the matter and the impugned order of attachment is left undisturbed. However, liberty is granted to the petitioner to move the Assessing and/or the Appellate authorities under the IT Act, as he may be advised, seeking appropriate interim protection. Such stay application, if and when filed, shall be disposed by the Authority within a period of three weeks from date of receipt thereof, after hearing the petitioner.
13. The petitioner would submit that his salary is the only source of income and that he does not have financial resources to meet any portion of the demand impugned before the Appellate authority. He would also cite family exigencies, including the upkeep of a special child and paucity of funds in this regard.
14. Let these submissions be made before the Authority before whom the 5 https://www.mhc.tn.gov.in/judis W.P.No.26538 of 2022 stay application may be filed. The Authority while disposing the stay application shall take note of the trifecta of conditions, being existence of a prima facie case, financial stringency and balance of convenience.
15. With this, the writ petition stands dismissed, though with liberty as aforesaid. No costs. Connected miscellaneous petitions is closed.
10.10.2022 Index : Yes/No Speaking Order/Non speaking Order ska Note: Upload this order on 12.10.2022.
(ii) Registry is directed to carry out necessary amendments to the cause-title.
To
1.Government of India, Ministry of Finance, Income Tax Department, Office of the Deputy Commissioner of Income Tax (Benami Prohibition) Central CIR 3(4) Chennai, Room No.104, 1t Floor, Income Tax Investigation Wing Building, 46, M.G.Road, Nungambakkam, Chennai-600034 6 https://www.mhc.tn.gov.in/judis W.P.No.26538 of 2022
2.Deputy Commissioner of Income Tax, Central Circle, 3 (4), Chennai.
7 https://www.mhc.tn.gov.in/judis W.P.No.26538 of 2022 DR.ANITA SUMANTH,J.
Ska W.P.No. 26538 of 2022 and WMP.No.25595 of 2022 10.10.2022 8 https://www.mhc.tn.gov.in/judis