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In Re: Kanhiya Lal Om Prakash Vs. Commissioner of Income-tax and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ Petition No. 133 of 1984
Judge
Reported in(1985)49CTR(All)302; [1986]158ITR170(All); [1986]25TAXMAN149(All)
ActsIncome Tax Act, 1961 - Sections 132(8); Constitution of India - Article 226
AppellantIn Re: Kanhiya Lal Om Prakash;kanhiya Lal Om Prakash
RespondentCommissioner of Income-tax and ors.
Excerpt:
.....1, 1984. the petitioner had sufficient opportunity from may 23, 1984, to november 1, 1984, a period of more than five months to file rejoinder affidavit, but he failed to avail of the same for reasons which have not been disclosed. that apart, we are not satisfied that the petitioner has succeeded in establishing any prejudice on the facts of the instant case on account of retention of the account books, inasmuch as, as has been stated in the counter-affidavit, the petitioner was permitted to inspect the account books on various dates and he has already inspected them. 4. counsel for the petitioner then urged that the books of account were seized on october 6, 1982, and order staying the assessment proceedings was passed by this court on january 16, 1984, and there is no good reason..........yesterday, i.e., on november 10, 1984, who informed him that no one could come to allahabad to file rejoinder affidavit on account of curfew. there was admittedly no curfew before november 1, 1984. the petitioner had sufficient opportunity from may 23, 1984, to november 1, 1984, a period of more than five months to file rejoinder affidavit, but he failed to avail of the same for reasons which have not been disclosed. we are not sure whether there was curfew day before yesterday at muzaffarnagar. but it is not the case of the petitioner that there is still curfew at muzaffarnagar. nothing has been shown as to why no one came on behalf of the petitioner during these days to file a rejoinder affidavit. as already pointed out, the writ petition has not yet been admitted but the.....
Judgment:

N.D. Ojha, J.

1. The petitioner is a partnership firm carrying on business in commission agency of khandsari, jaggery and sugar. A search was made by the income-tax authorities in the business premises of the petitioner on October 6, 1982, and some books of account and documents pertaining to the assessment year 1981-82 were seized. This writ petition was filed on January 16, 1984, challenging the retention of the account books and the documents beyond 180 days as contemplated by Section 132(8) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act')

2. The case of the petitioner as taken in the writ petition is that the account books were being retained beyond the maximum period of 180 days without complying with the requirements of Sub-section (8) of Section 132 of the Act. On January 16, 1984, the standing counsel of the Income-tax Department was granted time to file a counter-affidavit and on an application for stay made along with the writ: petition, an order was passed staying assessment proceedings for the assessment year 1981-82. A counter-affidavit has been filed on behalf of the Income-tax Department, a copy whereof was served on counsel for the petitioner on May 23, 1984. On the same date, counsel for the petitioner prayed for and was granted three weeks' time to file a rejoinder affidavit. This writ petition was ordered to be listed for admission on July 25, 1984. The case was put up on August 8, 1984, with a report that even though the time granted for filing the rejoinder affidavit has expired, no rejoinder affidavit has been filed. On that date, counsel for the petitioner prayed for and was granted three weeks'further time to file a rejoinder affidavit. No rejoinder affidavit, however, was filed till October 17, 1984, and on that date three weeks' further time and no more was granted to file a rejoinder affidavit. No rejoinder affidavit has been filed even till today and when the case was taken up today, an oral request was made by counsel for the petitioner for grant of further time to file a rejoinder affidavit. Counsel for the petitioner stated that he had a talk with one of the partners of the petitioner firm day before yesterday, i.e., on November 10, 1984, who informed him that no one could come to Allahabad to file rejoinder affidavit on account of curfew. There was admittedly no curfew before November 1, 1984. The petitioner had sufficient opportunity from May 23, 1984, to November 1, 1984, a period of more than five months to file rejoinder affidavit, but he failed to avail of the same for reasons which have not been disclosed. We are not sure whether there was curfew day before yesterday at Muzaffarnagar. But it is not the case of the petitioner that there is still curfew at Muzaffarnagar. Nothing has been shown as to why no one came on behalf of the petitioner during these days to file a rejoinder affidavit. As already pointed out, the writ petition has not yet been admitted but the proceedings for assessment have been stayed. In these circumstances, we do not find it a fit case for granting any further time to file a rejoinder affidavit.

3. We have heard counsel for the petitioner but are of the opinion that it is not a fit case for interference under article 226 of the Constitution. In the counter-affidavit, it has been stated that the books of account which were seized on October 6, 1982, were needed for completing the proceedings of assessment for the year 1981-82. It has further been stated that reasons for retaining the documents and account books beyond 180 days were recorded as contemplated by Section 132(8) and were communicated to the petitioner. It is true that annexure C-1 to the counter-affidavit does not give the date on which the reasons were recorded and communicated to the petitioner but, in our opinion, that alone is not sufficient to justify a direction for the account books and the documents being returned to the petitioner particularly when assessment proceedings have been stayed by this court. Firstly, there is a presumption that in the normal course, the requirements of Sub-section (8) of Section 132 must have been complied with within the prescribed period. That apart, we are not satisfied that the petitioner has succeeded in establishing any prejudice on the facts of the instant case on account of retention of the account books, inasmuch as, as has been stated in the counter-affidavit, the petitioner was permitted to inspect the account books on various dates and he has already inspected them.

4. Counsel for the petitioner then urged that the books of account were seized on October 6, 1982, and order staying the assessment proceedings was passed by this court on January 16, 1984, and there is no good reason why the assessment proceedings for the year 1981-82 were not finalised within this period. Paragraph 18 of the counter-affidavit gives sufficient reasons on account of which the proceedings for assessment could not be finalised prior to January 16, 1984. It was stated by counsel for the Income-tax Department that the account books and documents can be returned to the petitioner once the assessment proceedings are finalised. We made an indication to counsel for the petitioner that the interim order may be got vacated to enable the finalisation of the assessment proceedings and return of the account books but he was not prepared to do so.

5. In view of the facts stated in the counter-affidavit, it appears that the books of account are needed as evidence for finalising the assessment proceedings for the year 1981-82 and it would not be in the ends of justice to permit those account books to be returned even before the finalisation of assessment proceedings. As regards the question of the petitioner being not in a position to substantiate his case without account books, suffice it to say that as stated in the counter-affidavit, the petitioner has already been permitted on various dates to inspect the books of account. If any further information is necessary, it is still open to the petitioner to make further inspection. The standing counsel for the Income-tax Department raised another technical objection that the petitioner has an alternative remedy of making a representation as contemplated by Sub-section (10) of Section 132 of the Act and the writ petition deserves to be dismissed on this ground alone. We, however, are not inclined to express any opinion on this point because as already indicated earlier, we are of the opinion that on its facts, it is not a fit case for interference under article 226 of the Constitution.

6. In the result, the writ petition fails and is dismissed and the interim order staying the assessment proceedings for the year 1981-82 is vacated.


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