Punjab & Haryana H.C : Whether the Court would come within the expression “officer” or “authority”

Counsel Appeared

R.P. Sawhney & Baldev Goel, for the Appellants : Ram Gaur, for the Respondents

S.D. AGARWALA, C.J.:

This letters patent appeal is directed against the judgment of the learned single Judge, dt. 30th Dec., 1983, [Since reported as Balbir Singh vs. CIT (1984) 40 CTR (P&H) 83 : (1984) 146 ITR 266 (P&H)].

2. The facts giving rise to the present appeal are briefly as follows : On 6th Sept., 1977, a raid was conducted at the house of Balbir Singh, who was the petitioner in the writ petition and has now died and his heirs have been brought on record as respondent Nos. 1 to 6 (accused). The raid was conducted on the basis of the First Information Report No. 242, dt. 5th Sept., 1977, under s. 411, IPC. This First Information Report was got registered by the Asstt. Sub-Inspector, Sheonath, at Police Station, Bahadurgarh, on the allegation that Balbir Singh, the petitioner in the present case and two others had amassed wealth by organising thefts at far away places and they were habitual receivers of stolen property.

On the search having been conducted on 6th Sept., 1977, police recovered currency notes of the value of Rs. 2,99,000 from the house of Balbir Singh. The police took into possession this money and this money was produced before the Chief Judicial Magistrate, Rohtak, in connection with the First Information Report referred to above under s. 411, IPC. The Chief Judicial Magistrate, on 7th Sept., 1977, ordered that the case property, namely, currency notes of Rs. 2,99,000., be deposited in the treasury at Rohtak for safe custody. The effect of these proceedings was that property worth Rs. 2,99,000 in cash came into the custody of the Court. Thereafter, Balbir Singh moved an application under ss. 451/457 of the Code for return of this money. The Chief Judicial Magistrate, Rohtak, vide his order, dt. 15th Oct., 1977, directed the police to hand over the money abovementioned in Sapurdgi to Balbir Singh. The custody of the money continued to remain with the Court, but the money was directed to be released to Balbir Singh treating him to be a sapurdar of the said money. When Balbir Singh went to collect the money from the Treasury Officer, he was informed that the Senior Superintendent of Police, Rohtak, had received a requisition from the CIT under s. 132A of the IT Act, 1961, that the money may not be released to Balbir Singh, but may be released to the officers of the IT Department as the requisition had been issued under s. 132A of the IT Act, 1961. In consequence of the requisition issued by the IT authorities, the Treasury Officer did not release the money to the petitioner in spite of the directions issued by the Chief Judicial Magistrate, Rohtak. The petitioner consequently filed the present Writ Petition No. 3583 of 1977, in this Court seeking the relief of quashing the directions issued by the IT authorities under s. 132A of the IT Act. The writ petition came up for hearing before the learned single Judge who has allowed the writ petition and quashed the requisition issued by the IT authorities. It is against this decision, dt. 20th Dec., 1983 [(1984) 40 CTR (P&H) 83 : (1984) 146 ITR 266 (P&H)] that the present letters patent appeal has been filed by the IT Department.

Learned senior standing counsel for the IT Department has urged that the view taken by the learned single Judge that a requisition could not be issued in respect of the assets which are in the custody of the Court under s. 132A of the Act is erroneous in law and, consequently, the judgment of the learned single Judge is liable to be set aside.

The relevant portion of s. 132A of the IT Act which was applicable to the case is quoted below : “132A. Power to requisition books of account, etc.—(1) Where the Director of Inspection or the CIT, in consequence of information in his possession, has reason to believe that—….. (c) any assets represent either wholly or partly income or property which has not been, or would not have been, disclosed for the purposes of the Indian IT Act,1922 (11 of 1922), or this Act by any person from whose possession or control such assets have been taken into custody by any officer or authority under any other law for the time being in force. Then, the Director of Inspection or the CIT may authorise any Dy. Director of Inspection, IAC, Asstt. Director of Inspection or ITO [hereafter in this section and in sub-s. (2) of s. 278D referred to as the requisitioning officer] to require the officer or authority referred to in cl. (a) or cl. (b) or cl. (c), as the case may be, to deliver such books of account, other documents or assets to the requisitioning officer. (2) On a requisition being made under sub-s. (1), the officer or authority referred to in cl. (a) or cl. (b) or cl. (c), as the case may be, of that sub-section shall deliver the books of account, other documents or assets to the requisitioning officer either forthwith or when such officer or authority is of the opinion that it is no longer necessary to retain the same in his or its custody…..” Sec. 132A quoted above provides that where the Director of Inspection or the CIT, in consequence of information in his possession, has reason to believe that any assets represent either wholly or partly income or property which has not been or would not have been disclosed for the purposes of the Act by any person from whose possession or control such assets have been taken into custody by any officer or authority then the Director of Inspection or the CIT may authorise any Dy. Director of Inspection, IAC, Asstt. Director of Inspection or ITO to require the officer or authority referred to in cl. (c) to deliver such assets to the requisitioning officer. The position, therefore, is that the ITO could only issue a requisition to any “officer” or “authority”.

In the instant case, the cash assets were recovered from Balbir Singh. The assets were in the custody of the Court and they were directed to be given to Balbir Singh in his sapurdgi. The giving of the assets in sapurdgi to Balbir Singh did not change the nature of the custody and the assets continued to remain in the custody of the Court. The requisition under s. 132A of the Act could be issued only to an officer or authority. The question which arises for consideration in this case is as to whether the Court would come within the expression “officer” or “authority”. The Court cannot come under the definition of either the word “officer” or “authority”. The word “Court” has acquired a universally recognised and understood connotation. The term “authority” cannot be considered to include “Court”. The “Court” cannot possibly be included in the word “officer”. In case the intention of Parliament was to include Court also as one of the bodies to which a requisition could be issued, Parliament would have provided for the same but it has not done so. It is, therefore, clear that the requisition which was issued to a Court could not have been issued by the ITO under s. 132A of the Act in respect of the assets which are in the custody of the Court. In the circumstances, we agree with the view of the learned single Judge that the ITO has no jurisdiction whatsoever to issue any requisition under s. 132A of the Act. In the instant case, the requisition under s. 132A of the IT Act was issued to the Treasury Officer. The money was in the hands of the Treasury Officer under the directions of the Chief Judicial Magistrate, Rohtak. The ITO could not take advantage of s. 132A of the Act by issuing a requisition to the Treasury Officer merely because the Treasury Officer would come under the expression “officer”. The Treasury Officer has no independent jurisdiction over the assets which were deposited with him in pursuance of the orders of the Court. The remedy available to the ITO was to apply to the Chief Judicial Magistrate for release of the money in its favour. Its remedy was not to issue a requisition under s. 132A of the Act which, in our opinion, was clearly without jurisdiction. We consequently agree with the view taken by the learned single Judge that the requisition issued on 15th Sept., 1977, was wholly without jurisdiction.

Learned senior standing counsel for the IT Department has further urged that the provisions of the Second Schedule to the IT Act which relate to the procedure for recovery of tax are indicative of the fact that it is open to an ITO to issue a requisition under s. 132A of the IT Act also to a Court. In our opinion, this argument is wholly fallacious. The Second Schedule to the IT Act lays down the procedure for recovery of tax which has been determined after due adjudication. The procedure has been prescribed for the recovery of the said tax and powers have been given to the TRO to issue an attachment order in respect of the property of the defaulter. These provisions are not indicative of any such interpretation as urged by learned counsel. In the circumstances, in our opinion, no assistance can be drawn from the procedure specified in the Second Schedule to the IT Act.

In view of the above, we do not find any merit in the appeal and dismiss the same. The parties are directed to bear their own costs.

[Citation : 203 ITR 650]