MADHURI SHARMA V. DEPUTY COMMISSIONER OF INCOME

CWJC/5253/2003

AI Insights

Madhuri Sharma, the petitioner, challenged the protective assessment order dated 3.4.2003 under section 158BC of the Income Tax Act, 1961, claiming it was void ab initio and illegal. The challenge was based on the legality of a search conducted on 19.4.2001 and the issuance of a warrant of authorization by the Union of India, which the petitioner argued was not legally competent to issue. The case also questioned the absence of a warrant for a specific locker search and the lack of 'reasons to believe' necessary for the jurisdiction under section 132(1) of the Act. However, before the court could delve into these substantive issues, the petitioner decided to withdraw the petition.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 732993 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 03-12-2020
• Assessment Year: misc
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: RISHI RAJ SINHA
• Assessee Lawyers: D V PATHY
• Keywords: Illegal search; Jurisdiction; Protective assessment order; Reasons to believe; Void ab initio; Warrant of Authorization
• Section: 158BC; 132(1); 132(3)

Judgement Text

"IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5253 of 2003 ====================================================== Madhuri Sharma wife of Sri Tribhuban Roy resident of Ashokpuri, Khajpura on Bailey Road in the town and district of Patna ... ... Petitioner/s Versus 1. Union of India through Commissioner of Income Tax, Patna 2. Deputy Director of Income Tax (Inv), Alankar Place, 3rd floor, Boring Road, Patna 3. Commissioner of Income Tax, Central Circle, Patna 4. Assistant Commissioner of Income Tax, Central Circle, Patna ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. D.V. Pathy, Advocate For the Respondent/s : Mr. Rishi Raj Sinha, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 21 03-12-2020 Petitioner has prayed for the following relief(s): (i) To quash the protective assessment order dated 3.4.2003 (Ann-6) purportedly passed u/s 158BC of the Income tax Act 1961 (for short the Act) as being void ab initio, wholly illegal and and without the sanction of law and which has been passed in pursuance of the search dated 19.4.2001 which search itself is void ab initio, i1legal and without the authority of law because- (a) the respondent no.1 is not an authority competent in law to issue a warrant of Authorisation (for short W/A) u/s 132(1) and consequently the search dated 18.4.2001 purportedly made u/s 132 (1) of the Act in pursuance of the said Patna High Court CWJC No.5253 of 2003(21) dt.03-12-2020 2/3 W/A dated 17.4.2061 issued by him is also without the sanction of 1aw and is wholly i11egal. b) No W/A to search Locker no.70 was at al1 issued as is evident even from the panchnama itself Ann-2 and further from the fact that nothing was found nor seized. (c) The mandatory pre-conditions for assumption of jurisdiction u/S 132(1) i.e. there is complete absence of “reasons to believe\" as envisaged thereunder, are also not satisfied. (d) Indisputably in course of the search in the residential premises of Tribhuban Ray (husband of the petitioner) on 30.3.2001 itself, the Key of the Locker in Allahabad Bank was found and seized and even an order u/s 132 (3) was passed and stated to have also been served (presumably on the said bank as no such order thereof was at al1 served on the assessee or even the petitioner. Hence there was nothing to search or seize. (e) Section 158BC does not at all authorise a protective assessment. (ii) To declare the search dated 18.4.2001 purportedly made u/s 132 (1) of the Act in pursuance of the W/A dated 17.4.2001 issued by R-1, to be void ab initio, whol1y illegal and without the Sanction of aw for the same reasons as stated above.” Shri D.V. Pathy, learned counsel for the petitioner, seeks permission to withdraw the petition. Patna High Court CWJC No.5253 of 2003(21) dt.03-12-2020 3/3 Permission granted. Petition is disposed in the aforesaid terms. Interlocutory application, if any, shall also stand disposed of. K.C.Jha/- (Sanjay Karol, CJ) ( S. Kumar, J) U "