SHRI DEVENDRA SHARMA S/O SHRI GHANSHYAM SHARMA V. THE PRINCIPAL DIRECTOR OF INCOME TAX

CW/16561/2019

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The case involves Shri Devendra Sharma, the petitioner, who challenged the warrant of authorization and the search proceedings conducted under Section 132 of the Income Tax Act. The petitioner argued that the warrant was issued without proper authority and was blank, thus rendering the search and seizure illegal. Despite these claims, the petitioner had previously participated in the assessment proceedings and appealed the assessment order, which was dismissed. The respondents opposed the writ petition, highlighting the procedural participation of the petitioner and the delay in filing the writ. The court dismissed the petition, emphasizing the finality of the assessment order and the procedural participation of the petitioner.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 672452 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 13-08-2024
• Assessment Year: misc
• Other Referred Cases: Ashok Commercial Enterprise Vs. Assistant Commissioner of Income Taxation: (2023) 9 TMI 335
• Laws Referred To: Section 132 of the Income Tax Act, Section 153 of the Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: SIDDHARTH BAPNA; MEHYUL MITTAL
• Assessee Lawyers: MAHENDRA GARGIEYA; DEVANG GARGIEYA; HEMANG GARGIEYA
• Keywords: Assessment Order; Authorization; Illegal search; Income Tax; Search warrant; Void ab initio; Writ petition
• Section: 153; 132

Judgement Text

"[2024:RJ-JP:34403-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 16561/2019 Shri Devendra Sharma S/o Shri Ghanshyam Sharma, Aged About 33 Years, R/o Flat No. 201, Plot No. 46, Lane No. 06, Dharampark Colony, Ajmer Road, Jaipur. ----Petitioner Versus 1. The Principal Director Of Income Tax, (Investigation), Jaipur. 2. The Deputy Commissioner Of Income Tax, Central Circle- 1, Income Tax Department, Jaipur. ----Respondents For Petitioner(s) : Mr. Mahendra Gargieya Mr. Devang Gargieya Mr. Hemang Gargieya For Respondent(s) : Mr. Siddharth Bapna with Mr. Mehyul Mittal HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order 13/08/2024 1. Petitioner has preferred this writ petition inter alia praying for the following reliefs:- “a) The impugned warrant of authorization may be quashed and set aside, and search proceedings under Section 132 be declared void-ab-initio and illegal. b) The impugned notices issued under Section 153 dated 22.03.2019 for A.Y. 2012-13 to 2017-18, (“Annexure – P/14”) may be quashed and set aside. c) May call the complete records related to the impugned search and seizure conducted, to scrutinize and find out whether the authority has appropriately recorded the reasons to believe to conduct search and seizure, in accordance with the law and judicial guidelines. [2024:RJ-JP:34403-DB] (2 of 3) [CW-16561/2019] d) The entire record relating to the search and seizure action under Section 132 allegedly authorized by the Principal Director of Income Tax (Investigation) i.e. the Respondent No.1 may be summoned. e) Any other appropriate order or direction which the Hon’ble Court may deem fit and proper, in the facts and circumstances of the case, may also kindly be passed or given in favour of the Petitioner-assessee to protect his right and interest.” 2. It is contended by counsel for the petitioner that the validity of search warrant of authorization was without any authority. No reason was recorded before issuing the warrant of authorization and the warrant of authorization was blank. It is also contended that the issuance of warrant of authorization cannot be challenged before the Income Tax Authorities and the only remedy which was available to the petitioner was of filing a writ petition. 3. It is further contended that the writ petition was filed in September, 2019, thereafter, the assessment order was passed in December, 2019. The petitioner was forced to participate in the proceedings and notices were issued to him. Against the assessment order, an appeal was preferred by the petitioner which was also dismissed on 26.04.2024. It is also contended that if the assessment order has been passed and the appeal against which has been dismissed, the petitioner can press the writ petition as warrant of authorization in consonance of which the search took place was void-ab-initio. 4. Mr. Siddharth Bapna appearing for the respondent has opposed the writ petition. It is contended that filing of the writ, the passing of the assessment order and the dismissal of the above have not been disputed. The petitioner participated in the assessment proceedings and thereafter filed appeal before the [2024:RJ-JP:34403-DB] (3 of 3) [CW-16561/2019] Appellate Authority, which was dismissed by the authority. The petitioner herein has now challenged the warrant of authorization and the validity of search. 5. It is also contended that the search took place in August, 2017 and the writ petition has been filed in September, 2019 i.e. after a delay of two years. On this ground alone, the writ petition should be dismissed. Counsel appearing for the respondent has placed reliance on Ashok Commercial Enterprise Vs. Assistant Commissioner of Income Taxation: (2023) 9 TMI 335. 6. We have considered the contentions. 7. It is an admitted position that the search took place in August, 2017 and the writ petition was filed in the year 2019 i.e. after a lapse of two years. Thereafter, the petitioner has participated in the assessment proceedings and has also filed appeal against the assessment order, which was dismissed by order dated 26.04.2024. The warrant of authorization or the validity of search cannot be gone into at this stage when the assessment order has been finalized by the Income Tax Authorities, hence, we do not find any force in the writ petition. The present Civil Writ Petition is accordingly, dismissed. 8. Stay application stands disposed. (PRAVEER BHATNAGAR),J (PANKAJ BHANDARI),J MAHIMA/61 "