SRI. SUNIL KUMAR SHARMA V. THE PRINCIPAL DIRECTOR OF INCOME TAX

WA/3446/2019

AI Insights

The case involves multiple writ appeals filed against the orders dated 29th August 2019 and 30th August 2019 passed by the learned Single Judge. The appellants, who are individuals subjected to investigation by the Income Tax Department and the Enforcement Directorate, challenged the orders that adversely affected them. The main legal contention revolved around the maintainability of the writ appeals under Section 4 of the Karnataka High Courts Act, 1961, given the concurrent invocation of constitutional and procedural powers by the Single Judge. The court, referencing its earlier decisions in related writ appeals, concluded that the appeals were not maintainable under the specified section due to the dual invocation of Articles 226 and 227 of the Constitution and Section 482 of the Cr.P.C.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 754992 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 17-09-2019
• Assessment Year: misc
• Laws Referred To: Karnataka High Courts Act, 1961, Constitution of India, Code of Criminal Procedure, 1973
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JEEVAN NEERALGI; M B NARGUND; UNNIKRISHNAN
• Assessee Lawyers: B V ACHARYA; SHASHI KIRAN SHETTY; A SHANKAR; M V SESHACHALA; D N NANJUNDA REDDY
• Keywords: Enforcement Directorate; Income Tax; Maintainability; Writ Appeal; Single Judge Order
• Section: 4; 226; 482; 227

Judgement Text

" - 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO.3446 OF 2019 (GM-RES) C/W WRIT APPEAL NO.3447 OF 2019 (GM-RES), WRIT APPEAL NO.3448 OF 2019 (GM-RES), WRIT APPEAL NO.3609 OF 2019 (GM-RES) AND WRIT APPEAL NOS.3634-3637 OF 2019 (GM-RES) IN WA.No.3446/2019: BETWEEN: SRI SUNIL KUMAR SHARMA S/O.SRI D.P.SHARMA AGED ABOUT 43 YEARS NO.328, SANGEETHA BHAVAN TSP ROAD, KALASIPALYAM BENGALURU-560 002 ... APPELLANT (BY SHRI B.V.ACHARYA, SENIOR COUNSEL FOR SHRI PAVAN G.N., AND SHRI R.VYBHAV, ADVOCATES ) AND: 1. THE PRINCIPAL DIRECTOR OF INCOME TAX (INVESTIGATION) 3RD FLOOR, C.R.BUILDING (ANNEX) QUEENS ROAD, BENGALURU-560 001 2. INCOME TAX DEPARTMENT BY ITS DEPUTY DIRECTOR OF INCOME TAX (INV.), UNIT-3(1) C.R.BUILDING (ANNEX) QUEENS ROAD BENGALURU-560 001 - 2 - 3. ASSISTANT DIRECTOR DIRECTORATE OF ENFORCEMENT 6TH FLOOR, LOK NAYAK BHAVAN KHAN MARKET NEW DELHI-110 003 4. JOINT DIRECTOR ENFORCEMENT DIRECTORATE BENGALURU ZONAL OFFICE 3RD FLOOR, B BLOCK BMTC BUILDING SHANTHINAGAR BENGALURU-560 027 ... RESPONDENTS (BY SHRI JEEVAN J.NEERALGI, ADVOCATE FOR R1 & R2; SHRI M.B.NARGUND, SENIOR COUNSEL FOR SHRI UNNIKRISHNAN M., CGC FOR R3 & R4) --- THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURTS ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 29.08.2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP.NO.5824/2019 TO THE EXTENT AGAINST THE APPELLANT AND CONSEQUENTLY GRANT THE APPELLANT THE RELIEF PRAYED FOR IN THE WRIT PETITION AND ETC. IN WA.No.3447/2019: BETWEEN: SRI ANJANEYA HANUMANTHAIAH S/O.HANUMANTHAIAH AGED ABOUT 44 YEARS R/AT GOK QUARTERS NO.1, R.K.PURAM SECTOR 6 PHASE-2, NEW DELHI-110 022 ... APPELLANT (BY SHRI SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR SHRI KIRAN J., ADVOCATE) AND: 1. THE PRINCIPAL DIRECTOR OF INCOME TAX (INV.) 3RD FLOOR, C.R.BUILDING (ANNEX) QUEENS ROAD BENGALURU-560 001 - 3 - 2. THE JOINT DIRECTOR OF INCOME-TAX (OSD) UNIT 1(1) OFFICE OF THE PRINCIPAL DIRECTOR OF INCOME-TAX (INVESTIGATION), 3RD FLOOR C.R.BUILDING ANNEX QUEENS ROAD BENGALURU-560 001 3. CENTRAL BOARD OF DIRECT TAXES THROUGH THE SECRETARY MINISTRY OF FINANCE NORTH BLOCK NEW DELHI-110 001 4. DIRECTORATE OF ENFORCEMENT THROUGH THE ASSISTANT DIRECTOR MINISTRY OF FINANCE DEPARTMENT OF REVENUE 6TH FLOOR, LOK NAYAK BHAVAN NEW DELHI-110 001 ... RESPONDENTS (BY SHRI JEEVAN J.NEERALGI, ADVOCATE FOR R1 & R2; SHRI UNNIKRISHNAN M., CGC FOR R3 & R4) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURTS ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 29.08.2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP.NO.5408/2019 AND ETC. IN WA.No.3448/2019: BETWEEN: SRI SACHIN NARAYAN S/O.LATE H.G.NARAYAN AGED ABOUT 40 YEARS R/AT NO.902, 9TH ‘A’ CROSS 6TH MAIN, 2ND STAGE WEST OF CHORD ROAD BENGALURU-560 086 ... APPELLANT (BY SHRI A.SHANKAR, SENIOR COUNSEL FOR SHRI SANDEEP PATIL AND SMT. SWAMINI G.MOHANAMBAL, ADVOCATES) - 4 - AND: 1. THE INCOME TAX DEPARTMENT BY ITS DEPUTY DIRECTOR OF INCOME TAX (INV.), UNIT-3(1) C.R.BUILDING (ANNEX) QUEENS ROAD BENGALURU-560 001 2. THE ENFORCEMENT DIRECTORATE MINISTRY OF FINANCE GOVERNMENT OF INDIA 6TH FLOOR, LOK NAYAK BHAWAN KHAN MARKET NEW DELHI-110 003 REPRESENTED BY SPECIAL PUBLIC PROSECUTOR ... RESPONDENTS (BY SHRI JEEVAN J.NEERALGI, ADVOCATE FOR R1; SHRI UNNIKRISHNAN M., CGC FOR R2) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURTS ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 29.08.2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP.NO.5299/2019 AND ETC. IN WA.No.3609/2019: BETWEEN: SRI D.K.SHIVAKUMAR S/O.D.K.KEMPEGOWDA AGED ABOUT 57 YEARS R/AT NO.252, 18TH CROSS SADASHIVANAGAR BENGALURU-560 080 ... APPELLANT (BY SHRI M.V.SESHACHALA, SENIOR COUNSEL FOR SHRI ARAVIND V.CHAVAN, ADVOCATE) AND: 1. THE PRINCIPAL DIRECTOR OF INCOME TAX (INVESTIGATION) 3RD FLOOR, C.R.BUILDING (ANNEX) QUEENS ROAD BENGALURU-560 001 - 5 - 2. INCOME TAX DEPARTMENT BY ITS DEPUTY DIRECTOR OF INCOME TAX (INV.), UNIT-3(1) C.R.BUILDING (ANNEX) QUEENS ROAD BENGALURU-560 001 3. ASSISTANT DIRECTOR DIRECTORATE OF ENFORCEMENT 6TH FLOOR, LOK NAYAK BHAVAN KHAN MARKET NEW DELHI-110 003 4. JOINT DIRECTOR ENFORCEMENT DIRECTORATE BENGALURU ZONAL OFFICE 3RD FLOOR, B BLOCK BMTC BUILDING SHANTHINAGAR BENGALURU-560 027 ... RESPONDENTS (BY SHRI JEEVAN J.NEERALGI, ADVOCATE FOR R1 & R2; SHRI S.S.NAGANANDA, SENIOR COUNSEL FOR SHRI UNNIKRISHNAN M., CGC FOR R3 & R4) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURTS ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 29.08.2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP.NO.6210/2019 AND ETC. IN WA.Nos.3634-3637/2019: BETWEEN: MR.RAJENDRA N. S/O.KANDASWAMY AGED ABOUT 73 YEARS PERMANENTLY R/AT NO.8B DDA MG FLAT, SARAI JULANA OPP. TO ESCORT HEART RESEARCH INSTITUTE SUKHDEV VIHAR NEW DELHI-110 001 ... APPELLANT (BY SHRI D.N.NANJUNDA REDDY, SENIOR COUNSEL FOR SHRI M.S.SHYAM SUNDAR AND SMT.S.S.VANDANA, ADVOCATES) - 6 - AND: 1. THE INCOME TAX DEPARTMENT BANGALORE OFFICE CENTRAL REVENUE BUILDING BENGALURU-560 001 BY THE COMMISSIONER OF INCOME TAX OR AUTHORIZED OFFICER 2. THE PRINCIPAL DIRECTOR OF INCOME TAX (INVESTIGATION) INCOME TAX DEPARTMENT CENTRAL REVENUE BUILDING BENGALURU-560 001 3. THE DEPUTY DIRECTOR OF INCOME TAX (INV.) INCOME TAX DEPARTMENT, UNIT-3(1) CENTRAL REVENUE BUILDING BENGALURU-560 001 4. THE DIRECTORATE OF ENFORCEMENT 6TH FLOOR, LOK NAYAK BHAVAN KHAN MARKET NEW DELHI-110 003 BY ASSISTANT DIRECTOR 5. THE DIRECTORATE OF ENFORCEMENT 3RD FLOOR, ‘B’ BLOCK BMTC SHANTHINAGAR TTMC SHANTHINAGAR BANGALORE-560 027 REPRESENTED BY JOINT DIRECTOR BANGALORE ZONE ... RESPONDENTS (BY SHRI JEEVAN J.NEERALGI, ADVOCATE FOR R1, R2 & R3; SHRI S.S.NAGANANDA, SENIOR COUNSEL FOR SHRI UNNIKRISHNAN M., CGC FOR R4 & R5) THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURTS ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 29.08.2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP.NOS.5420-5423/2019 AND ETC. - 7 - THESE APPEALS COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING: JUDGMENT These appeals take exceptions to the judgment and order dated 29th August 2019 and in some cases, also to the order dated 30th August 2019 passed by the learned Single Judge. By a separate order passed today in WA.Nos.3611, 3612 and 3613 of 2019, we have held that while passing the judgment and order dated 29th August 2019, the learned Single Judge has exercised the power under Articles 226 and 227 of the Constitution of India as well as under Section 482 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’). As power has been also exercised under Section 482 of Cr.P.C., these writ appeals under Section 4 of the Karnataka High Courts Act, 1961 are not maintainable and therefore, will have to be dismissed only on that ground. 2. The appellant in WA.No.3609/2019 has been already taken into custody. However, as regards the other appeals, when we made a query to the learned counsel representing the Enforcement Directorate whether the statement recorded in the order dated 5th September 2019 can be continued, he states that he has no instructions to continue the statement. - 8 - 3. These appeals taking exception to the judgment and order dated 29th August 2019 are being dismissed by us only on the ground that the same are not maintainable and not on merits. While dealing with the appeals in Writ Appeal Nos.3611, 3612 and 3613 of 2019, we have also made an observation that the prayer for continuation of interim relief which was operative in the writ petitions for few months could not have been denied on the basis of Section 362 of Cr.P.C. 4. In the writ petitions, the interim order remained operative till 29th August 2019 for more than six months. Therefore, with a view to enable the appellants to adopt an appropriate remedy for challenging the orders, interim order will have to be continued for a reasonable time as it will take some time to type the orders in Writ Appeal Nos.3611, 3612 and 3613 of 2019 and to make copies of the orders available. Accordingly, we direct that the appellants in these appeals except in the appeal in WA.No.3609/2019 shall not be arrested by the Enforcement Directorate in relation to the offence mentioned in prayer clause (e) for a period of four weeks from today subject to condition that if any summons is issued to the appellants for the purpose of investigation, they shall appear - 9 - before the authorities pursuant to the summons and cooperate with the authorities. The pending interlocutory applications do not survive for consideration and are disposed of. Sd/- CHIEF JUSTICE Sd/- JUDGE LB "