V.P.RASHEED V. UNION OF INDIA

WA/1732/2013

AI Insights

The case involves V.P. Rasheed, the proprietor of E Oriental Timbers, who appealed against the judgment of the learned Single Judge dismissing his writ petition. The writ petition sought the release of a computer hard disk and other articles seized by the Income Tax Department during a search operation on October 8, 2013. The petitioner argued that since copies of the documents had already been made, there was no need to retain the hard disk. The Income Tax Department contended that the hard disk was necessary for ongoing investigations. The court found that the petitioner had been offered copies of the seized materials and had not availed himself of the opportunity to collect them, thus upholding the decision of the learned Single Judge.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 737092 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 27-11-2013
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P K R MENON; JOSE JOSEPH
• Assessee Lawyers: SHAJIAN GEORGE; M T AJITH; S REKHA; SAJITHA GEORGE
• Keywords: Computer; Documents; Hard disk; Income Tax; Seizure; Writ Appeal
• Section: 132; 2(12A)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935 WA.No. 1732 of 2013 ---------------------------- (AGAINST THE JUDGMENT DATED 07.11.2013 IN WP(C)No. 25735/2013 OF THIS HON'BLE COURT ) APPELLANT/PETITIONER : ------------------------------------ V.P.RASHEED, PROPRIETOR, E ORIENTAL TIMBERS, N.H BYE PASS, EDAPPALLY, COCHIN - 24. BY ADVS.SRI.SHAIJAN C.GEORGE SRI.M.T.AJITH SMT.S.REKHA SMT.SAJITHA GEORGE RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. UNION OF INDIA, REPD. BY SECRETARY, MINISTRY OF FINANCE, SECRETARIAT BUILDING, NEW DELHI - 110 001. 2. JOINT DIRECTOR (INVESTIGATION), INCOME TAX DEPARTMENT, ARYA BHANGI PINACLE, SA ROAD, COCHIN - 682 020. 3. APPU JOSEPH JOSE, DEPUTY DIRECTOR (INVESTIGATION), INCOME TAX DEPARTMENT, COCHIN - 682 031. 4. KRISHNANKANTH K., INCOME TAX OFFICE(TDS), KOZHIKODE - 670 101. BY SRI.P.K.R.MENON,SR.COUNSEL, G.O.I(TAXES) SRI.JOSE JOSEPH, S.C. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sv MANJULA CHELLUR C.J. & A.M.SHAFFIQUE, J. = = = = = = = = = = = = = = = = Writ Appeal No.1732 of 2013 = = = = = = = = = = = = = = = = = = = = = Dated this the 27 th day of November, 2013 JUDGMENT Shaffique, J Appellant is the writ petitioner. Writ Petition is filed seeking a direction to the Income Tax authorities to release the computer and hard disk and issue copies along with other articles seized from the writ petitioner. 2. It is not in dispute that the documents including the computers and hard disk and other materials were seized by virtue of search conducted by the Income Tax Authorities on 08.10.2013. According to the petitioner, already copies of the documents had been generated by the Income Tax Authorities and they require the hard disk which contains software , their books of account etc. According to him, since there is no requirement for the Income Tax authorities to detain the said hard disk, a direction as sought for should be issued. Writ Appeal No.1732 of 2013 2 3. Counter affidavit is filed by the respondent authority, inter alia, indicating that opportunity was granted to the petitioner to collect copies of the documents seized by bringing suitable hardware to carry the image. Ext.R2(a) is the said letter which reads as under:- “In connection with the unsealing of the seized computers, (seized from your business premises under Section 132 of the Income Tax Act,1961 on 08.10.2013) you were offered an opportunity to be present vide a phone call made on 15.10.2013. This opportunity was not availed by you. The seized computers were opened in the presence of independent witnesses. Images of the seized HDDs and USB Flash Drives have been generated . You may receive a copy of the same from this office on 28.10.2013 between 10.00 am and 12.00 noon. You are requested to bring suitable hardware to carry the image.” 4. Having regard to the aforesaid factual situation, the learned Single Judge observed that since the petitioner was given a right to receive the documents namely copies of the documents seized there is no reason to issue the direction as sought for and accordingly the writ petition was dismissed. 5. Having regard to the allegations made against respondent Nos.3 and 4, the learned Single judge observed that Writ Appeal No.1732 of 2013 3 since there is dispute regarding the allegations so made the same cannot be adjudicated by this court. 6. Learned counsel appearing for the appellant however relying on Section 2(12A) of the Income Tax Act argued that the Income Tax department had already taken copies of the contents of the hard disk, there is no reason to detain the same. 7. On the other hand, the learned Standing Counsel appearing for the respondent would submit that the appellant was involved in large-scale fraudulent activities and directions issued by way of prohibitory orders were not complied with. It is purely within the discretion of the Income Tax authorities to give the documents/hard disk and the petitioner is only entitled to receive the copies as stated in Ext.R2(a). 8. Having gone through the findings of the learned Single Judge, we are of the opinion that the learned Single Judge did not exercise the discretion to direct providing original hard disk to the petitioner since the Income Tax department had clearly indicated that the hard disk is required for their purpose. That apart, when a discretion is exercised by the Income Tax Department by issuing Ext.R2(a), this Court cannot direct that Writ Appeal No.1732 of 2013 4 the original hard disk should be issued to the petitioner. 9. On a perusal of the relevant grounds of appeal, especially Ground B highlighted by the counsel for the appellant, we do not think that a specific ground is made for interfering with the judgment of the learned Single Judge. Section 2(12A) is only a definition of books of account. That by itself will not give any right to the petitioner to get the books of account returned. The petitioner will be entitled to collect the original documents only when it is offered by the Income Tax Department. No other right is available to the petitioner right now as he is already permitted to collect copies of the contents of the hard disk . In that view of the matter, we find no good ground to interfere with the judgment of the learned Single Judge. Accordingly, the writ appeal is dismissed. MANJULA CHELLUR, CHIEF JUSTICE A.M.SHAFFIQUE, JUDGE. sj "