MUHAMMED Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) Petitioner has approached this Court challenging Exts.P1 to P4 notices issued under Sec. 148 of the Income-tax Act, 1961 (hereinafter referred to as the '1961 Act') for the assessment years 2020-2021 to 2023-2024. The specific ground raised before this Court is that a reading of Exts.P1 to P4 will indicate that the procedure contemplated by Sec. 148A of the 1961 Act has not been followed before issuing the impugned notices. It is the case of the petitioner that the reference to Sec. 132 A of the 1961 Act in the impugned notices is only to get over the formalities contemplated by Sec. 148A of the 1961 Act, and the facts and circumstances of the case indicate that Sec. 132A of the 1961 Act is not applicable.

(2.) Sri. P. Raghunathan, the learned counsel appearing for the petitioner, would vehemently contend that Sec. 148 A of the 1961 Act contemplates the conduct of an inquiry providing opportunity to the assessee before issue of notice under Sec. 148 A of the 1961 Act. It is submitted that by virtue of the 1st proviso to Sec. 148 A of the 1961 Act, the procedure is dispensed with only in case a search is initiated under Sec. 132 of the 1961 Act or the books of account, other documents or any assets are requisitioned under Sec. 132 A of the 1961 Act in the case of an assessee on or after 1/4/2021. It is submitted that in the facts of the present case, certain amounts of cash were recovered from one Muhammed Salih and one Sabeer Ali. It is submitted that the said cash was seized by the Police, and the same was produced before the Judicial First Class Magistrate Court, Nilambur, in Crime No.100 of 2022, registered by the Police. It is submitted that thereafter, the Income-tax Department filed an application under Sec. 451 Cr.P.C before the Judicial First Class Magistrate Court to release the money to the department. It is submitted that this Court, by Ext.P6 order, has found that the money in question ought to be released to the petitioners and others who had approached this Court. It is submitted that, therefore, it cannot be said that this is a case covered by the provisions of Sec. 132A of the 1961 Act, as the money in question was never requisitioned as contemplated by the provisions of Sec. 132A of the 1961 Act. It is submitted that in such circumstances, any notice under Sec. 148 of the 1961 Act, without following the procedure contemplated by Sec. 148 A of the 1961 Act, would have to be declared illegal and unsustainable in law.

(3.) Sri. Navaneeth N. Nath, the learned Standing Counsel appearing for the Income Tax Department, would submit that the contention taken on behalf of the petitioner is contrary to the facts. It is submitted that on getting information that certain amounts had been seized by the Police from the aforesaid Muhammed Salih and Sabeer Ali, a requisition under Sec. 132A of the 1961 Act had been issued by the Income Tax Department to the Station House Officer, Nilambur Police Station. It is submitted that on being informed that the amounts seized from the aforesaid persons had been produced before the Judicial First Class Magistrate Court, Nilambur, the Income Tax Department filed an application under Sec. 451 Cr.P.C, as going by the judgment of this Court in R. Ravirajan and Others v. State of Kerala; 2023 (4) KLJ 423, the provisions of Sec. 132A of the 1961 Act cannot be applied to requisition something in the custody of a Court. It is submitted that the filing of an application under Sec. 451 Cr.P.C. cannot, therefore, be said to be fatal to the issuance of notices under Sec. 148 of the 1961 Act without following the procedure under Sec. 148A of the 1961 Act, as the provisions of Sec. 132A of the 1961 Act were actually invoked in the facts and circumstances of this case.