N K MOHNOT Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) BY consent of both the parties, the main writ petition itself is taken up for final disposal when the petition for injunction with the vacating injunction petition filed by the Department, came up for hearing The above writ petition has been filed for a writ of mandamus directing the respondent to forbear from proceeding with the charge-sheet issued against the petitioner in his letter No. Conf. 506A(2) of 1991 dated March 24, 1993, whereunder a charge-sheet framed against the petitioner for an alleged misconduct under section 288 of the Income-tax Act, 1961"If any person-(a) who is a legal practitioner or an accountant is found guilty of misconduct in his professional capacity by any authority entitled to institute disciplinary proceedings against him, an order passed by that authority shall have effect in relation to his right to attend before an income-tax authority as it has in relation to his right to practise as a legal practitioner or accountant, as the case may be (b) who is not a legal practitioner or an accountant, is found guilty of misconduct in connection with any income-tax proceedings by the prescribed authority, the prescribed authority may direct that he shall thenceforth be disqualified to represent an assessee under sub-section (1)." Learned counsel also invited my attention to rule 60 of the Income-tax Rules, 1962, which is as follows"Where the prescribed authority on the basis of information in its possession is of the opinion that prima facie an authorised income-tax practitioner is guilty of misconduct in connection with any income-tax proceedings, it shall frame definite charges against the income-tax practitioner and shall communicate them in writing to him together with a statement of the allegations in support of the charges.

(2.) THE authorised income-tax practitioner shall be required to submit within such time as may be specified by the prescribed authority a written statement of his defence and also to state whether he desires to be heard in person." On the basis of the above provisions, the submission of learned counsel for the petitioner is that before arriving at a conclusion that a prima facie case of being guilty of misconduct exists, the question of framing charges or proceeding with an enquiry would not arise and consequently even before arriving at a conclusion about the existence or otherwise of a prima facie case, there is a duty on the part of the respondent to give an opportunity to the petitioner to show cause against the allegations. On a careful reading of the section as well as the rules referred to supra, I am of the view that the submission on behalf of the petitioner is not well merited.

(3.) THE writ petition, therefore, fails and shall stand dismissed. No costs.THE petitioner shall have four weeks' time to make his representation to the charge memo. It is needless to point out that he will have all his rights and privileges as are permissible under the relevant rules, fully preserved including the right to raise any objections whatsoever except the one which has been rejected in this order.