K NAVANEETHAN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) IN all these three cases, identical notices were issued under s. 288 (5) of the IT Act read with r. 59 of the IT Rules, 1962, to the following effect : "whereas a search was conducted in your premises under s. 132 of the IT Act, 1961, on 28/29-11-1984, in consequence of information in the possession of the Director of INspection (INvestigation), madras :" * Whereas in the course of search operations, you, in your capacity as INcome-tax practitioner, were found to be in possession of the following confidential documents, some original and some copies, meant solely for the internal use of the INcome-tax Department : xx xx xx xx xx xx "whereas in the course of search operation, you in your capacity as INcome-tax practitioner, were found to be in possession of the following documents, which prima facie show that you have been giving advice to your clients to enable them to avoid payment of legitimate taxes : xx xx xx xx xx xx" * Whereas in the course of search operations, you in your capacity as INcome-tax practitioner, were found to be in possession of the following documents which prima facie shows that you have been writing letters to the Chairman, CBDT in the name of third-parties with ulterior motives : xx xx xx xx xx xx "whereas I am prima facie of the opinion that your possession of ht above confidential income-tax documents and other documents is grievously prejudicial to the interests of the Revenue and your conduct is unbecoming of an INcome-tax practitioner and you are guilty of misconduct in connection with INcome-tax proceedings. " * You are hereby, therefore, required to submit within twenty days of the receipt of this notice, your written reply to the above charges supported by documentary evidence. You may also state whether you wish to be heard in person. . . . . . . . " (relevant portions alone extracted)

(2.) THE petitioners have obviously rushed up to this Court on the threshold of the matter on the simple ground that the Income-tax department has no jurisdiction to issue the notices, because, under s. 288 of the IT Act, 1961, he must be an authorised representative in respect of that particular matter in which he is given the authorisation in writing. But, in case where he has not been authorised and the file, were handed over in connection with some other matter, even if they contained the documents which have been listed in the notices, certainly the petitioners cannot be proceeded against. This is also the implication of r. 60. As against this, Mrs. Nalini chidambaram, ld. Standing for the department, would contend that, earlier, the self-same petitioners moved this Court by way of Writ Petition Nos. 8725, 8978 and 8979 of 1985, and Shanmukham, J. , quashed the same and at that time, the petitioners did not raise the points of jurisdiction. THErefore, this would constitute res judicata.