SUNIL KUMAR JAIN S O SRI SURESH CHANDRA JAIN Vs. INCOME TAX OFFICER THE COMMISSIONER OF INCOME TAX AND THE

JUDGEMENT

(1.) Civil Misc. Writ Petition No. 851 of 1995 has been filed by Sunil Kumar Jain whereas Civil Misc. Writ Petition No. 852 of 1995 has been filed by Suresh Chandra Jain, Hindu Undivided Family seeking a writ, order or direction in the nature of certiorari quashing separate notice dated 31st March, 1995 issued under Section 148 of the Income Tax Act, 1961 (here in after referred to as the Act) by the Income Tax Officer, Ward 3(4), Kanpur- respondent No. 1 for the Assessment Year 1986-87 and other consequential relief's.

(2.) Briefly stated the facts giving rise to the present petition are as follows: According to the petitioner in Civil Misc. Writ Petition No. 851 of 1995 he is carrying on business of Electronic goods on small scale basis under the name and style of Anu Electronics and is being assessed to tax by the Income tax Officer ward 3(4), Kanpur-respondent No. 1 since the Assessment Year 1981-82. The grand father of the petitioner late Darbari Lal was the Karta of the Hindu Undivided Family which owned certained moveable and immoveable properties in Jasrana town, district Mainpuri (now in the district of Firozabad). After the death of Sri Darbari Lal, Suresh Chandra Jain, the father of the present petitioner, became the Karta of the Hindu Undivided Family. Suresh Chandra Jain; the Karta, has filed Writ Petition No. 852 of 1985. It is alleged by the petitioners that on 6th June, 1995 the Income Tax Department conducted a search at the residential and business premises of one Sri Prem Chandra Jain, Mohalla Baniyat, Jasrana, district Mainpuri (now district Ferozabad). During the course of search the Officers of the Income Tax Department forcibly entered the residential premises of Suresh Chandra Jain without there being any warrant under Section 132(1) of the Act. It may be mentioned here that the house of Suresh Chandra Jain is adjacent to the house of Prem Chandra Jain. The search party broke open the locks and entered the premises. Smt. Shyama Devi, the mother of Suresh Chandra Jain had gone to Kanpur for treatment since Suresh Chandra Jain was residing at Kanpur as he was in service there. In the house there was a steel safe belonging to Smt. Shyama Devi which was locked. The officers of the search party with the help of gas cutter cut open the safe and took away the sum of Rs. 2,19,000/- and pawned articlesvalued at Rs. 10,506/- kept therein on the ground that it belonged to Prem Kumar Jain. In the course of search Prem Chandra Jain gave his statement stating therein that the cash and pawned articles found from the safe of Smt. Shyama Devi did not belong to him, it either belong to Smt. Shyama Devi or to her son and he had nothing to do with the same. According to the petitioners there have been a family partition in the year 1937 between their forefathers and of Prem Chandra Jain and thereafter they are residing separately.vide letter dated 12th August, 1985, the petitioners prayed for return of the pawned articles. It may be mentioned here that the petitioners claim that Smt. Shyama Devi had executed a will and this fact had been corroborated by the writer and the witness. However, the Income Tax Officer while passing the order under Section 132(5) of the Act on 1st October, 1985 had held that the cash and pawned articles belonged to Prem Chandra Jain and was his undisclosed income. An objection against the said order had been filed under Section 132(5) of the Act by the petitioner.

(3.) The proceedings under Section 148 has been initiated against prem Chandra Jain under Section 147 of the Act for the Assessment Year 1986-87 and the cash amount of Rs. 2,19,000/and the pawned articlesvalued at Rs. 10,506/- has been assessed as belonging to Prem Chandra Jain. However, in the appeal preferred by Prem Chandra Jain, the Commissioner of Income Tax (Appeals)vide order dated 5th December,1994 had set aside the assessment on the ground that it was barred by limitation against which the Department preferred an appeal before the Tribunal. The Tribunalvide order dated 27th February, 2004 had allowed the appeal filed by the Department and remanded the matter to the Commissioner of Income Tax (Appeals) for deciding the appeal afresh in accordance with law. Thereafter the Income Tax Officer Ward 3(4), Kanpur, respondent No. 1 had issued notice under Section 148 of the Act for the Assessment Year 1986-87 to both the petitioners. In compliance to the notice the petitioners filed their return under protest and had requested that the reason for issuing notice under Section 148 of the Act be communicated to them in writing. The Income Tax Officer Ward 3(4), Kanpur, respondent No. 1 had communicated the common reasons which are as follows: