* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 823/2013
Reserved on: 24th October, 2013
% Date of Decision: 20th December, 2013
M/s MDLR RESORTS PVT. LTD. ....Petitioner
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 693/2013
M/S ALANKAR SAPHIRE DEVELOPERS PVT. LTD. ... PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 995/2013
M/S NAGESHWAR REALTORS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1010/2013
MR. JWALA PRASAD AGGARWAL ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
W.P.(C) Nos.823/2013 & conn. matters Page 1 of 39
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1229/2013
GOPAL KANDA & SONS HUF . ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 697/2013
M/S WITNESS CONSTRUCTION PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 964/2013
M/S MDLR ESTATES PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
W.P.(C) Nos.823/2013 & conn. matters Page 2 of 39
WRIT PETITION (CIVIL) No. 971/2013
LKG BUILDERS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 996/2013
BELIEVE CONSTRUCTION PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1002/2013
M/S PEGASUS SOFTECH PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1195/2013
BHUDEVA COMMODITIES LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
W.P.(C) Nos.823/2013 & conn. matters Page 3 of 39
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1205/2013
NAGESHWAR BUILDER PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 963/2013
BHUDEVA ESTATES PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 966/2013
AKDANT BUILDCON PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 968/2013
GPBIND KANDA AND SONS HUF ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
W.P.(C) Nos.823/2013 & conn. matters Page 4 of 39
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 978/2013
M/S GEE GEE BUILDTEK PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1005/2013
SHIV GANESH BUILDCON PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1040/2013
VEENA GUPTA ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
W.P.(C) Nos.823/2013 & conn. matters Page 5 of 39
WRIT PETITION (CIVIL) No. 976/2013
GOBIND KUMAR ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 997/2013
RAJEEV KUMAR PRASHAR ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1001/2013
M/S BELIEVE DEVELOPERS & PROMOTERS PVT.LTD ..PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1006/2013
M/S OMSHIV BUILDTECH PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
W.P.(C) Nos.823/2013 & conn. matters Page 6 of 39
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1009/2013
M/S KAIRAV NONWOVEN PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1199/2013
PRADEEP AGARWAL ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1201/2013
M/S WITNESS BUILDERS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 962/2013
GAURAV GUABA ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
W.P.(C) Nos.823/2013 & conn. matters Page 7 of 39
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 970/2013
M/S MDLR CARGO PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 975/2013
SHIV NANDAN BUILDCON PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1003/2013
M/S MDLR HOTELS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
W.P.(C) Nos.823/2013 & conn. matters Page 8 of 39
WRIT PETITION (CIVIL) No. 1198/2013
SARASWATI GOYAL ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 984/2013
M/S LAKSHYA CONSULTANTS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 985/2013
M/S KARTIKEYA BUILDCON PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 994/2013
M/S W AND W MARBLES PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
W.P.(C) Nos.823/2013 & conn. matters Page 9 of 39
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
WRIT PETITION (CIVIL) No. 998/2013
M/S MDLR INFRASTRUCTURE PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1206/2013
M/S MM BUILDCON PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1207/2013
KANDA AGRICULTURE PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 977/2013
M/S MDLR TOUR & TRAVELS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
W.P.(C) Nos.823/2013 & conn. matters Page 10 of 39
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1072/2013
M/S MDLR BUILDER PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1200/2013
GOPAL GUABA ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1202/2013
WINMAN ESTATES PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
W.P.(C) Nos.823/2013 & conn. matters Page 11 of 39
WRIT PETITION (CIVIL) No. 1212/2013
GOPAL KUMAR GOYAL ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 960/2013
WORLDWIDE REALTORS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 969/2013
ASHUTOSH VILLAS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1118/2013
M/S SHIVGORI BUILDERS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
W.P.(C) Nos.823/2013 & conn. matters Page 12 of 39
COMISSIONER OF INCOME TAX & ORS ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1121/2013
VIRENDER KUMAR GUPTA ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1126/2013
M/S SHINESTAR BUILDCON PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1131/2013
ELITE BUILDWELL PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
W.P.(C) Nos.823/2013 & conn. matters Page 13 of 39
WRIT PETITION (CIVIL) No. 1127/2013
MDLR DEVELOPERS & PROMOTERS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1128/2013
SARITA GOYAL ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1123/2013
M/S ASHUTOSH DEVELOPERS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1129/2013
MRS. KANTA RANI GUABA ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
W.P.(C) Nos.823/2013 & conn. matters Page 14 of 39
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1133/2013
M/S SHIV GANESH BUILDERS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1134/2013
KING BUILDCON PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ORS. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1122/2013
MDLR AIRLINES PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1124/2013
WITNESS DEVELOPERS & PROMOTERS PVT. LTD. ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
W.P.(C) Nos.823/2013 & conn. matters Page 15 of 39
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
WRIT PETITION (CIVIL) No. 1352/2013
RAJEEV VERMA . ...PETITIONER
Through Mr. Parag P. Tripathi, Sr. Advocate with
Mr. Salil Kapoor and Mr. Vikas Jain, Advocates.
Versus
COMISSIONER OF INCOME TAX & ANR. ...RESPONDENTS
Through Mr. Rajeeve Mehra, ASG with Mr. N.P. Sahni,
Sr. Standing Counsel, Mr. Ruchesh Sinha,
Jr. Standing Counsel, Mr. Ashish Virmani, Advocate
and Mr. Ashok Gautam, Assessing Officer.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
SANJIV KHANNA, J.
This common judgment will dispose of the aforesaid writ
petitions. The petitioners for the sake of convenience can be and have
been in the judgment at places described as MDLR Group. The
factual matrices in these cases, which can be divided into two sets, are
elucidated in brief to avoid prolixity and repetition.
2. The respondents claim that search and seizure operation against
the petitioners were initiated and conducted under Section 132 of the
Income Tax Act, 1961 (Act, for short) on 31st January, 2008. The
petitioners have accepted and not disputed the search and seizure
operations in the writ petitions but the contention raised is that against
22 petitioners detailed below, no panchnamas were drawn/issued and
W.P.(C) Nos.823/2013 & conn. matters Page 16 of 39
thus proceedings under section 153A of the Act are void and bad for
want of jurisdiction. It is also submitted in the rejoinder affidavit to
the counter affidavit that these petitioners were not subjected to
search and their names have been subsequently interpolated and
mentioned in the warrants of search. Details of these 22 petitioners
along with their writ petition numbers is as under:-
S.No. Name of the Assessee Writ Assessment years
Petition
No.
1. M/s Alankar Saphire Developers 693/2013 2002-03 to 2008-09
P. Ltd.
2. M/s Ashutosh Developes Pvt. Ltd. 1123/2013 2004-05 to 2008-09
3. M/s Gopal Kanda & Sons HUF 1229/2013 2002-03 to 2008-09
4. M/s Kartikeya Buildcon Pvt. Ltd. 985/2013 2006-07 to 2008-09
5. M/s Kairav Nonwoven Pvt. Ltd. 1009/13 2006-07 to 2008-09
6. M/s King Buildcon P. Ltd. 1134/2013 2005-06 to 2008-09
7. M/s Kanda Agriculture P. Ltd. 1207/2013 2007-08 to 2008-09
8. M/s Lakshya Consultant P. Ltd. 989/2013 2003-04 to 2008-09
9. M/s LKG Builders Pvt. Ltd. 971/2013 2003-04 to 2008-09
10. M/s MDLR Estate P. Ltd. 964/2013 2006-07 to 2008-09
11. M/s MDLR Cargo P. Ltd. 970/2013 2007-08 to 2008-09
12. M/s MDLR Infrastructure P. Ltd. 998/2013 2006-07
13. M/s MDLR Hotels Pvt. Ltd. 1003/2013 2006-07 to 2008-09
14. M/s MDLR Developers & 1127/2013 2005-06 to 2008-09
Promoters P. Ltd.
15. M/s MDLR Tour & Travel Pvt. 977/2013 2008-09
Ltd.
16. Rajeev Verma 1352/2013 2002-03 to 2008-09
17. M/s Shivgori Builders Pvt. Ltd. 1118/13 2007-08 to 2008-09
18. M/s Vinman Estates P. Ltd. 1202/2013 2205-06 to 2008-09
19. M/s witness Construction Pvt. Ltd. 697/2013 2005-06 to 2008-09
20. M/s Witness Developers & 1124/2013 2005-06 to 2008-09
Promoters Pvt. Ltd.
21. M/s Witness Builders P.Ltd 1201/2013 2005-06 to 2008-09
22. Worldwide Realtors P. Ltd. 960/2013 2002-03 to 2008-09
3. The facts of the lead case i.e. Writ Petition (Civil) No.
823/2013 filed by MDLR Resorts Pvt. Ltd., are as follows:-
W.P.(C) Nos.823/2013 & conn. matters Page 17 of 39
a) On 31st January, 2008, search and seizure operation under
Section 132 of the Act was carried out in the case of the
petitioner, a member of the MDLR group.
b) On 19th June, 2009, notice under Section 153A of the Act was
issued to the petitioner to file returns for the assessment years
2006-07 to 2007-08. Notice under Section 143(2) was issued
for the assessment year 2008-09.
c) On 29th December, 2009, the Assessing Officer passed
assessment orders in respect of three assessment years making
various additions. Income for the assessment years 2006-07,
2007-08 and 2008-09 was assessed at Rs.79,16,326/-,
Rs.2,81,67,482/- and Rs.23,97,18,215/-, respectively.
d) The petitioner did not file appeals but revision petitions under
Section 264 of the Act were filed. Revision petitions were
decided by order dated 16th March, 2012 with an order of
remand, for fresh assessments.
e) Subsequent to the order of the Commissioner under Section
264 of the Act, dated 16th March, 2012, vide assessment orders
dated 8th March, 2013, the income of the MDLR Resorts Pvt.
Ltd. has been assessed for the assessment years 2006-07, 2007-
08 and 2008-09 at Rs.1,66,326/-, Rs.3,59,03,210/- and
23,97,18,215/-, respectively.
f) This indicates that income for MDLR Resorts Pvt. Ltd. for the
assessment year 2008-09 has been assessed at the same figure
as had been assessed in the first order. Income for the
assessment years 2006-07 stands reduced by Rs.77,50,000/-,
W.P.(C) Nos.823/2013 & conn. matters Page 18 of 39
but income of assessment Year 2007-08 stands increased by a
figure of Rs.77,35,728/-.
g) For the sake of record, we mention that addition of Rs.77.50
lakhs made in the first/original order for the assessment year
2006-07 has been treated as income for assessment year 2007-
08. In the assessment year 2007-08, addition of Rs.2.45 crores
on account of payment to ABG Management was enhanced to
Rs.3.25 crores in the second round.
Contentions and Submissions
4. Following are the contentions raised by the petitioners, MDLR
Group and their reply/response by Revenue/respondents:-
i. Assessment proceedings under section 153A of the Act are
invalid as no panchnamas were drawn in the names of 22
petitioners. Another aspect of the said contention relating to
validity of proceedings under Section 153A of the Act has been
also raised.
ii. Second contention which has neither been raised in the writ
petition nor in the amended writ petition but in the rejoinder
affidavit to the amended writ petition, is to the effect that
probably and possibly no warrant for search under Section 132
of the Act was issued against these 22 petitioners and,
therefore, their names do not appear in the panchnamas.
ia/iia. The respondents have contested the first and second
contentions of the petitioner on three grounds. There was an
error or mistake in the panchnamas as a consequence thereof,
W.P.(C) Nos.823/2013 & conn. matters Page 19 of 39
names of 22 petitioners did not feature in the panchnamas,
though the said petitioners were subjected to search and
seizure. Error or mistake cannot vitiate proceedings under
section 153A of the Act. Secondly, there was obstruction and
the officers were prevented from carrying out search at MDLR
House, SCO 1, 2 and 3, Sector 15, Gurgaon and 436/16 Civil
Lines, Gurgaon and due to resultant confusion, names of the
said 22 petitioners were not mentioned in the panchnamas.
Lastly, the proceedings under Section 153A are valid and do
not falter on the ground of lack of jurisdiction as the search was
initiated and duly conducted against the aforesaid 22
petitioners. In re, the contention regarding warrant of search,
the respondents rely upon the original records including
relevant search warrants namely D.N. 0194, D.N. 0195 and
D.N. 0191 to affirm that search and seizure operation was also
directed against the said 22 petitioners.
iii. The third contention raised by the petitioners pertains to the
scope of the order of remand passed by the Commissioner of
Income Tax on the revision petitions under Section 264 of the
Act decided by orders dated 16th March, 2012. It is submitted
that the assessing Officer while passing the fresh assessment
orders has gone beyond and has in some cases made additions
in excess of the additions made in the original assessments
which violates the mandate of Section 264 of the Act.
iiia. Per contra, the contention of the respondents is that the
Commissioner in his order under Section 264 of the Act, had
set aside the original assessment under Section 153A and had
W.P.(C) Nos.823/2013 & conn. matters Page 20 of 39
directed the Assessing Officer to pass a fresh order after
hearing and considering the evidence and material placed on
record by the petitioners. The Commissioner had observed that
the petitioners were prevented and could not in the first round
produce relevant documents and material. Various issues were
not properly investigated and in light of the various
contentions, legal, technical, factual and in the interest of
natural justice and fair play, the matter was restored to the
Assessing Officer for fresh assessment. Assessing Officer`s
jurisdiction at the time of fresh assessment was as extensive
and broad as at the time of the original assessment. It was not a
case of limited remand.
iv. The last and the fourth contention of the petitioners is that the
Assessing Officer had invoked Section 144A and had sought
the opinion of the Joint Commissioner before passing the
assessment order. It is submitted that the Joint Commissioner
had expressed an opinion, which was prejudicial to the
petitioners, without opportunity of being heard. This violates
the mandate of Section 144A of the Act.
iva. In response, the respondents submit that explanation to
Section 144A was applicable and no prejudicial directions were
issued to the assessee. Petitioners had also invoked said
provision. No prejudice has been caused. Lastly, the
respondents submit that the fresh assessment orders under
Section 153A have been made subject matter of appeals on all
grounds or issues, and therefore, contentions on merits i.e.
W.P.(C) Nos.823/2013 & conn. matters Page 21 of 39
contentions Nos. (iii) and (iv) cannot be raised and should not
be permitted to be raised in these writ petitions.
5. We would like to first deal with the second contention stated
above and raised only in the rejoinder to the amended writ petition
and that too vaguely. This contention has neither been raised in the
writ petition which was filed in January, 2013 nor in the amended
writ petition which was filed pursuant to the order dated 22 nd May,
2013. Even in the rejoinder affidavit, the petitioners have stated that
copy of some search warrants were shown to them for the first time
on 21st March, 2013, though a request was made vide letter dated 13th
March, 2010. The contention was based primarily on apprehension
and suspicion. This was accepted during arguments but with the
assertion that the petitioners do not have access to files of the
respondents and are handicapped from making affirmative statement
in the absence of examination/scrutiny of records.
6. Search file was produced before us. MDLR Group as a whole
was subjected to search following a detailed note prepared for
approval and issue of warrant of search. The note was available on
the confidential files produced before us. Names of companies,
concerns etc. belonging to MDLR group were mentioned and
recorded in the file/proceeding recorded. Names of 22 petitioners are
included in the said list. We have also examined the warrants for
search. Details of persons to be subjected to search were duly
recorded in the search warrant but due to want of space in the printed
proforma, details of some of the persons to be subjected to search
have been recorded at the bottom of the page and top of the next
page. This was for want of space in the printed performa of the
W.P.(C) Nos.823/2013 & conn. matters Page 22 of 39
warrant of search at the relevant place as the warrant was against
several persons. After minute and arduous examination of the
confidential files, with the purpose and intention to rule-out foul play
or interpolation, we are satisfied that the apprehension of the
petitioners is ill-founded and without merit. Search warrants were
signed by the witnesses and also persons to whom they were shown
when the raiding team had entered the premises, subjected to seach.
Delay in raising this contention specially when the 22 petitioners had
the requisite copy of the panchnamas and were aware that their names
did not figure in the panchnamas, is indicative of the fact that the
stand/stance was an after-thought. We are satisfied that the search
warrants were issued against the petitioners including the 22
petitioners mentioned above. Thus the said contention is to be
rejected.
7. After the judgment was reserved vide order dated 24th October,
2013, an application for directions was filed by the petitioner in Writ
Petition (Civil) No. 823/2013. We will treat the said application as
filed on behalf of the said 22 petitioners. The application makes
reference to copy of 14 search warrants and the panchnamas, which
were made available to the counsel as per order dated 24 th October,
2013.
8. With reference to the search warrants and panchnamas, it is
alleged:
(a) 22 asseessees, whose names do not figure in the
panchnamas, were indicated or recorded in the search
warrants after an (*) mark.
W.P.(C) Nos.823/2013 & conn. matters Page 23 of 39
(b) In the case of 14 petitioners, the addresses mentioned in
search warrant were different from their actual addresses.
The following chart is relied:-
Name Appeared in Warrant Address Actual Address
Warrant
Alankar Saphire Flat No. 4, RR C-12, B.M. Rohtagi
Developers P. Ltd. Apartments, 3&4, Apartment, 1, Ram
Manglapuri, Kishore Road, Civil
Mehrauli, New Delhi- Lines, Delhi-110054
30
Gopal Kumar Kanda 436/16, Civil Lines House No. 21, Ward
& Sons HUF Gurgaon No. 1, Gali
Khazanchian Sirsa
Kanda Agriculture P. Flat no. -4, RR C-12, B.M. Rohtagi
Ltd. Apartments, 3&4, Apartment, 1, Ram
Manglapuri, Kishore Road, Civil
Mehrauli, New Delhi- Lines, Delhi-110054
30
King Buildcon P. MDLR House, W.Z. 34-A Raj
st
Ltd. S.C.O. 2, 3,4, OJC Nagar-1 DADA
Jharsa Road, Gurgaon Chttriwala Marg,
Palam Colony, New
Delhi-110045
Lakshya Consultant Flat no. -4, RR C-12, B.M. Rohtagi
Pvt. Ltd. Apartments, 3&4, Apartment, 1, Ram
Manglapuri, Kishore Road, Civil
Mehrauli, New Delhi- Lines, Delhi-110054
30
MDLR Developes & MDLR House, Flat no. -4, RR
Promoters P. Ltd. S.C.O. 2, 3,4, OJC Apartments, 3&4,
Jharsa Road, Gurgaon Manglapuri,
Mehrauli, New Delhi-
30
MDLR Hotels P. Ltd. Gali Khazanchian Flat no. -4, RR
Wali, Bhadra Bazar, Apartments, 3&4,
Sirsa Manglapuri,
Mehrauli, New Delhi-
MDLR House, 30
S.C.O. 2, 3,4, OJC
W.P.(C) Nos.823/2013 & conn. matters Page 24 of 39
Jharsa Road, Gurgaon
Tara Baba Ki Kutiya,
Sirsa
Shivgori Builders Pv. 436/16, Civil Lines C-12, B.M. Rohtagi
Ltd. Gurgaon Apartment, 1, Ram
Kishore Road, Civil
Flat no. -4, RR Lines, Delhi-110054
Apartments, 3&4,
Manglapuri,
Mehrauli, New Delhi-
30
Vinman Estate P. MDLR House, Flat no. -4, RR
Ltd. S.C.O. 2, 3,4, OJC Apartments, 3&4,
Jharsa Road, Gurgaon Manglapuri,
Mehrauli, New Delhi-
30
Witness Builders Pvt. 436/16, Civil Lines Flat no. -4, RR
Ltd. Gurgaon Apartments, 3&4,
Manglapuri,
Mehrauli, New Delhi-
30
Witness Construction 436/16, Civil Lines W.Z. 34-A Raj
st
Pvt. Ltd. Gurgaon Nagar-1 DADA
Chttriwala Marg,
Palam Colony, New
Delhi-110045
Witness Developers 436/16, Civil Lines Flat no. -4, RR
& Promoters Pvt. Gurgaon Apartments, 3&4,
Ltd. Manglapuri,
Mehrauli, New Delhi-
30
Worldwide Realtors 436/16, Civil Lines Flat no. -4, RR
P. Ltd. Gurgaon Apartments, 3&4,
Manglapuri,
Mehrauli, New Delhi-
30
Rajeev Verma MDLR House, 228/1, Nai Abadi,
S.C.O. 2, 3,4, OJC Rewari-123401
Jharsa Road, Gurgaon
W.P.(C) Nos.823/2013 & conn. matters Page 25 of 39
Thus the addresses mentioned in the warrants in these cases
were incorrect. This was indicative of interpolation and
subsequent addition of names.
(c) In the case of MDLR Estate Pvt Ltd and Shivgori Builders
Private Limited, search warrants were issued for three
different locations but their names do not find mention in
any of the panchnamas for 2/3 locations. It was improbable
that the same mistake could have been repeated.
(d) King Buildcon Private Limited, MDLR Developers and
Promoters Private Limited, Vinman Estate Private Limited
and Rajeev Verma had no connection with or were not
operating from MDLR house, S.C.O., 2, 3 and 4, OJC,
Jharsa Road, Gurgaon and from the said premises actually
and only LKG Builders Private Limited was functioning.
9. We have considered the said submissions but do not find any
merit in the same. As recorded above, we had asked for the original
files and we are satisfied that the search warrants were also issued
against the 22 petitioners whose names do not figure in the
panchnamas. We find that documentation, papers etc. relating to
these 22 assessees were seized and were duly mentioned in the
annexures to the panchnamas. Seizure of the said documents is not
challenged. Thus material and papers relating to 22 petitioners were
seized as per the annexures to the panchnamas.
10. For clarity, we would like to elaborate, what has been briefly
referred to above. Search warrants (i.e. Form No. 45) were printed
documents in which requisite blanks i.e. names and details have been
W.P.(C) Nos.823/2013 & conn. matters Page 26 of 39
filled by hand. Due to paucity of space in the column, the authority
issuing the search warrant had put an, (*) mark and thereafter
mentioned other names in respect of whom the search warrant had
been issued.
11. Names of parties to be subjected to search have been
mentioned at two separate places on the first page of search warrants
Form No. 45. The first point or place refers to preconditions
mentioned in Section 132(1)(a) and (b) and the second point or place
refers to the preconditions stipulated in Section 132(1)(c). Second
page of the form requires mentioning the address where the suspected
books of accounts, other documents, money, bullion, jewellery,
valuable articles etc. were kept, by the persons who were being
subjected to search.
12. In the panchnamas relating to MDLR Estate Private Limited,
MDLR Hotels Private Limited and Shivgori Builders Private Limited,
it was noticed that their names were not included in the names of the
persons mentioned in the column relating to clauses (a) and (b) of
Section 132(1) of the Act. However, their names were mentioned in
the column relating to Section 132(1)(c) of the Act. In these
circumstances, suspicion of the petitioners is not affirmed. It does not
impel us to form and decide the contention in favour of the
petitioners.
13. The contention with regard to their addresses being different, is
misconceived and mere ipse dixit. Address of a company will
normally mean its registered office, head office etc. A person can
operate from or keep documents, money etc. at different places and
W.P.(C) Nos.823/2013 & conn. matters Page 27 of 39
not necessarily from the registered office etc. or from where business
is conducted. The address mentioned in the warrant and the
panchnama need not be the registered office or the head office but it
has be the place where the search was to be conducted and was
conducted. The address at which search could be conducted would be
the place or location, where books of accounts, documents, jewellery,
unaccounted assets etc. could be located/found.
14. In the application, the petitioners have placed reliance on the
judgment of the tribunal, Mumbai Bench in J.M. Trading
Corporation versus Assistant Commissioner of Income Tax. In the
said case, search and seizure operations were carried out in respect of
a group. The respondent-assessee therein was a partnership firm and
had claimed that they had no relation or business connection with the
group subjected to search. The panchnamas did not articulate the
name of the respondent-assessee. In the appellate proceedings, copy
of warrant obtained from the office of Director General
(Investigation) revealed name of the respondent-assessee. After
examining the factual matrix, the tribunal came to the conclusion that
though search was initiated by issue of warrant, but no search was
actually conducted in the case of the respondent-assessee. It was
further recorded that the premises where the assessee was
functioning/found, was not searched. Bombay High Court dismissed
Revenue`s appeal in view of the finding of fact that no search was
conducted against the assessee as the premises occupied by the
assessee were not entered upon and searched by the authorized
officer. It was observed that no substantial question of law arose.
Special Leave to Appeal against the said decision was dismissed.
W.P.(C) Nos.823/2013 & conn. matters Page 28 of 39
The said decision does not further the case asserted by the petitioners
herein.
15. In order to decide/determine the first contention relating to
validity of notice under Section 153A, we would like to reproduce the
provisions of Section 153A:-
Assessment in case of search or requisition.
153A. [(1)] Notwithstanding anything contained
in section 139, section 147, section 148, section
149, section 151 and section 153, in the case of a person
where a search is initiated under section 132 or books of
account, other documents or any assets are requisitioned
under section 132A after the 31st day of May, 2003, the
Assessing Officer shall--
(a) issue notice to such person requiring him to furnish
within such period, as may be specified in the notice,
the return of income in respect of each assessment year
falling within six assessment years referred to in clause
(b), in the prescribed form and verified in the prescribed
manner and setting forth such other particulars as may
be prescribed and the provisions of this Act shall, so far
as may be, apply accordingly as if such return were a
return required to be furnished under section 139;
(b) assess or reassess the total income of six assessment
years immediately preceding the assessment year
relevant to the previous year in which such search is
conducted or requisition is made :
Provided that the Assessing Officer shall assess or
reassess the total income in respect of each assessment
year falling within such six assessment years:
Provided further that assessment or reassessment, if
any, relating to any assessment year falling within the
period of six assessment years referred to in this [sub-
section] pending on the date of initiation of the search
under section 132 or making of requisition
under section 132A, as the case may be, shall abate :
W.P.(C) Nos.823/2013 & conn. matters Page 29 of 39
[Provided also that the Central Government may by
rules made by it and published in the Official Gazette
(except in cases where any assessment or reassessment
has abated under the second proviso), specify the class
or classes of cases in which the Assessing Officer shall
not be required to issue notice for assessing or
reassessing the total income for six assessment years
immediately preceding the assessment year relevant to
the previous year in which search is conducted or
requisition is made.]
[(2) If any proceeding initiated or any order of
assessment or reassessment made under sub-section (1)
has been annulled in appeal or any other legal
proceeding, then, notwithstanding anything contained in
sub-section (1) or section 153, the assessment or
reassessment relating to any assessment year which has
abated under the second proviso to sub-section (1), shall
stand revived with effect from the date of receipt of the
order of such annulment by the Commissioner:
Provided that such revival shall cease to have effect, if
such order of annulment is set aside.]
Explanation.--For the removal of doubts, it is hereby
declared that,--
(i) save as otherwise provided in this section, section
153B and section 153C, all other provisions of this Act
shall apply to the assessment made under this section;
(ii) in an assessment or reassessment made in respect of an
assessment year under this section, the tax shall be
chargeable at the rate or rates as applicable to such
assessment year.
16. Section 153A is a non obstante provision which is invoked in
case of a person where the search is initiated against him under
Section 132 of the Act or books of accounts or other documents or
any other assets which are requisitioned under Section 132A after 31st
May, 2003. The section requires the Assessing Officer to issue notice
under Section 153A of the Act, requiring the assessee in whose case
W.P.(C) Nos.823/2013 & conn. matters Page 30 of 39
search was initiated to file return of income for six assessment years
in the prescribed form and thereupon the Assessing Officer is
required to assess or reassess the total income of the said six years.
Pending proceedings for regular or reassessment proceedings in
respect of the six assessment years abate subject to sub-section (2).
17. What is noticeable that the mandate and language Section
153A(1) does not make any reference to panchnama or the date of
panchnama. It does not state that the panchnama is a pre-condition
for invoking the said Section. The words used by the Legislature are
search is initiated under Section 132 ...... The word initiate`
means to commence or start. The section is invoked and applicable
when the search is initiated`. In other words, the section ticks of and
comes into play when the search commences or is undertaken against
a person. The expression initiate` had come up for interpretation
before the Karnataka High Court in Commissioner of Income Tax vs.
WIPRO Finance Ltd. (2010) 323 ITR 467 in relation to Sections
158BC, 158BD etc., and it was observed that as per the dictionary
meaning, the said word refers to beginning, commencement or start of
proceedings. Reference was made to the decision of the Supreme
Court in Om Prakash Jaiswal vs. G.K. Mittal AIR 2000 SC 1136,
wherein expression initiate any proceedings for contempt` in Section
20 of the Contempt of Courts Act 1971, was interpreted. It was held
that the word initiate` means introductory steps or action or first
move. Black`s Law Dictionary was referred to and it was observed
that initiation of contempt proceedings` takes place when the court
applies its mind to allegation and decides to direct the alleged
contemnor under Section 17 to show-cause as to why he should not
W.P.(C) Nos.823/2013 & conn. matters Page 31 of 39
be punished. Thereafter, reference was made to different factual
situations. In Wipro Finance's case (supra), it was accordingly
observed:-
24. It is the settled principle that while assigning
meaning to any expression in any provision of a statute,
the context under which the particular expression is
used has to be borne in mind. Therefore, bearing in
mind the context in which the expression search
initiated` has been used under various sections of IT Act
including ss. 158BA(1), 158BC, 158BD, 158BE(1)(a)
and (b) and 253A(1)(a) and (b) and also in the light of
examining the dictionary meaning of the word initiate`
as extracted by the High Court of Rajasthan at para No.
34 of its judgment in the case of Rajasthan Udyog
referred to supra and also in the light of the above
observations of the Hon`ble Supreme Court in the case
of Omprakash Jaiswal (supra) we may safely assign to
the expression search initiated`; the meaning search
taken` or search commenced` or making beginning of
the search`. If this is meant by expression search
initiated` it cannot be held that the only signing of the
authorizations by the Director of IT, Bangalore, on 30th
Dec., 1996 to make a search in the premises of the
respective assessees would amount to initiation of
search`. The signing of the authorizations` would at
best amount to taking of the decision by the said
authority to initiate search` in the premises of respective
assessees but not initiation of search itself.
18. In view of the aforesaid position, referring to Section 246A, it
was held that the assessee (respondents therein) aggrieved by the
block assessment order should have filed an appeal before the
Commissioner (Appeals) and not before the tribunal.
19. Learned counsel for the petitioners relied upon Section 153B
and submitted that the said section prescribes time limits for
completing assessments under section 153A etc. Adjudication order
under section 153A of the Act has to be passed within 2 years from
the end of financial year in which last of the authorization for search
W.P.(C) Nos.823/2013 & conn. matters Page 32 of 39
under Section 132 or 132A was executed. Section 153B(2) states
that the authorization is deemed to have been executed in case of
search, on conclusion of search as recorded in the last panchnama
drawn in relation to any person in whose case, warrant of
authorization was executed. Thus, the time limit for completion of
the assessment is reckoned and has to be counted for search under
Section 132 from the date as recorded in the last panchnama drawn in
relation to any person. The contention is that Section 153B(1) & (2),
refers to panchnama and when there is no panchnama, proceeding in
respect of 22 petitioners cannot be validly initiated under section
153A of the Act.
20. We have examined Section 153A(1) above and now examine
whether in the facts of the present case failure to mention names,
affects validity of the notices issued under Section 153A of the Act?
21. The aforesaid contention of the 22 petitioners has to fail in the
present cases for several reasons. The said contention was not raised
against the first order under Section 153A passed by the Assessing
Officer which was made subject matter of challenge in a revision
before the Commissioner under Section 264 of the Act. The
Commissioner has set aside the first assessment orders under Section
153A of the Act and has passed an order of remand for fresh
adjudication vide order dated 16th March, 2012. The petitioners have
not questioned and challenged the orders dated 16th March, 2012 and
have accepted the same. All panchnamas are dated 31st January,
2008. There are no subsequent or second set of panchnamas in the
case of the search warrants against the 22 petitioners. 31st January,
2008 was the date of search as recorded in the warrants of search.
W.P.(C) Nos.823/2013 & conn. matters Page 33 of 39
The petitioners, including 22 petitioners whose names do not feature
in the panchnamas, have not denied that they were subjected to search
on 31st January, 2008. It is also not repudiated or contested that
several documents/papers relating to the 22 petitioners were seized
and were included in the list of the seized documents/papers attached
to the panchamas. Thus, there cannot be any dispute or debate
regarding the question of time limit or limitation period for
completion of assessment under Section 153A and indeed the said
issue is foreclosed. In the facts of the present case, the contention
should be and is rejected.
22. The expression panchnama` has not been defined in the Act.
Section 132(13) makes provisions of Code of Criminal Procedure
1971 relating to search and seizure applicable to searches under the
said section. Sub-section (5) to Section 100 of the said code states
that search shall be made in presence of witnesses and list of things
seized during the search shall be prepared by the officers or other
persons and signed by such present witnesses. A copy of the said list
prepared and duly signed by the witnesses shall be delivered to every
occupant or person at the place searched, is mandated and required
under sub-section (6) to Section 100 of the code. As per the manual
prepared by the Revenue relating to search and seizure operations, at
the end of search or when it is temporarily concluded, a panchnama is
required to be prepared or drawn. It is evidently clear that this
document has considerable evidentiary value and should be prepared
with care and caution. The panchnama should be exhaustive, record
of all events in the same sequence in which they have occurred and
should specify details like name of person against whom warrant was
W.P.(C) Nos.823/2013 & conn. matters Page 34 of 39
issued, time of temporary conclusion of search etc. Panchnama
should be prepared even in cases where nothing is found or seized in
the search.
23. There is certainly lapse and failure to comply with the
requirements of search and seizure manual as the panchnama did not
contain names of the 22 petitioners and does not record any
suspension of search. Even the obstruction and presence of third
persons were not mentioned in the panchnamas. But this would not
affect the validity of the search. We only record that panchnamas in
the present case to this extent are defective, but the search or
initiation of search cannot be disputed. However, the respondents
should take remedial steps and ensure that such lapses do not occur in
future, otherwise similar allegations will get repeated, entailing
litigation.
24. Panchnama is an important document because it informs the
person from whose premises the articles are seized or the person
searched as to the name of the person or the building etc. where the
search was carried out and the officers who were authorized and had
carried out the search and the articles, if any, seized. We are
informed that copy of the warrant of search is only shown to the
occupant or persons against whom it is issued and their signatures
obtained but no copy is furnished to them. Any search and seizure
operation invades constitutionally protected and cherished right of
privacy. Administrative lapse even of minor nature when there is
invasion of the said right does lead to criticism and allegations. It
will be salutary and proper that a copy of the search warrant be
furnished to the occupant or the person searched. This would curtail
W.P.(C) Nos.823/2013 & conn. matters Page 35 of 39
any allegation of interpolation, addition of names etc. However, in the
facts of the present case, we do not think that the lapse or failure in
the panchnamas affects the validity of the search or nullifies notice
under section 153A of the Act. It certainly would not affect initiation
of search which is the starting point and precondition for invoking
Section 153A of the Act. Panchama is drawn when the search stands
concluded finally or temporarily. The effect of the said lapse on
merits or to the value or degree of importance to be given to the
material seized is a matter of appraisal and merits and not a question
to be examined and answered in these writ petitions. The view, we
have taken finds support from the decisions of the Supreme Court in
I.T.O. vs. Seth Brothers & Ors. (1969) 74 ITR 836(SC) and Puran
Mal vs. Director of Inspection (1973) 93 ITR 505 (SC). Reference
can also be made to the decision of this court in Commissioner of
Income Tax vs. S. K. Katyal (2009) 308 ITR 168 (Del.), wherein the
expression panchnama` was elucidated and explained in the
following words:-
15. These provisions demonstrate that a search and
seizure under the said Act has to be carried out in the
presence of at least two respectable inhabitants of the
locality where the search and seizure is conducted.
These respectable inhabitants are witnesses to the
search and seizure and are known as panchas`. The
documentation of what they witness is known as the
panchnama. The word nama`, refers to a written
document. Its type is usually determined by the word
which is combined with it as a suffix. Examples being,
nikah-nama (the written muslim marriage contract),
hiba-nama (gift deed, the word hiba meaning gift),
wasiyat-nama (written will) and so on. So a panchnama
is a written record of what the panch has witnessed. In
Mohan Lal v. Emperor: AIR 1941 Bombay 149, it was
observed that the panchnama is merely a record of
what a panch sees`. Similarly, the Gujarat High Court in
W.P.(C) Nos.823/2013 & conn. matters Page 36 of 39
the case of Valibhai Omarji v. The State: AIR 1963 Guj
145 noted that a Panchanama is essentially a document
recording certain things which occur in the presence of
Panchas and which are seen and heard by them.` Again
in The State of Maharashtra v. Kacharadas D. Bhalgar:
(1978) 80 BomLR 396, a panchnama was stated to be a
memorandum of what happens in the presence of the
panchas as seen by them and of what they hear`.
16. We have examined the meaning of the word
panchnama in some detail because it is used in
Explanation 2(a) to Section 158BE of the said Act
although it has not been defined in the Act. A
panchnama, as we have seen is nothing but a document
recording what has happened in the presence of the
witnesses (panchas). A panchnama may document the
search proceedings, with or without any seizure. A
panchnama may also document the return of the seized
articles or the removal of seals. But, the panchnama that
is mentioned in Explanation 2(a) to section 158BE is a
panchnama which documents the conclusion of a
search. Clearly, if a panchnama does not, from the facts
recorded therein, reveal that a search was at all carried
out on the day to which it relates, then it would not be a
panchnama relating to a search and, consequently, it
would not be a panchnama of the type which finds
mention in the said Explanation 2(a) to section 158
BE.
25. Read in this manner, we do not think that the first contention
of the petitioners has any merit and the same is rejected.
26. The third and the fourth contentions are not matters relating to
initiation of proceedings or jurisdiction, but relate to alleged
erroneous or wrong exercise within or while exercising jurisdiction
i.e. the manner in which the proceedings were conducted by the
Assessing Officer, after orders of the Commissioner under Section
264 were passed. They relate to merits of the assessment orders
passed under Section 153A in the second round. These are aspects
and issues which are to be and should be raised before the appropriate
W.P.(C) Nos.823/2013 & conn. matters Page 37 of 39
appellate authorities under the statute. We have already noted the
contention of the petitioners and respondents in this regard. We have
also read the orders passed by the Commissioner under Section 264
of the Act, which the parties do not challenge and question. The
interpretation which can and should be given to the said orders and
whether or not there was violation of the requirements of Section
144A can be examined in the appellate proceedings.
27. Assessment orders under Section 153A cannot and should not
be permitted to become a matter of writ proceedings as the first
appellate forum. The first appellate statutory authority can deal with
the questions and issues raised before us, whose jurisdiction indeed
has been invoked with appeals being preferred by the petitioners.
We do not think that the contentions and issues raised, merit or justify
their examination and decision in writ petitions in exercise of extra
ordinary jurisdiction. The first appellate authority should and under
the Act, can examine the said contentions/issues and pass appropriate
orders. The first appellate authority can also examine the question as
to whether or not any prejudice has been caused to the petitioners
because of alleged failure of the Joint Commissioner to hear the
petitioners before passing an order under section 144A of the Act.
The effect of the petitioners` filing their representations invoking
Section 144A etc. is again an aspect which can be examined by the
appellate authorities. The appellate authorities have the right and
power to opine on the said subject matters. It would not be correct to
bifurcate the objections against the assessment orders and hear a part
of the objections in the writ proceedings, while the other objections
relating to merits of the assessment order are permitted and allowed
W.P.(C) Nos.823/2013 & conn. matters Page 38 of 39
to be raised in the pending appeals before the appellate authority. This
bifurcation shall not serve the cause of justice and may result in
ambiguous or even conflicting orders.
28. In view of the alternative remedy which is efficacious and
provided by the statute itself, we do not want to delve into the said
issues.
29. In view of the aforesaid discussion, we do not find any merit in
the present writ petitions and the same are dismissed. We clarify that
the observations made in the judgment are for the purpose of disposal
of the writ petitions and the appeals against the assessment order
under Section 153A of the Act on merits will be decided in
accordance with law and the observations relating to merits of the
addition made hereinabove will not be considered as binding. The
petitioners will pay costs as per the Delhi High Court Rules to the
respondents.
(SANJIV KHANNA)
JUDGE
(SANJEEV SACHDEVA)
JUDGE
December 20th, 2013
kkb
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