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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 987/2012
Date of decision: 8th July, 2013
SECURI TECH INDIA P. LTD. COMPANY ..... Petitioner
Through Dr. M.P. Raju, Advocate.
Versus
THE CHAIRMAN CENTRAL BOARD OF DIRECT TAXES
& ORS. ..... Respondents
Through Mr. N.P. Sahni, sr. standing
counsel for R-1.
Mr. Abhishek Maratha, sr. standing counsel
for respondent Nos. 2 to 4.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
SANJIV KHANNA, J. (ORAL):
Securi Tech India Pvt. Ltd., petitioner No.1 has filed the present
writ petition for refund of Rs.5,42,000/- with interest. It is stated that
the respondent Nos.1 to 4 i.e. the income tax authorities are not
obeying and complying with the order dated 13th January, 2006 passed
by the tribunal and have acted contrary to the mandate and obligation
imposed by Section 240 of the Income Tax Act, 1961 (Act, for short).
2. Rajender Prasad Tyagi, respondent No.5 was subjected to search
and seizure operations under Section 132 of the Act on 21st January,
1997. An amount of Rs.5,42,000/- was found at the residence, which
was allotted to Tuleshwari Tyagi wife of Rajender Prasad Tyagi, at
Satya Sadan, Chanakyapuri, New Delhi. Seizure memo
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(annexure P-1) records the name of the persons searched as R.P. Tyagi
and Tuleshwari Tyagi and mentions that Rs.5,32,310/- and Rs.17,000/-
in different denominations notes were found at the time of search in
one bedroom and store room of the house. Rs.5,25,000/- out of
Rs.5,34,310/- was seized.
3. By block assessment order dated 21st January, 1999, substantive
addition of Rs.5,42,000/- was made to the income of Rajender Prasad
Tyagi as declared. Another order under Section 158 BC was passed in
the case of the petitioner No.1 and addition of Rs.5,42,000/- on account
of the cash seized was made on protective basis in the hands of the
petitioner No.1. As tax demands remained unpaid by Rajender Prasad
Tyagi, this amount of Rs.5,25,000/-, which was lying in the PD of the
Commissioner, were adjusted towards the demands payable by
Rajender Prasad Tyagi. Rajender Prasad Tyagi, however, succeeded in
first appeal and addition in his hands was deleted vide order dated 25th
January, 2001 by Commissioner of Income-tax (Appeals) and it was
held that this amount of Rs.5,25,000/- belonged to the petitioner No.1.
Consequent upon the said order, the Assessing Officer passed a fresh
assessment order dated 28th March, 2002 and added Rs.5,25,000/- on
account of the cash seized on substantive basis to the income of the
petitioner No.1. This addition was challenged before the first appellate
authority and then before the tribunal. Tribunal by their order dated
W.P. (C) No. 987/2012 Page 2 of 7
13th January, 2006 quashed the original assessment order dated 25th
January, 1999 made under Section 158 BC of the Act. We only record
that the said order has become final. As a result, no addition has been
made in the case of the petitioner No.1.
4. Since then, i.e., after 13th January, 2006, petitioner No.1 has
been repeatedly asking for refund of the said amount and has written
request letters dated 15th March, 2007, 20th September, 2007, 24th
March, 2008, 20th August, 2008, 13th January, 2009, 5th February, 2009
and 26th March, 2009, etc. After a lapse of nearly three years, the
Assessing Officer for the first time responded and asked the petitioner
No.1 vide letter dated 8th April, 2009 to justify the claim of refund by
filing documentary evidence. Reply was filed by the petitioner No.1
vide letter dated 2nd May, 2009. The Assessing Officer thereupon
wrote letter dated 25th May, 2009/1st June, 2009 asking why the refund
was being claimed by the petitioner No.1, as the seized cash could be
adjusted against the demand created in the case of Rajender Prasad
Tyagi. Thereafter, nothing happened. Petitioner No.1 thereupon
approached Ombudsman but proceedings remained pending and no
refund was made.
5. The petitioner No.1 has in these circumstances approached this
Court by way of the present writ petition.
6. Rajender Prasad Tyagi, respondent No.5 has filed counter
W.P. (C) No. 987/2012 Page 3 of 7
affidavit to the present writ petition and has stated that he has no
objection in case payment is made to the petitioner No.1. In the
counter affidavit he has reproduced the findings recorded by the CIT
(Appeals), which read:-
"4.3 The cash of Rs.5,25,000/- was not found
from the bedroom or from the personal possession of
the appellant but from the room wherein records and
consumer containing entries of M/s Securi Tech India
Pvt. Ltd. were kept by virtue of going a camp office of
the said company operating from theses premises.
4.4 Thus, the fact of ownership of cash
confirmed by the persons connected to M/s Securi Tech
India Pvt. Ltd. So, it cannot be presumed to be
belonging to any other person.
4.5 The Department did not have any evidence
to reject the statement of the assessee and the owners of
the cash so found. Merely, on surmises and conjectures
the same could not be assessed or presumed to be the
undisclosed income of the appellant.
4.6 In respect of other amount of Rs.17,000/-
Sh. Yashvir Tyagi, brother-in-law of the assessee,
categorically confirmed in his statement that this
amount was left by him with his sister and was a part of
professional fee and expenses received by him for
representing a murder case at Gurgaon. The fees was
received at the residence of his sister and thereafter he
proceeded to Gurgaon from where he returned to his
home at Meerut without picking it up from the
residence of his sister. He could not come to Delhi,
thereafter, and the said cash was seized at the time of
search.
4.7 Smt. T.D. Tyagi and Sh. R.P. Tyagi at the
time of search in their statements recorded on
21.01.1997 categorically stated that this amount of
Rs.17,000/- was left by Sh. Yashbir Tyagi, Advocate
and brother of Smt. T.D. Tyagi. This was also
confirmed by Sh. Yashbir Tyagi in his affidavit and
statement filed before the A.O. In fact, the affidavit and
other confirming evidence from his client, who paid the
W.P. (C) No. 987/2012 Page 4 of 7
fees to him, were also submitted before the A.O. Shri.
Yashvir Tyagi has been assessed under Section 158 BC
at the same time and the said receipt has already been
considered as income in his hands.
4.8 Factually, the AO has not given any reason
to reject the contention of the appellant and that of Shri
Yashvir Tyagi. But he merely brushed aside the facts
and submissions by stating the same to be an
afterthought.
4.9 In respect of cash of Rs.5,25,000/- found
from the flat, I am of the opinion that the appellant
cannot be deemed to be the owner of the said cash as he
has been able to discharge his onus."
7. It is clear from the above quote that the CIT (Appeals) has held
that the money belonged to petitioner No.1 and the amount seized
Rs.5,25,000/- did not belong to any other person. The balance amount
of Rs.17,000/- it was held belonged to one Yashvir Tyagi and has been
assessed as his income under Section 158 BC. This order of the CIT
(Appeals), as noted above, has been accepted by the Revenue and it
has not been challenged or questioned.
8. We fail to understand that once the department has accepted the
said order and treated Rs.5,25,000/- as income and money of petitioner
No.1 and this was/is also the stand of respondent No.5, why the said
respondents have not refunded or repaid the said amount. We also fail
to understand why the Assessing Officer took three years to respond to
the letter written by the petitioner No.1 and their ambivalence and
distrait thereafter. Addition of Rs.5,25,000/- on substantive basis in
W.P. (C) No. 987/2012 Page 5 of 7
the case of the petitioner No. 1 was deleted by the tribunal by their
order dated 13th January, 2006. Rs.5,25,000/- should have been
refunded immediately thereafter. The department could not have
adjusted the amount against the demand payable by Rajender Prasad
Tyagi in view of the findings recorded by the CIT (Appeals) in the
order dated 25.1.2001 that the amount belonged to petitioner No.1. It
was not the money of respondent No. 5. We have recorded that there
is no dispute between the petitioner No.1 and respondent No.5 that the
amount belongs to petitioner No.1 and respondent No.5 does not claim
any right or interest on the said amount.
9. In view of the findings recorded above and the statement made
by respondent No.5, we are not inclined to entertain and examine the
submission made by respondent Nos.1 to 4 that payment or refund
under Section 132(3) can only be made to Rajender Prasad Tyagi and
not to petitioner No.1. We would not like to examine the contour of
Section 132 as the facts of the present case do not require the said
examination. The said respondents accept that the refund of
Rs.5,25,000/- is due. The amount belongs to the petitioner No. 1.
Respondent No. 5 states and accepts that the amount/refund should be
paid to the petitioner No. 1. As already noted above, the case of the
respondent No.5 throughout has been that the money does not belong
to him and the said finding has been accepted by the first appellate
W.P. (C) No. 987/2012 Page 6 of 7
authority under the Act, i.e., the Income Tax Act, 1961 and the order
has become final. Prima facie it appears that Section 132(3) is meant
to deal with the cases where there is difference or dispute between two
or more persons as to whom the money belongs. In the present case,
no such issue or question arises. In these circumstances, Section
132(3) need not be interpreted as the question is of merely academic
interest.
10. Amount of Rs.5,25,000/- along with interest is lying deposited in
this Court. It will be appropriate and proper if the said amount along
with interest is released to the petitioner No.1 by the Registry of this
Court. The petition is accordingly allowed to the extent indicated and
the respondent Income-tax authorities, i.e., respondent Nos. 1 to 4 will
pay costs of Rs.20,000/- to the petitioner No.1. The said costs will be
paid within two months by sending a cheque. Mr. Abhishekh Maratha,
who appears for respondent No.6, the Assessing Officer of Rajender
Prasad Tyagi states that as per their records no amount is due and
payable by Rajender Prasad Tyagi. In case any recovery has to be
made from Rajender Prasad Tyagi, the same will be affected in
accordance with law.
SANJIV KHANNA, J.
SANJEEV SACHDEVA, J.
JULY 08, 2013/NA/VKR
W.P. (C) No. 987/2012 Page 7 of 7
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