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SECURI TECH INDIA P. LTD. COMPANY Vs. THE CHAIRMAN CENTRAL BOARD OF DIRECT TAXES
July, 17th 2013
$~
*        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

W.P. (C) No. 987/2012                                             Page 1 of 7
(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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