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OM FINCAP PVT. LTD Vs. COMMISSIONER OF INCOME TAX-III, & ORS
November, 21st 2014
        THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Judgment delivered on: 14.11.2014

+       W.P.(C) 7639/2014 & CM 18004/2014

OM FINCAP PVT. LTD                                                  ..... Petitioner
                                   versus

COMMISSIONER OF INCOME TAX-III, & ORS                               ..... Respondents

+       W.P.(C) 7640/2014 & CM 18006/2014

PAWAN KUMAR DHINGRA                                                 ..... Petitioner

                                   versus

COMMISSIONER OF INCOME TAX-III & ORS                                ..... Respondents

+       W.P.(C) 7642/2014 & CM 18020/2014

OM PRAKASH DHINGRA                                                  ..... Petitioner

                                   versus

COMMISSIONER OF INCOME TAX-VII, & ORS                               ..... Respondents


Advocates who appeared in this case:
For the Petitioners : Mr Salil Kapoor with Mr Vikas Jain
For the Respondents : Mr Rohit Madan with Mr P. Roy Chaudhuri and
                      Mr Akash Vajpai

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                   JUDGMENT

BADAR DURREZ AHMED, J (ORAL)




W.P.(C) Nos. 7639/2014, 7640/2014 & 7642/2014                            Page 1 of 6
1.      These writ petitions arise out of common sequence of events and

are, therefore, being disposed of together, the main writ petition being

WP(C) 7642/2014 (Om Prakash Dhingra v. CIT and Others). In that

petition, there is a prayer for quashing the warrant of authorization dated

15.05.2013 and the consequent search conduct on 23.05.2013 under

Section 132 of the Income Tax Act, 1961. A prayer has also been made

for quashing all the subsequent events including the order dated

18.09.2013 under Section 127 of the said Act as also the Panchnamas

dated 24.05.2013, 23.05.2013 and 14.06.2013. Similar prayers have been

made in the other two writ petitions.







2.      Mr Om Prakash Dhingra is a director in Om Fincap Private

Limited and Pawan Kumar Dhingra, who is the petitioner in WP(C)

7640/2014, is the son of Om Prakash Dhingra and is also a director in Om

Fincap Private Limited. The latter company is the petitioner in

WP(C) 7639/2014. The relevant file was produced by Mr Madan

appearing on behalf of the Income Tax Department. We have seen the

original Form No. 45, which is the warrant of authorization under Section

132 of the said Act. The said warrant has been issued in the name of

"Shri Om Prakash" and the address given is ­ "J-6/15, DLF City-II,



W.P.(C) Nos. 7639/2014, 7640/2014 & 7642/2014                 Page 2 of 6
Gurgaon. Mr Madan has also handed over a letter dated 10.11.2014

which has been issued to him by the Assistant Commissioner of Income

Tax, Central Circle, Noida in connection with WP(C) 7639/2014 titled

Om Fincap Private Limited v. CIT and Others. He has received similar

letters in respect of the other two writ petitions also. The said letter is

taken on record.


3.      On going through the said letter, it appears that the search was

conducted essentially in respect of the Premia Group and its group

companies. Elevate Real Estate Services Private Limited is one such

group company of the Premia Group in which the directors, inter alia,

include one Shri Om Prakash.                    The residential address of Shri Om

Prakash was given as J-6/15, DLF City-II, Gurgaon. It is for this reason

that the search was conducted at the above address on 23.05.2013.

Further searches were conducted at the office premises of Om Fincap

Private Limited and the locker belonging to Mr Pawan Kumar Dhingra.


4.      The learned counsel for the petitioners stated that the searches that

were conducted at the above mentioned locations were on the basis of a

mistaken identity. The petitioners contend that Mr Om Prakash Dhingra



W.P.(C) Nos. 7639/2014, 7640/2014 & 7642/2014                          Page 3 of 6
is not the person in respect of whom the Income Tax Department

intended to conduct the search.                 This is so because Mr Om Prakash

Dhingra is neither a director in Elevate Real Estate Services Private

Limited nor is he in any way connected with the Premia Group. The

confusion has arisen because one of the directors in Elevate Real Estate

Services Private Limited was also one Mr Om Prakash, whose full name

was Om Prakash Duggal. Coincidently, the said Mr Om Prakash Duggal

was earlier also a resident of J-6/15, DLF City-II, Gurgaon.


5.      The learned counsel for the parties are agreed that Mr Om Prakash

Dhingra and Mr Om Prakash Duggal are two different persons as their

parentage is entirely different and they are holders of two different PAN

numbers. Shri Om Prakash Dhingra has a PAN Card bearing No. ADIPD

5137A. The name of his father is late Sh. Bhagwan Das. Insofar as

Mr Om Prakash Duggal is concerned, his PAN Number is BNMPP

5846B. His father's name is Ram Kumar. It is, therefore, obvious that

Shri Om Prakash Duggal and Shri Om Prakash Dhingra are two different

persons.









W.P.(C) Nos. 7639/2014, 7640/2014 & 7642/2014                        Page 4 of 6
6.      Furthermore, Mr Om Prakash Dhingra has no connection with

Elevate Real Estate Services Private Limited and consequently with the

Premia Group. As such, the search that was conducted in the premises of

Mr Om Prakash Dhingra as also in the office premises of Om Fincap

Private Limited and the locker belonging to Mr Pawan Kumar Dhingra

was a clear case of a bona fide mistake of identity on the part of the

Income Tax Authorities.


7.      Be that as it may, the fact remains that the warrant of authorization

dated 15.05.2013 did not, in fact, relate to Mr Om Prakash Dhingra.

Consequently, the search operations conducted in the aforesaid locations

would be without the authority of law. We are making it clear that we are

not quashing the warrant of authorization dated 15.05.2013 as it now

stands clarified that it does not relate to Mr Om Prakash Dhingra but to

Mr Om Prakash Duggal.                   The Income Tax Department would be at

liberty to proceed with the warrant of authorization in accordance with

law insofar as Mr Om Prakash Duggal is concerned. Subject, of course,

to any rights which the latter may have in law. But, insofar as Mr Om

Prakash Dhingra and the other petitioners are concerned, the search

operations are held as non est and all subsequent events pursuant thereto



W.P.(C) Nos. 7639/2014, 7640/2014 & 7642/2014                     Page 5 of 6
are also declared as non est. The order passed under Section 127 of the

Income Tax Act on 18.09.2013 is also set aside.


8.      The writ petitions are allowed as above. There shall be no order

as to costs.

                                                BADAR DURREZ AHMED, J



NOVEMBER 14, 2014                                SIDDHARTH MRIDUL, J
SR




W.P.(C) Nos. 7639/2014, 7640/2014 & 7642/2014                   Page 6 of 6

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