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
|