2018 (9) TMI 1633 - HC - Income Tax

Refund of Seized cash - Execution of orders - period of limitation prescribed by the Limitation Act, 1963 for bringing a Writ Petition to this Court - Held that - The petitioner knows that the details which he had provided prior as well have not resulted in the alleged admissible refund released or paid with interest. If the petitioner was supposed to receive this amount in terms of this Court s order within 12 weeks from 25 -3 -2008, failing which it was to earn simple interest at 6% from the date of seizure till the date of return, then, we would have expected such a petitioner to move this Court in execution proceedings so as to enforce the order. Every order passed by this Court under Article 226 of the Constitution of India can be executed as if it were a decree made in the exercise of the Ordinary Original Civil Jurisdiction of this Court. Such step is not taken as well. The Revenue should not have been allowed to retain the amount. However, the petitioner s inaction from the date of this Court s order and the period stipulated therein coming to an end, till 4 -7 -2018, which is the date on which this second petition has been filed, is enough to dismiss the petition. It is neither maintainable, and assuming it is, the same is clearly barred by delay and laches. No assistance can be derived from the Assessment Order which, in any event, is dated 2 1-2 -2009, or the communication at Page 50, dated 5- 7 -2017. It is shocking and surprising that Mr. Tiwari would argue that there is no period of limitation prescribed by the Limitation Act, 1963 for bringing a Writ Petition to this Court. Admittedly, no appeal is filed to challenge the Assessment Order dated 2 1-2 -2009 even after no cognisance is taken of the request to rectify it. Mr. Tiwari would submit that it is the respondent- Department s fault and when it fails to comply with this Court s order and addresses a communication at page 51 dated 11 -10 -2017, we must not throw out this petition on technical grounds - no writ petition could have been brought by relying on the communication from the Revenue. We are unable to agree with the petitioner for the simple reason that this Court is not obliged to entertain belated and stale claims.

Summary

Issues Involved:
1. Maintainability of the writ petition for recovery of money.
2. Bar of limitation under the Limitation Act, 1963.
3. Compliance with the High Court's order dated 25th March 2008.
4. Fresh cause of action based on subsequent communications and actions by the Income Tax Department.
5. Equitable and discretionary nature of writ jurisdiction.

Detailed Analysis:

1. Maintainability of the Writ Petition for Recovery of Money:
The court questioned the maintainability of the writ petition for the recovery of money, especially when the recovery is in terms of a prior court order. The court noted that merely filing a writ petition does not allow it to pass an order contrary to the Limitation Act, 1963. The petition was filed in 2018, ten years after the right to recover the money accrued, raising doubts about its maintainability.

2. Bar of Limitation under the Limitation Act, 1963:
The court emphasized that the Limitation Act, 1963 prescribes a time limit for filing suits for recovery of money. The petitioner argued that continuous correspondence with the authorities should save the bar of limitation. However, the court disagreed, stating that the petitioner’s inaction from the date of the court's order in 2008 until filing the writ petition in 2018 indicates that the petition is barred by delay and laches.

3. Compliance with the High Court's Order Dated 25th March 2008:
The court reviewed the compliance with its order dated 25th March 2008, which directed the Income Tax Department to issue a fresh Show Cause Notice within 12 weeks and refund the seized amount with 6% simple interest if no notice was issued. The petitioner claimed that despite multiple communications, the refund was not processed. The court noted that the petitioner should have moved the court in execution proceedings to enforce the order, as per Rule 647 of the Bombay High Court (Original Side) Rules, which treats such orders as decrees.

4. Fresh Cause of Action Based on Subsequent Communications and Actions by the Income Tax Department:
The petitioner argued that subsequent communications and an assessment order provided a fresh cause of action. The court examined these documents and found that they did not constitute new grounds for a writ petition. The court highlighted that the assessment order dated 2-12-2009 and subsequent communications did not result in a refund, and the petitioner did not challenge these through the appropriate legal channels.

5. Equitable and Discretionary Nature of Writ Jurisdiction:
The court reiterated that writ jurisdiction is equitable and discretionary, not meant to benefit litigants who delay action. The petitioner, being a businessman, was expected to act promptly. The court criticized the petitioner for not taking timely action despite having a favorable order and dismissed the petition on grounds of maintainability, delay, and laches. The court emphasized that writ jurisdiction should not be used to circumvent the limitations prescribed by the Limitation Act, 1963.

Conclusion:
The writ petition was dismissed on the grounds of maintainability and delay and laches. The court underscored the importance of adhering to the limitation periods and the appropriate legal procedures for enforcing court orders. The equitable and discretionary nature of writ jurisdiction was highlighted, stressing that it should not be used to revive stale claims.