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TMI Blog2015 (11) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... h respect to the recovery from the plaintiff of the Income Tax dues payable by the plaintiff pursuant to the search and seizure operations in the premises of the plaintiff on 4.2.1995 and refund to the plaintiff on account of excess amount lying with the defendants. The plaintiff thus ought to have raised but did not raise the claim of the amount which is the subject matter of the present suit before the Income Tax Officer who passed the computation vide Order dated 20.9.2005/27.9.2004 or if the plaintiff did make the claim with respect to interest payable on three drafts, then the same stood denied in terms of the aforesaid Order dated 20.9.2005/27.9.2004. As asked the counsel for the plaintiff a specific question, as to whether the plaintiff had raised this claim which is the subject matter of the present suit being the interest payable on account of monies of the plaintiff lying dormant in suspense accounts with the banks as the three bank drafts/pay orders were not encashed by the defendants, but counsel for the plaintiff could not answer this query of the Court one way or the other in spite of taking instructions from the plaintiff. Therefore, looking at the matter fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith interest. The defendants are Departments of Income Tax. The cause of action which is pleaded in the plaint is that a search and seizure operation was carried out on 4.2.1995 by the defendants in the office and business premises of the plaintiff, who is the proprietor of his firm M/s Foto Traders. In terms of the search and seizure operation, total silver of 7003.859 kgs (222 bars) was seized from the plaintiff alongwith cash of ₹ 49,86,500/-. The seized silver was valued at ₹ 4,44,66,395/- at that time and since the value of silver which was seized by the Income Tax Department would fluctuate during the pendency of assessment proceedings to be taken, hence, plaintiff had filed a writ petition in this Court being CWP No. 4767/1998 for return of the silver bars, and in this writ petition by an Order dated 08.10.1998, this Court directed the defendants to release the seized silver to the plaintiff on plaintiff making payment of the value of the seized silver. Plaintiff further pleads that accordingly he kept on making payments of different amounts in different installments to the defendants and consequently plaintiff got released the seized silver from the defendants. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court in the case of Commissioner of Income Tax, Bhubaneswar and Another Vs. Parmeshwari Devi Sultania and Others (1998) 3 SCC 481 which pronounces upon Section 293 of the Income Tax Act by observing that no civil suit lies against the Income Tax Department with respect to any dues claimed from the Income Tax Department if such dues are/can be the subject matter of proceedings under the Income Tax Act. 5. I have heard the counsel for the parties yesterday and today also. The neat issue in the present case is that whether this Court has inherent jurisdiction to try the present suit in view of the bar contained in Section 293 of the Income Tax Act. Section 293 of the Income Tax Act reads as under:- 293. Bar of suits in civil courts.-No suit shall be brought in any civil court to set aside or modify any proceeding taken or order made under this Act, and no prosecution, suit or other proceeding shall lie against the Government or any officer of the Government for anything in good faith done or intended to be done under this Act. 6. In the case of Parmeshwari Devi Sultania (supra), considering this very provision, the Supreme Court has made relevant observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under this Act of the rules made thereunder by the Commissioner or any person appointed under section 3 to assist him shall be called into question in any civil court, and save as is provided in sections 21 and 22, no appeal or application for revision shall lie against any such assessment or order. 12. It was contended by the plaintiff that Section 20 had no application because the order of assessment which the plaintiff sought to challenge had been made by the relevant Sales Tax Authorities without jurisdiction. This Court repelled this argument and said that an assessment based on an erroneous finding about the character of the transaction was not an assessment made without jurisdiction and was not outside the purview of Section 20 and that words in that section were wide enough to take within its sweep even erroneous orders of assessment and would be entitled to claim protection against the institution of a civil suit. The court then observed: The jurisdiction of a civil court can be excluded even without an express provision. In every case, the question about the exclusion of the jurisdiction of civil courts either expressly or by necessary implication mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 132 of the Act wherein he admitted that the gold was acquired from his and his brother's undisclosed income which he was even prepared to surrender to tax. It was thereafter in the course of further enquiry that he came up with a version that the gold ornaments in question belonged to his step-mother who bequeathed the same for the benefit of children of the plaintiff and other children that would be born to the second wife of his father. This version did not find favour with the Income-tax Officer and he was not satisfied that gold ornaments in question did not belong to Babulal. It was, therefore, not necessary for him to issue any notice under sub-section (7) of Section 132 of the Act to the plaintiff. In any case, the plaintiff was well aware of the proceedings before the Income-tax Officer and she could have also filed objection to the order made by the Income-tax Officer under Section 132(5) of the Act to the Chief Commissioner or Commissioner under Section (11) thereof which remedy she did not avail. Considering the whole gravamen of the plaintiff in the suit and the law on the subject, we are of the opinion that the Subordinate Judge and the High Court were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54,322.00 57,720.00 Rs.12,12,042.00 2001-2001 u/S 143(a)(a) 8,30,476.00 30,105.00 ₹ 8,60,581.00 2003-04 2,04,197.00 15,310.00 ₹ 2,19,507.00 (A) TOTAL OUTSTANDING DEMAND ₹ 90,67,274.00 (B) Amount paid by the assessee:- Sl. No. Amount Date of Payment Period of Intt Interest u/s 244A 1. Rs.2,05,86,500 31.03.99 1.8.99 31.5.01 @ 1% p.m. for 22 months 1.6.01 31.5.02 @ 0.75% p.m. for 12 months 1.6.02 31.8.04 @ 2/3% p.m. for 27 months ₹ 45,29,030.00 ₹ 18,52,785.00 ₹ 36,68,514.00 2. Rs.1,44,00,000 18.12.99 18.12.99 31.5.01 @ 1% p.m. for 18 months 1.6.01 31.5.02 @ 0.75% p.m. for 12 months 1.6.02 31.8.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,00,000.00 TOTAL 43,96,023.00 Assessed at ₹ 43,69,023.00. Issue necessary forms. Sd/- (Sanjay Gosain) Income Tax Officer, Ward 23(2), N. Delhi Copy to : The Assessee. O/c Sd/- (Sanjay Gosain) Income Tax Officer, Ward 23(2), N. Delhi. 8. It is not disputed before me on behalf of the plaintiff that when this Order was passed on 20.9.2005 (or even on 27.9.2004 as argued on behalf of the plaintiff), plaintiff was aware of the fact that the three bank drafts totaling to ₹ 30,50,000/- were not encashed by the defendants and plaintiff had a right to claim interest on these bank drafts in the proceedings under Section 245(D)(6) of the Income Tax Act, inasmuch as, by June/August 2004, plaintiff had encashed the pay orders totaling to the amount of ₹ 30,50,000/-. I have deliberately reproduced the entire Order dated 20.9.2005 (or 27.9.2004) above inasmuch as, the computation being done of amounts; payable for and against the plaintiff; and for and against the defendants, very much had to be and was the subject matter of the Order dated 20.9.2005 (or 27.9.2004) and all these were aspects with respect to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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