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TMI Blog2018 (4) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial year, in which, the order under Section 18 is received by the Principal Commissioner or the Commissioner. Thus, the prayer sought for by the petitioners in the second category of Writ Petitions, i.e. to direct the third respondent to forthwith pass orders under Section 10 (3) of the Act, if acceded to, it would be contrary to the statutory provisions under Section 11 (1) of the Act. Therefore, such a positive direction cannot be issued. Seeking direction upon the third respondent, Deputy Director of Income Tax (Investigation) Unit - 3 (3) to forthwith pass orders under Section 10 (3) of the Act is rejected, as the Writ Petitions are disposed of, directing both the Deputy Director of Income Tax (Investigation) Unit - 3 (3) and Deputy Director of Income Tax (Investigation) Unit - 3 (2) to pass orders in accordance with the provisions. Writ petition dismissed. - Writ Petition Nos.8832 to 8835, 8840 and 8841 of 2018 W.M.P.Nos.10701, 10702 and 10706 of 2018 W.P.No.8832 of 2018 - - - Dated:- 12-4-2018 - T. S. Sivagnanam, J. For the Petitioner : Mr.N.Venkataraman, Senior Counsel for M/s. C.Uma Mr. Sathish Parasaran, Senior Counsel for M/s. C.Uma For the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 of 2015, the assessee was directed to furnish certain informations/documents. 6. The petitioner, through his Authorized Representative, sent a reply, dated 17.08.2017, questioning the validity of the notice, dated 04.08.2017, and stated that, foreign remittance for purchase of the said foreign asset was through normal banking channels, as per RBI guidelines, enclosed documents in the form of annexures, and prayed for withdrawal of the notice issued under Section 10 (1) of the Act. Subsequently, another notice was issued to the petitioner, dated 08.08.2017, for the AY 2016-17, in which, copies of documents in respect of investments made by M/s. Chess Global Advisory Services Private Limited were called for. This was followed by another notice, dated 21.08.2017, calling for further information in respect of certain investments made in Foreign Countries. After the issuance of the aforesaid three notices, the third respondent issued summons under Section 8 (1) of the Act, dated 01.11.2017, calling upon the assessee to appear on 06.11.2017, for giving evidence. 7. Mr.N.Venkataraman, the learned Senior Counsel for M/s. C.Uma, learned counsel for the petitioners/assessees submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e outside India, in Schedule FA. The learned Senior Counsel took great pains to compare the figures to show that the entire investment has been fully disclosed in the ITRs and the figures tally and there is no discrepancies in the same. 10. Further, it is submitted that, with regard to the source and the manner of investment, reference was made to the appointment of M/s.Hewitson, as their Legal Specialist, for the purchase of the said asset. In this regard, the agreement entered into between the assessee and M/s.Hewitson and the tax invoices were referred to. The learned Senior Counsel also referred to the financial statement and completion statement given by M/s. Hewitson. It is submitted that, the monies were transferred through proper banking channels to the nominee's Bank and after transactions were over, bank account has been closed. The learned Senior Counsel also referred to the official copy of register of title standing in the name of the assessee. 11. Thus, it is submitted that, there is absolutely no material available in the hands of the third respondent for initiating proceeding under the provisions of Act 22 of 2015. In any event, the petitioners, having fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponse to the notice under Section 10 (1) of the Act, dated 04.08.2017, initially, the assessee submitted part of the informations on 17.08.2017 along with annexures, and subsequently, notices were issued, calling upon the petitioner to furnish further details and these proceedings are now dealt with by the third respondent, Deputy Director of Income Tax (Investigation) Unit - 3 (3), and after receiving requisite details, the third respondent has issued summons under Section 8 (1) of the Act, dated 01.11.2017. So far as the summons by the Deputy Director of Income Tax (Investigation) Unit - 3 (2), the fourth respondent is concerned, it is incorrect to state that he has straightaway issued summons under Section 8 (1) of the Act, but, he has done so, only after issuing notice under Section 10 (1) of the Act. In response to the same, the assessee, through their counsel, sent a reply, dated 17.08.2017, stating that the Deputy Director of Income Tax (Investigation) Unit - 3 (2) should not insist upon appearance of the assessee, either personally or through their representative, and this being the reason, the summons under Section 8 (1) of the Act was issued for personal appearance to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1) of the Act, an order of fresh assessment in pursuance of an order passed under Section 18 setting aside or cancelling an assessment, may be made at any time before the expiry of the period of two years from the end of the financial year, in which, the order under Section 18 is received by the Principal Commissioner or the Commissioner. 18. Thus, the prayer sought for by the petitioners in the second category of Writ Petitions, i.e. to direct the third respondent to forthwith pass orders under Section 10 (3) of the Act, if acceded to, it would be contrary to the statutory provisions under Section 11 (1) of the Act. Therefore, such a positive direction cannot be issued. 19. With regard to the first category of cases, praying for issuance of a writ of prohibition, the submission of the learned Senior Counsel for the petitioners is that, the Deputy Director of Income Tax (Investigation) Unit - 3 (2), viz., the fourth respondent in W.P.Nos.8834 and 8835 of 2018, is dealing with the very same subject matter, which is seized of and dealt by the third respondent, in which, notices have been issued and the fourth respondent cannot proceed parallely. Second limb of the submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh the same before appropriate forum. In the connection, the learned Senior Counsel for petitioners would contend that the petitioners are not challenging the notices issued against them under Act, 22 of 2015 or the proceedings initiated the under the Section 8 (1) of the Act, but what they seek is for earlier conclusion of the matter, as the proceedings are hanging like Damocles' Sword over the head of the assessees. 22. Under normal circumstances, this Court would direct the Statutory Authorities to perform their functions expeditiously when no time lines are fixed under the relevant statute, and if there is slackness, the Court would fix a peremptory time limit. However, the Court cannot exercise such power in the instant case, on the account of the time limit fixed under Section 11 (1) of the Act. Since the petitioners have agreed to cooperate in the assessment proceedings before the respondents, both the Deputy Director of Income Tax (Investigation) Unit - 3 (3) and Deputy Director of Income Tax (Investigation) Unit - 3 (2) are directed to proceed with the matter, as it is represented that certain documents were placed by the assessee before the Officer today (12.04.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any other law or any other provision of Act 22 of 2015. In such circumstances, based on the apprehension of the petitioner, the Court cannot issue writ of prohibition, to prevent the Authorities from initiating prosecution. If done, it would under Section 48 of the Act be inoperative. 27. That apart, the assessees have not placed any materials before the Court to show that the order of sanction has been passed under Section 55 or steps have been taken to initiate prosecution. Furthermore, the order of sanction to prosecute passed under Section 55 of the Act is an administrative act. Therefore, the grant of sanction being an administrative act, as held by the Hon'ble Supreme Court in Assistant Commissioner Vs. Velliapa Textiles Limited, reported in [(2003) 132 Taxmann.com 165], the need to provide an opportunity of personal hearing to the accused before according sanction does not arise. In any event, as on date, it appears that, no such order has been passed, and thus, the Court cannot issue writ of prohibition, prohibiting the respondent from initiating or exercising powers under the statute. 28. Thus, for the above reasons, the prayer sought for in Writ Petition Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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