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TMI Blog1997 (11) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. justice should not only be done, but it should be seen to have been done. Sometimes, it is the mala fide deeds of some individual officer, which tarnishes the image of the whole Department. Such action should be deprecated. An atmosphere should be created, where the assessee should have full confidence in getting a fair justice. The element of fairness is certainly lacking in this case, as already observed by this court on October 15, 1994. It is high time that the Department itself came forward to fix the personal accountability of the officer who acts with mala fide intention or acts to achieve some oblique motive under the guise of judicial, quasi-judicial or even administrative orders, The higher authorities of the Income-tax Department should have taken stringent action against such erring officer against whom strictures had been passed by this court. Both these appeals arise out of the remand order dated October 1, 1997 (Jayanti Lal Patel v. Asst. CIT [1998] 233 ITR 588), passed by the learned single judge. The controversy involved in them are almost common, so they are being decided by a common judgment. This case has a chequered history which has been discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in order to save his face and conceal the lapses, he filed the FIR, The action of Mr. Dilip Shivpuri in pursuing the matter, was unlawful and the object was to make a character assassination of the assessee and his family members. It has been done so with an ulterior motive Of wreaking vengeance keeping in mind the private and personal grudge. Against the order, allowing the application under section 482 of the Criminal Procedure Code, the Department filed a special leave petition in the Supreme Court. It was dismissed. Thus, the Supreme Court has also approved the findings of the High Court that the action of Mr. Shivpuri was wholly illegal and mala fide. After the search by the Income-tax Department, an order under section 132(5) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), had been passed. It was held that Jayanti Lal Patel was the owner of three FDRs. Dr. Tomar had nothing to do with it. The order for release of these FDRs was also passed. Thereafter the Commissioner issued a fresh show-cause notice to Dr. Tomar as to why the amount of three FDRS. (Rs. 11,03,811) should not be added in his income. Why the valuation report obtained by the A.C.D. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax (Investigation), Circle-I (3) passed under section 132(5) of the Act, in which it was found that Jayanti Lal Patel son of Magan Bhai Patel is a non-resident Indian. He resides at 115, Grove Land, Camberwell, London. He is a very close friend of the assessee, Dr. Tomar. Whenever he comes to India, he stays with him. Instead of carrying three FDRs to London, he kept them safely with the assessee. All these FDRs were made out of foreign currency brought to India and converted in Indian rupees. The money from which FDRs were purchased had come to India through the State Bank of Indore, Jaipur, from Belgium. The said bank account has been operated by Jayanti Lal Patel since 1984. The learned single judge, after considering the matter, allowed both the writ petitions and remanded the case to the assessing authority after laying down the guidelines in the order. The learned single judge, on a perusal of the material on record, held that three FDRs were the property of Jayanti Lal Patel. There was no justification for adding the amount of FDRs in the income of Dr. Tomar. They should be deleted. The FDRs be released forthwith and handed over to Dr. Tomar, who was the custodian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Son v. I. T Investigation, Commission [1954] 25 ITR 167 (SC) ; AIR 1954 SC 207. In addition to that, reference was made to the cases reported in Rajasthan State Road Transport Corporation v. Krishna Kant [1995] 87 FJR 204 ; [1995] AIR 1995 SC 1715 ; State of Punjab v. V. P. Duggal, AIR 1977 SC 196 R. V. Bhupal Prasad v. State of A.P. [1996] AIR 1996 SC 140, M. P. Oil Extraction v. State of M. P. [1998] AIR 1998 SC 145 ; [1997] 2 Unreported judgment (SC) 438. But, surprisingly, none of these cases deal with the alternative remedy touching the controversy in hand. He has also referred to a Full. Bench judgment of this court reported in Gopi Lal Teti v. State of Rajasthan [1995] 87 FJR 89 ; [1995] 1 RLW 1, in which while considering the provisions of the Industrial Disputes Act, 1947, and the principles of natural justice, it was held that the normal course is to pursue the remedy provided under the Act and exercise the power under article 226 of the Constitution. In none of these cases, it has been observed that even if the impugned order has been passed purely on malice both in fact and law, the High Court should refuse to exercise its discretionary power under article 226. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur, in the hands of Dr. Tomar, Dr. Mrs. Tomar and B. S. Tomar, Hindu undivided family. (v) Dr. Tomar and Dr. Mrs. Tomar sold two plots for Rs. 1,71,000. That should be accepted and no double additions should be made presuming that one plot is sold for Rs. 1,71,000. The benefit as required under section 54F should also be given. (vi) The loan which has been taken from Ashok Kumar Bansal, and on his suit, the suit has been decreed, that should be accepted as such. The sale proceeds of the jewellery should be accepted as genuine and benefit of section 54F, if conditions are satisfied, should be given to the assessee. Any addition on account of any loan should not be made, if the loan has been taken from the income-tax assessees and they have given affidavits, the Assessing Officer should verify the genuineness of the loan from the concerned official in the Department. If he certifies the loan by the creditor who is the assessee of the Department, no addition is warranted. Similarly, the amount of various gifts be verified, before any addition is made." After hearing Mr. Jain and perusing the impugned order, we find that the order of remand is just and proper. The interest of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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