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TMI Blog1986 (9) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... me of inspection on September 3, 1982 at Devakottai. The caption for the communication states " Action under section 132M. R M.SP. House, Devakottai." This communication having been issued based on an earlier communication dated October 15, 1982 calling upon the petitioner to attend the office on October 28, 1982 with the required particulars, the petitioner has preferred the writ petition claiming that any decision in the partition suit already instituted would be a judgment in rem and would prevail over any presumption that could be envisaged under section 132(4A) of the Income-tax Act, and that the said section is ultra vires. He has stated as follows in the affidavit: The properties involved in the proceedings belong to one Subramania Chettiar, who died in 1937 leaving behind two sons Venkatachala Chettiar and Swaminatha Chettiar. Petitioner, V. Subramaniam and V. Lakshmanan, and third respondent were born to Venkatachalam Chettiar, and Swaminathan Chettiar, adopted third respondent, and the family continued to be joint. Extensive properties are scattered all over Tamil Nadu and also in Malaysia, and the second respondent, Swaminathan Chettiar, taking advantage of the old ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing appropriate directions to enable the Department to proceed further in the matter, on the proceedings started under section 132 of the Income-tax Act. Only after securing an order dated March 24, 1982, the search was conducted, and later on, a further order was passed on June 25, 1982 permitting the Department to keep the keys of the sealed portion of the premises and the entrance in its custody till proceedings were completed under section 132. The Advocate-Commissioner was directed to finish taking inventory of the articles not listed. The proceedings pending in the High Court were directed to be transferred to the Sub-Court, Devakottai, to be dealt with by that court. An inventory having been taken in the presence of the Advocate-Commissioner and the parties, the deponent of the affidavit is in no manner interested in any of the parties to the suit. As for the vires of section 132(4A), it is only a rule of presumption for facilitating investigation and assessment; and as for the impugned notice, it is only a formal letter calling for further information, and no conclusion having been reached hitherto, nor the civil suit having been disposed of, the petitioner cannot take any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions for depositing the keys in the custody of the first respondent into court. At a time when the order of the sub-court was expected, on April 4, 1984, he received a trunk call from Devakottai informing him that on an alleged application given by the third respondent herein, the first respondent together with two officers have gone to the family house and opened it at 2 p.m. Immediately, he sent a telegram to the sub-court that he apprehends that in total disregard of the order of this court, action was being taken by the first respondent. Thereafter, he came to know that by opening the sealed premises, jewels and cash worth not less than Rs. 10 to Rs. 20 lakhs have been removed after the rooms were opened by respondents Nos. 1 and 2. In the absence of any fresh proceeding under section 132, the first respondent had acted without authority, and having been already directed by this court to seek directions from the sub-court for anything further to be done ; the first respondent on his own having opened the seals of the rooms in the premises had committed gross contempt of orders of court. The search having been conducted between April 5, 1982, and April 9, 1982, the retent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pectable witnesses. Then he deals with other averments made regarding various aspects of allegations against the Department which are not relevant for this application. Except room No. 27, no other room was ever opened, and no asset belonging to the family had been removed. During the search conducted in April, 1982, the Advocate-Commissioner, the petitioner, his brother and his advocate were all present. Whatever was found had been inventorised and forms part of the record. A copy of each of the inventories and panchanama had been given to the Commissioner. Further, he would state" ".. ...... I submit that whatever was found and inventorised at that time is there even now, and there is no question of any unauthorised removal of any jewels and cash as deliberately, maliciously and falsely alleged by the petitioner...." Taking out the passport from the sealed room is a continuation of search already made, and, therefore, there was no need to obtain a fresh warrant from any higher authorities under section 132. The passport was not a seizable item, and it will not and cannot be the subject matter of partition suit, and it is a personal document of the third respondent herein, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled the counter. Thereafter, the petitions have appeared in another list. In the counter, a claim having been made that the petitioner was asked to be present in his office for inspection on October 30, 1982, it is contended by the petitioners that on that day, even though he himself and his brother had gone, the first respondent having gone out, and no inspection of records having been granted, and as the Christmas vacation of this court had been extended beyond the usual duration, he had asked for extension of the order of stay. In those circumstances, the order dated December 23, 1982, came to be passed, taking note of the stand taken by learned counsel for the first respondent that the impugned notice was not issued under section 132(4A), and it was only for the purpose of receiving information, and that parties could make inspection and submit their representations, so that there need not be any further delay in handing over the seized articles. Learned counsel for the petitioner submitted that there cannot be presumption drawn at this stage that the family was a Hindu undivided family. Then, on the submissions made by the respective counsel, this court felt that further a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim that he had not contravened an order of the court. In spite of being fully aware that there are litigations between the parties, and claims and counter-claims are put forth against each other involving several lakhs of rupees; and himself having moved this court after the institution of the suit for permission to take action under section 132, and conducted search only under orders of this court granted on March 24, 1982, and also asked this court as early as October 6, 1982, for permission to keep the keys of the 6 rooms in his custody as the proceedings taken under section 132(5) of the Act had been started; he was thus holding the key under orders of court. His exercising powers under section 132 was not independent of the directions of this court, because it was he who filed Application No. 1133 of 1982 for permission to execute the warrant issued by the Commissioner, and only after securing orders of this court, action could be taken under the Act. These circumstances form the background for what had been done by him. Learned counsel appearing on his behalf would state that he had done it with good intention; and having obtained orders of the Commissioner, the time lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aware of. As for the Commissioner, he was held guilty of having committed contempt in persuading his subordinate to pass as order under section 132(5) and according approval to it, in spite of being conscious of the order of the court. In A. T. K. Sahakari Sanstha, Nagpur v. State of Maharashtra [1977] Crl. L.J. Vol. 2 (p. 1809) it was held : "...A mistaken advice given by a counsel coupled with the conduct of the contemner might, in the circumstances of a particular case, give rise to sufficient cause for acting in a particular way, bona fide and in good faith, though there is certainly no general doctrine which saves a party from the consequences of wrong advice ... Nobody can be permitted to disobey the order of the court by putting forward some excuse, including an excuse based on wrong legal advice... " These decisions go to show that when an authority is aware of the nature of the order passed, taking a legal opinion would not save him, if what had been done is disobedience of the order of the court. If only the standing counsel at Madras whom he had been contacting had been asked about the request made for opening the sealed room, it would have enabled the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this application, yet as Mr. Ranganathan had dealt with other points, for completion of records, they are referred to. The first contention is that the opening on April 4, 1984, was not confined only to room No. 27 but other rooms have also been opened, and valuables worth Rs. 20,00,000 in the form of jewellery, silverware and other valuables, etc., have been removed ; and that it had been done by the first respondent to help and aid the third respondent in the writ petition. It was when such an allegation was made that it resulted in an Advocate-Commissioner being appointed at the instance of the Department which wanted to show that no valuable which had been inventorised earlier, is now missing. Even in taking inventory, there had been protracted proceedings, and Ultimately, the Commissioner had submitted his report. In short, he had stated in court that whatever inventory lists had been handed over by the Income-tax Department, in taking re-inventory he had found all of those items listed in such of those lists handed over by Department to him. He would state that he had not been handed over all the inventory lists, but only truncated lists. In the counter-affidavit filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1982, as per annexure A to panchanama; and they could be easily verified at any time through banks. About a broken qural malai, it is admitted by the first respondent that it was found only in the present inventory and taken note of. Similar comment is made regarding a gold watch weighing 6 grams found in the present inventory, and therefore, the first respondent would state that it will be taken note of, since search is not complete. Another comment regarding total weight of gold is that it is not mentioned in 1982 list; but as the Advocate-Commissioner had Certified that whatever had been inventorised earlier by the Department are not missing; excess gold, etc., now found will certainly be taken note of at the time of assessment. Therefore, the inventory made in 1985 had resulted in more valuables being identified. Hence, there is no question of any inventorised article missing. Yet what is contended is that these have been planted in the room of Mrs. Ranganathan. It has to be taken out from other rooms, and, therefore, the first respondent had aided third respondent in his avariciousness to unjustly enrich himself. This is an aspect to be decided in the suit. The contesting par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complished by making summary assessment by the Income-tax Officers. The first respondent has produced during the course of one of the hearings, the approval obtained from the Commissioner to extend the time; and due to protraction of proceedings, the search still continues, and hence ,the reliance placed on these decisions could be of no avail to the petitioner in making the claim that he has become " functus officio" As for the second respondent, he was a party to the earlier order, and he knew quite well about the restriction put on taking out any of the articles or goods from the sealed rooms. It was he who was in physical occupation of the other portions of the house. He was aware that his daughter-in-law had wanted the passport to be taken out, and he received it from the first respondent on her behalf. Hence, he had also committed disobedience of the order of the court. Nothing prevented him from moving the court below or this court, wherein he has been impleaded as a party to the proceedings. The court below would have told him to move this court, being aware of the nature of the orders passed hitherto in the writ petition. Hence, he has also committed contempt of court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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