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TMI Blog2024 (8) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... e should not be tried and punished u/s 12 of the Contempt of Courts Act, 1971 for willful and deliberate disobedience of the order HELD THAT:- This Court is of the view that the opposite party is guilty of contempt of the order passed by the writ Court and the opposite party does not have the jurisdiction or authority to interpret the order passed by the Court by putting words which are not contained in the judgment and order appears to be willful and deliberate. It is not in dispute that notice issued to the applicant for the assessment year 2012-13 dated 3.11.2014 was quashed on the ground of jurisdictional as well as consequential orders were also directed to be set aside. Meaning thereby, the Assessing Officer has to take care that the entry existing on the web portal was to be deleted immediately after passing of the judgment and order dated 31.03.2015 but deliberately and intentionally the outstanding of notice of assessment year 2011-12 became operation on the web portal till seven years and seven months which ruined the reputation of the applicant and this act of the Income Tax Authority was in deliberate and willful disobedience of the judgment and order dated 31.03.2015. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. On these facts, fine only would not meet the ends of justice because Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-2, Lucknow (now retired) was a senior officer, who was the custodian of assessing of the applicant and had committed a grossly reprehensible act and in case he is not punished, it would send down a wrong signal to other officials of Income Tax Department that even such unbusiness like conduct invites only a warning or fine, as Courts are flooded with matters, where orders are passed. Accordingly, a fine of Rs. 25,000/- along with simple imprisonment for a period of one week is awarded to the contemnor-Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-2, Lucknow (now retired). In case of default, he would suffer one day s further simple imprisonment. The contemnor-opposite party (Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-2, Lucknow (now retired)) will surrender before the Senior Registrar of this Court 3.30p.m. on 9.8.2024 who will send him jail to serve out the sentence. The Senior Registrar of this Court is directed to submit a report by 12.8.2024 to this Court in regard to compliance of the order. - Hon ble Irshad Ali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of repetition, we would like to mention that in the notice dated 11.9.2013, which is computer generated clearly reveals that the Delhi address of the petitioner was scored out and in handwriting, the local address has been added. Therefore, it is incorrect to say that the Delhi Address was not in the knowledge of the respondents and we find force in the submissions of the petitioner that local address was inserted deliberately to create jurisdiction, which, in fact, legally was not vested with the opposite party No.2. Therefore, the opposite party No.2 exceeded its jurisdiction, which not only vitiates the impugned show cause notice but the entire proceedings. In these circumstances, the entire proceedings being ab initio illegal, without jurisdiction and in violation of Section 143 (1) (a) of the Income-tax Act. For the reasons aforesaid, the writ petition is allowed and the impugned notice dated 11.9.2013 is quashed. As the notice notice has already been quashed, consequential orders, if any, are also quashed. 3. This Court had, after after several hearings, passed an order dated 22.09.2022 putting the respondent-contemnor to notice as to why the charge should not be framed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness of the applicant had also been seriously impacted which had deprived the applicant in several ways. 7. Learned counsel for the applicant next submitted that even after the writ Court had clearly provided in the judgment and order dated 31.03.201 that the tax authority at Lucknow had no jurisdiction to assess the applicant, the same officer i.e. the opposite party-Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-II, Lucknow revived the notice dated 20.09.2014 which has been issued for manual scrutiny for the succeeding assessment year 2013-14 was revived and a notice dated 24.06.2015 was sent to applicant at his New Delhi address and again on 15.03.2016 another notice was issued to the applicant threatening to make an exparte assessment pursuant to earlier notices sent in respect to the assessment year 2012-13. 8. Learned counsel for the applicant next submitted that written representations were made to the opposite party pointing out that he did not have the jurisdiction to assess the applicant in view of the orders passed by the writ Court on 31.03.2015, but the applicant was told that the order of the writ Court was being appealed against before the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortal of the income tax and in any case after the same had been pointed out clearing the hearing of the contempt petition the opposite party was instrumental in getting the demand reflected on the web portal withdrawn by the present assessing officer and as of now the demand stands withdrawn on 22.11.2022 and the said order dated 22.11.2022 has been placed on record with the supplementary affidavit of Mr. Harish Gidwani filed on 5.12.2022 and indicates that the same was being withdrawn in compliance of the orders dated 31.03.2015 passed in writ petition No.9525(MB) of 2013. 12. Learned counsel for the opposite party next submitted that upon to the jurisdiction being raised by the applicant, sufficient opportunity had been given by the opposite party and on 15.03.2016 the opposite party had given further opportunity to the applicant indicating that no application for transfer of jurisdiction had been received by the opposite party and the applicant had not invoked Section 127 by moving the competent authority to transfer the case to some other assessing officer and no application was made by the applicant to transfer his case to New Delhi. 13. Learned counsel for the opposite party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections given by this Court vide judgment and order dated 31.3.2015 and no further proceedings for assessment year 2012-13 was initiated by the opposite party is found to have inadvertently violated the orders of this Court, then he renders unconditional apology to this Court. 17. I have considered the submissions advanced by learned counsel for the parties and perused the material on record. 18. On its perusal, it is found that the judgment and order dated 31.03.2015 passed by the writ Court in Writ Petition No.9525 (MB) of 2013 is unambiguous and clear and is not confined to any particular year but lays down the jurisdiction of the authority in accordance with the provisions contained in the Income Tax Act, 1961. The Divisional Bench also considered the effect of Sections 124 and 127 of the Act and has clearly recorded that in case any objection being raised in respect of the jurisdiction of the assessing officer as has been done in the present case when the applicant had referred the pending writ petition after the issuance of the first notice dated 20.09.2014, the opposite party should have awaited the decision of the writ Court and in any case as the income tax authorities are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 31.03.2015 passed in Writ Petition (MB) No.9525 of 2013 and proceeded with the assessment year 2013-14 when the writ Court had recorded that the Tax Authority at Lucknow do not have jurisdiction to assess the petitioner at Lucknow and passed an assessment order. (ii) Why the opposite party-contemnor, Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-II, Lucknow be not punished for willfully flouting the order of writ Court dated 31.03.2015 passed in Writ Petition (MB) No.9525 of 2013 that local address was inserted deliberately to create jurisdiction, which, in fact, legally was not vested with the opposite party i.e. the present contemnor. (iii) Why the opposite party-contemnor, Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-II, Lucknow be not punished for the reason that the outstanding amount was not deleted from the web portal for several years which amounts to deliberate and willful disobedience of the judgment and order dated 31.03.2015. 21. List this contempt application on 21.11.2023 to enable learned counsel for the opposite party-contemnor to make submission on the charges so framed. 3. Ms. Radhika Singh, learned counsel for the applicant submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the applicant next submitted that the writ Court held that after change of business from Lucknow to New Delhi, the Income Tax Authorities at Lucknow did not have the jurisdiction to assess the applicant at Lucknow. It was also recorded that in case the opposite party-contemnor had any doubt, all that he could have done was to refer the matter to the Chief Commissioner of Income Tax for a decision on the question of jurisdiction but could not have proceeded with the assessment. Sections 124 and 127 were specifically referred to and it was finally laid at rest that there was no jurisdiction with the Income Tax Authorities at Lucknow. 10. Learned counsel for the applicant next submitted that during the pendency of the writ petition, an ex-parte assessment had been made pursuant to the order dated 11.09.2013 assuming jurisdiction at Lucknow. The said order was also set aside by the writ Court vide the judgment and order dated 31.03.2015. After the rendering of the judgment and order dated 31.03.2015, the opposite party-contemnor issued a notice dated 24.06.2015 recording the PAN number of the applicant and the address as D 127 East of Kailash, New Delhi manually selecting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench of this Hon ble Court in the said judgment and order dated 31.03.2015 have been made. Sections 124 and 127 of the Income Tax Act have deliberately been misread contrary to the finding recorded by the Division Bench in the order dated 31.03.2015. 15. Learned counsel for the applicant next submitted that noticeably no remorse has been expressed and no apology has been tendered. It has been alleged that in case it is found to be inadvertent mistake, the opposite party-contemnor tenders an apology, making it clear that if this Hon ble Court finds that the mistake was not inadvertent but was deliberate and wilful, no apology for the same is being tendered. 16. Learned counsel for the applicant next submitted that several affidavit have been filed thereafter to justify the contumacious action by reference to extraneous material which had not been considered or were not in existence at the time of committing contempt by scrutinizing the assessment filed at Delhi after selecting the applicant s case for manual scrutiny. In the meantime the opposite party-contemnor had allowed the demand which had been set aside by this Hon ble Court to be displayed on the income tax portal s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs passed by the High Court. The CIT has not passed any orders contrary to the judgment and order dated 31.03.2015 and the allegation to the contrary made by the respondent is factually incorrect. No such order of the CIT had been brought on record. The respondent is guilty of criminal contempt for having filed a false affidavit knowing it to be false. 22. In support of her submissions, learned counsel for the applicant placed reliance upon the following judgments: (i) Sebastian M. Hongray v. Union of India; (1984)3 SCC 82 (ii) T.N. Godavarman Thirumulpad (102) through the Amicus Curiae v. Ashok Khot and another; (2006)5 SCC 1. (iii) Patel Rajnikant Dhulalbai and another v. Patel Chandrkant Dhulabhai and others; (2008) 14 SCC 561 (iv) Civil Appeal No.4955 of 2022 titled Balwantbhai Somabhai Bhandari v. Hiralal Somabhai Contractor (Deceased ) Rep. By LRS. and others , decided on Spetember 06,2023. 23. On the other hand, learned counsel for the opposite party submitted that the opposite party-contemnor has highest regard for the dignity and majesty of this Hon ble Court and he could not even think of disobeying or violating the orders of this Hon ble Court. It is most respectfully su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empt petition was filed for assessment year 2013-14. There was no objection to the notice on jurisdiction dated 20.9.2014 and 15.10.2014 raised by the applicant within 30 days of the issue of notice under Section 143(2) as required under the provisions of 124(3) of the Income Tax Act and these notices were not even assailed in the writ petition No.9525 of 2013. 27. Learned counsel for the opposite party next submitted that no notice for assessment year 2013-14 was quashed by the Hon ble Court in its judgment dated 31.03.2015. Further, there was not even any challenge made in the writ petition regarding notices issued for the assessment year 2013-14 which were issued more than six months before the passing of the judgment in writ petition no.9525 of 2013 on 31.03.2015. The applicant has not even objected to the jurisdiction of the Assessing Officer within the mandatory period provided under Section 124(3) of the Income Tax Act, which is 30 days from the date of notice which was first issued to him on 20.9.2014. 28. Learned counsel for the opposite party next submitted that the applicant was requested to submit an application for transfer of jurisdiction u/s 127 of the Act during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays, the Assessing Officer has rightly exercised the jurisdiction and hence, demised the writ petition vide judgment dated 27.03.2014. 31. Learned counsel for the opposite party next submitted that under the online system of filing of Income Tax Returns, online return for any assessment year can be filed from any corner of the entire country and a change of address in the PAN or even return filed online does not change the jurisdiction of the Assessing Officer automatically from the PAN database, as alleged and therefore, since the jurisdiction to assess the applicant was not transferred in accordance with the provisions of the Act, the deponent was having the jurisdiction to asses the applicant for the assessment year 2013-14 even if he had filed his return with Delhi residential address. Even the acknowledgment of ITR for assessment year 2013-14 shows that it was filed under the jurisdiction of ACIT, Range-II, Lucknow. Further, since as per the PAN database the jurisdiction to the assess the applicant was with the deponent, therefore, he was supposed to perform his functions as per the provisions of the Act unless the jurisdiction was transferred as per Section 127 of the Act, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice dated 11.09.2013, allegedly in which address was inserted, issued for assessment year 2012-13 which was quashed by the Hon ble Court vide judgment and order dated 31.03.2015 and proceedings held in pursuance to notice dated 11.09.2013 are related to the assessment year 2012-13. It is also denied that the applicant has striked off the Delhi address and inserted the local address. 34. Learned counsel for the opposite party next submitted that the deponent has not held any proceeding nor issued notice to the applicant for the assessment year 2012-13, so it is not correct to say that the deponent has inserted the local address to create the jurisdiction. 35. Learned counsel for the opposite party next submitted that the proceeding for assessment year 2013-14 were not the subject matter of any litigation and proceedings were already commenced even prior to the joining of the deponent on the post of DCIT, Range-II, Lucknow on 9.10.2014. The details already provided by the deponent for assessment year 2013-14 have been discussed in detail in reply to charge-I. 36. Learned counsel for the opposite party categorically denied that in any of notices issued to the applicant the depone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese periods were kept in annual form as the digitization of arrears demands had not yet started. As per column (a), demands only in respect of assessment year 2011-12 and 2009-10 have been transferred. No demand has been transferred for 2012-13. The respondent was, therefore, in no way responsible for the demand being reflected in the portal in the year 2022 for assessment year 2012-13. 41. Learned counsel for the opposite party next submitted that during this period, the demands were all in a manual state and no uploading or digitization of arrears demands was in vogue. Thus, the demand was not uploaded on the portal till 27.09.2016, the date when the case records were transferred to Delhi after the transfer of the respondent. It is also relevant to mention here that the opposite party-contemnor was transferred from the office of Deputy Commissioner of Income Tax, Range-II, Lucknow in June, 2016 meaning that the demand was not uploaded in his tenure and as the records were transferred and the office in Lucknow could not do anything with any proceedings of the case since the case of the applicant was transferred from Lucknow to Delhi before the uploading of alleged demand on the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imprisonment as well as fine. In a given case, the court may also penalise the party in contempt by ordering him to pay the costs of the application. (2) A fine can also be imposed upon the contemnor. 7. Now in the facts and circumstances of the case, we do not propose to impose imprisonment nor any amount as and by way of fine but keeping in view the torture, the agony and the mental oppression through which Mrs. C. Thingkhuila, wife of Shri C. Daniel and Mrs. C. Vangamla, wife of Shri C. Paul had to pass and they being the proper applicants, the formal application being by Sebastian M. Hongray, we direct that as a measure of exem- plary costs as is permissible in such cases, respondents Nos. 1 and 2 shall pay Rs 1 lac to each of the aforementioned two women within a period of four weeks from today. 8. A query was posed to the learned Attorney General about the further step to be taken. It was made clear that further adjourning the matter to enable the respondents to trace or locate the two missing persons is to shut the eyes to the reality and to pursue a mirage. As we are inclined to direct registration of an offence and an investigation, we express no opinion as to what fate ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents have acted in brazen defiance of the orders of this Court and their conduct constitutes the contempt by way of (a) wilful dis- obedience of directions issued by this Court, (b) the manner in which contemnors have conducted themselves clearly tends to lower the authority of this Court and obstructs the administration of justice (c) as their conduct falls both under the definition of Civil contempt, as well as seeing dimensions of the matters, under criminal contempt. 20. In B.M. Bhattacharjee (Major General) v. Russel Estate Corpn. it was observed by this Court that all of the officers of the Government must be presumed to know that under the constitutional scheme obtaining in this country, orders of the courts have to be obeyed implicitly and that orders of the apex court-for that matter any court- should not be trifled with . 21. Any country or society professing rule of law as its basic feature or characteristic does not distinguish between high or low, weak or mighty. Only monarchies and even some democracies have adopted the age old principle that the king cannot be sued in his own courts. 22. Professor Dicey s words in relation to England are equally applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no mens rea involved. The fact situation clearly shows to the contrary. 30. Learned counsel appearing for contemnor No.1 and 2 stated that they have tendered unconditional apology which should be accepted. 31. Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward. 32. Apology is not a weapon of defence to purge the guilty of their offence, nor is it intended to operate as universal panacea, but it is intended to be evidence of real contriteness. As was noted in L.D. Jaikwal v. State of U.P. (SCC p. 406, para 1) We are sorry to say we cannot subscribe to the slap-say sorry-and forget school of thought in administration of contempt jurisprudence. Saying sorry does not make the slapper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of one month simple imprisonment in each case would meet the ends of justice. It is to be noted that in Re: Sri Pravakar Behera (Suo Motu C.P. 301/2003 dated 19.12.2003) (2003 (10) SCALE 1126), this Court had imposed costs of Rs. 50,000/- on a D.F.O. on the ground that renewal of license was not impermissible in cases where licenses were issued prior to this Court s order dated 4.3.1997. That was the case of an officer in the lower rung. Considering the high positions held by the contemnors more stringent punishment is called for, and, therefore, we are compressing custodial sentence. iii) Patel Rajnikant Dhulabhai and another (supra): 58. The provisions of the Contempt of Courts Act, 1971 have also been invoked. Section 2 of the Act is a definition clause. Clause (a) enacts that contempt of court means civil contempt or criminal contempt . Clause (b) defines civil contempt thus; 2. (b) civil contempt means wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. Reading of the above clause makes it clear that the following conditions must be satisfied before a person can be held to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the facts and circumstances of each case. 61. In Kapildeo Prasad Sah Ors. v. State of Bihar Ors., (1999) 7 SCC 569, it was held that for holding a person to have committed contempt, it must be shown that there was wilful disobedience of the judgment or order of the Court. But it was indicated that even negligence and carelessness may amount to contempt. It was further observed that issuance of notice for contempt of Court and power to punish are having far reaching consequences, and as such, they should be resorted to only when a clear case of wilful disobedience of the court s order is made out. A petitioner who complains breach of Court s order must allege deliberate or contumacious disobedience of the Court s order and if such allegation is proved, contempt can be said to have been made out, not otherwise. The Court noted that power to punish for contempt is intended to maintain effective legal system. It is exercised to prevent perversion of the course of justice. 62. In the celebrated decision of Attorney General v. Times Newspaper Ltd.; 1974 AC 273 : (1973) 3 All ER 54 : (1973) 3 WLR 298; Lord Diplock stated: There is an element of public policy in punishing civil contempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continue to ensure to the advantage of the contemnor or any one claiming under him (iv) The beneficiaries of any contumacious transaction have no right or locus to be heard in the contempt proceedings on the ground that they are bona fide purchasers of the property for value without notice and therefore, are necessary parties. Contempt is between the court and the contemnor and no third party can involve itself into the same. (v) The apology tendered should not be accepted as a matter of course and the course is not bound to accept the same. The apology may be unconditional, unqualified and bona fide, still if the conduct is serious, which has caused damage to the dignity of the institution, the same should not be accepted. There ought not to be a tendency by courts, to show compassion when disobedience of an undertaking or an order is with impunity and with total consciousness. (B) Judgments relied upon by learned counsel for the opposite party: i) Sudhir Vasudeva (supra):- 19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act. It is a drastic powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ways but in a way different from that intended by the superior court. Surely, it cannot be said that disobedience of the order by the subordinate court was contempt of the superior court. There may possibly be a case where disobedience is accidental. If that is so, there would be no contempt. What is, therefore, necessary to establish in a case of this kind is that the subordinate court knew of the order of the High Court and that knowing the order it disobeyed it. The knowledge must, however, be obtained from a source which is either authorised or otherwise authentic. In the case before us it is not clear as to who the person who signed the application dated November 27, 1957 was because the signature is illegible. It was not countersigned by a pleader nor is there anything to show that it was presented in court by a pleader authorised to appear on behalf of the complainant. Furthermore, it was not accompanied by an affidavit. Therefore, there could be no guarantee for the truth of the facts stated there- The in. No doubt, it was accompanied by a telegram and even though it was addressed to a pleader there is nothing to indicate that he was authorised to appear for the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., the burden and standard of proof. The common English phrase he who asserts must prove has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the standard of proof, be it noted that a proceeding under the extra-ordinary jurisdiction of the Court in terms of the provisions of the Contempt of Court Act is quasi criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt.The observations of Lord Denning in Re Bramblevale (1969 3 All ER 1062) lend support to the aforesaid. Lord Denning in Re Bramblevale stated: A contempt of court is an offence of a criminal character. A man may be sent to prison for it,. It must be satisfactorily proved. To use the time- honoured phrase, it must be proved beyond all reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. Where there are two equally consistent possibilitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of contempt proceeding against the petitioner even as it stands, would not give rise to a proceeding for criminal contempt and in any event the alleged contempt cannot be stretched beyond civil contempt under the prevailing facts and circumstances of the case discussed hereinbefore. Nevertheless, it would not be correct on behalf of the appellant to contend that the learned single Judge was not authorised to initiate contempt proceeding against the appellant merely because he was sitting in a single Bench although he might have been in a position to notice whether the alleged action at the instance of any party or anyone else who obstructed the cause of justice, amounted to contempt of Court of a civil or criminalnature and yet would be precluded from intiating suo moto contempt proceedings. The Contempt of Courts Act, 1971 clearly postulates the existence of only the following preconditions before a person can be held to have committed civil contempt: (i) There must be a judgment or order or decree or direction or writ or other process of a court; or (ii) The judgment etc. must be of the court and undertaking must have been given to a court; (iii) There must be a disobedience ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disobedience to the order alleging contempt has to satisfy the test that it is a wilful disobedience to the order. Bearing this important factor in mind, it is relevant to note that a proceeding for civil contempt would not lie if the order alleged to have been disobeyed itself provides scope for reasonable or rational interpretation of an order or circumstance which is the factual position in the instant matter. It would equally not be correct to infer that a party although acting due to misapprehension of the correct legal position and in good faith without any motive to defeat or defy the order of the Court, should be viewed as a serious ground so as to give rise to a contempt proceeding. 19. To reinforce the aforesaid legal position further, it would be relevant and appropriate to take into consideration the settled legal position as reflected in the judgment and order delivered in the matter of Ahmad Ali Vs. Supdt., District Jail, AIR 1987 SC 1491 : Supp. SCC 556 that mere unintentional disobedience is not enough to hold anyone guilty of contempt and although, disobedience might have been established, absence of wilful disobedience on the part of the contemnor, will not hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct . 13. It is well settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. vi) Avishek Raja and others (supra):- 19. The contours of power of the Court so far as commission of civil contempt is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the scope of the contempt power in case of breach of a Court s order has been dealt with in paragraph 14 of the report in the following manner- To hold the respondents or anyone of them liable for contempt this Court has to arrive at a conclusion that the respondents have wilfully disobeyed the order of the Court. The exercise of contempt jurisdiction is summary in nature and an adjudication of the liability of the alleged contemnor for wilful disobedience of the Court is normally made on admitted and undisputed facts. In the present case not only there has been a shift in the stand of the petitioner with regard to the basic facts on which commission of contempt has been alleged even the said new/ altered facts do not permit an adjudication in consonance with the established principles of exercise of contempt jurisdiction so as to enable the Court to come to a conclusion that any of the respondents have wilfully disobeyed the order of this Court... (Emphassis is supplied by us) 21. Similarly, in Sudhir Vasudeva vs. George Ravishekaran9 the issue has been dealt with in a manner which may be of relevance to the present case. Para 19 of the report is as follows. The power vested in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th respect to change in address and/or change in the name of the assessee, the Assessing Officer would be justified in sending the notice at the available address mentioned in the PAN database of the assessee, more particularly when the return has been filed under E-Module scheme. It is required to be noted that notices under Section 143 (2) of the 1961 Act are issued on selection of case generated under automated system of the Department which picks up the address of the assessee from the database of the PAN. Therefore, the change of address in the database of PAN is must, in case of change in the name of the company and/or any change in the registered office or the corporate office and the same has to be intimated to the Registrar of Companies in the prescribed format (Form 18) and after completing with the said requirement, the assessee is required to approach the Department with the copy of the said document and the assessee is also required to make an application for change of address in the departmental database of PAN, which in the present case the assessee has failed to do so. viii) In Re: P.C Sen v. Unknown(supra):- 5. Instead of making a frank statement before the Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rfering in any manner with the due course of the administration of justice, nor did he anticipate that his speech could have any such effect, and that by broadcasting his speech he had committed no contempt of Court nor had he any intention of doing so. 6. Banerjee, J., after a detailed examination of the relevant law and the speech broadcast, held that the speech broadcast amounted to contempt of Court in the sense that it was likely to have several baneful effects upon the petitioners in Petition No. 369 of 1965, upon their cause and upon others having a cause similar to that of the petitioners . The learned Judge accordingly recorded that the Chief Minister cannot wholly escape the charge of having committed contempt of Court , since the speech was contumacious in the sense that it was likely to have baneful effects upon the petitioners in Petition No. 369 of 1965 their cause, and upon persons having a similar cause and as such was likely to interfere with the administration of justice by the Court. The learned Judge, however, observed that the contemner Mr. Sen should be let off with an expression of disapproval of his conduct and in the hope that the sort of indiscretion will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the greatest caution : that this power merits this description will be realised when it is understood that there is no limit to the imprisonment that may be inflicted or the fine that may be imposed save the Court s unfettered discretion, and that the subject is protected by no right of general appeal. We may at once observe that since the enactment of the Contempt of Courts Act12 of 1926 and Act 32 of 1952 the power of the Court in imposing punishment for con tempt of court is not an uncontrolled or unlimited power, That, however does not justify the court in commencing proceedings without due caution and reserve. But Banerjee, J., who must be conversant with local conditions was of the view that action of the Chief Minister was likely to interfere with the course of justice for it was likely to have baneful effects upon the petitioners their cause and upon persons having a similar cause, and sitting in appeal we do not think that we can hold that he took an erroneous view of his power or of the tendency of the speech, which hs has chisraeterified as having baneful effects . Banerjee, J., has ultimately treated the contempt as technical for he has not imposed any substantiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 127 of the Act. xi. Commissioner of Income Tax v. M/s All India Children Care Educational (supra):- The Apex Court has held, thus under Section 64(3) the question of determination as to the place of assessment only arises if an objection is taken of assessment only arises if an objection is taken by the assessee and the Income Tax officer has any doubts as to the matter. But the determination is to be by the Commissioner of Income Tax or the Central Board of Revenue. The Act does not contemplate any other authority. We find that similar kind of provision is contained in sub-section (4) of Section 124. In this view of the matter, it is the Commissioner, or where the question is one relating to areas within the jurisdiction of different Commissioners concerned, or if they are not in agreement by the Board lies. It necessarily excludes any other court or authority. Complete machinery for determination of place of assessment or the authority for assessment is provided for under Section 124. xii) Commissioner of Income Tax v. Sohan Lal Sewa Ram Jaggi:- 6. We have given our anxious consideration to the various pleas of the learned counsel for the parties. From the facts above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. In absence of aforesaid, the Assessing Officer would be justified in sending the notice at the available address mentioned in the PAN database of the assessee, more particularly when the return has been filed under Emodule scheme. It is also evident that a Court will not initiate proceedings for commitment for contempt where there is a mere technical contempt. It is also evident from perusal of the judgments that an assessment year is a self-contained assessment period and a decision in one assessment year does not ordinarily operate as res judicata or estoppel in respect of the matter decided in another year. It is also evident that if the submission of the revenue on the account is to be accepted, then an order which is without jurisdiction could be bestowed with jurisdiction by passing an order of transfer with retrospective effect. It is also evident that the Apex Court has held thus under Section 64(3) the question of determination as to the place of assessment only arise if an objection is taken of assessment only arise if an objection is taken b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, which, in fact, legally was not vested with the opposite party i.e. the present contemnor. (iii) Why the opposite party-contemnor, Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-II, Lucknow be not punished for the reason that the outstanding amount was not deleted from the web portal for several years which amounts to deliberate and willful disobedience of the judgment and order dated 31.03.2015. 49. Learned counsel for the opposite while denying the aforesaid charges reiterated the same submissions as have been advanced at the time of framing of charges which have been quoted in paragraph 2 of this judgment. 50. The submission made by the learned counsel for the applicant that the writ Court vide the judgment and order dated 31.03.2015 had decided the question of jurisdiction and not of any particular assessment year and also that each year assessment being different has no application in cases where the jurisdiction prima facie appears to be correct as this Court finds that the judgment and order dated 31.03.2015 is not confined to any particular assessment year and has generally recorded that the Income Tax Authority at Lucknow does not have jurisdiction over th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been referred to the CIT in January, 2016 is not acceptable because after referring the representation, the opposite party neither sent any reminder in this regard and neither took any steps for obtaining a decision/ direction from the CIT nor any document in this regard has been produced before this Court till now so as to show his best efforts and regard towards the order of the Court. 55. The Hon ble Supreme Court as well as this Court, on several occasions while considering the willful disobedience of the order, repeatedly held that willful and deliberate contempt must be punished both by the imprisonment and fine as it is absolutely imperative to uphold the dignity and majesty of a court of law. 56. In view of the above, the ratio of judgments relied upon by learned counsel for the opposite party is not applicable to the present facts and circumstances of the case as in all the decisions a definite finding has been recorded that in case the commission of contempt is willful and deliberate, the contemnor must be punished to uphold the dignity and majesty of a court of law. 57. In the judgment rendered in the case of Balwantbhai Somabhai Bhandari (supra) relied upon by lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of this Court and there is no justifiable reason for the said action. If the action of Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-2, Lucknow (now retired) is considered in the background by the allegations made against him, it was his purposeful act to harass the applicant in spite of order of the writ Court. Unnecessarily mens rea is not required to be proved in a case of contempt but in the present case the violation is willful, deliberate and coupled with intention and motive to harass the applicant. 62. For the reasons given above, this Court finds the opposite party- Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-2, Lucknow (now retired) to be guilty under Section 12 of the Contempt of Courts Act, 1971. 63. On these facts, fine only would not meet the ends of justice because Mr. Harish Gidwani, Deputy Commissioner of Income Tax, Range-2, Lucknow (now retired) was a senior officer, who was the custodian of assessing of the applicant and had committed a grossly reprehensible act and in case he is not punished, it would send down a wrong signal to other officials of Income Tax Department that even such unbusiness like conduct invites only a wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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