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CA/15767/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 15767 of 2010
In
SPECIAL
CIVIL APPLICATION No. 13498 of 2010
For
Approval and Signature:
HONOURABLE
MS.JUSTICE HARSHA DEVANI
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================
NEESA
LEISURE LIMITED & 1 - Petitioner(s)
Versus
UNION
OF INDIA THROUGH SECRETARY & 3 - Respondent(s)
=========================================
Appearance :
MR
ASPI M KAPADIA for
Petitioner(s) : 1 - 2.
None for Respondent(s) : 1,
MRS MAUNA M
BHATT for Respondent(s) : 2 -
4.
=========================================
CORAM
:
HONOURABLE
MS.JUSTICE HARSHA DEVANI
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 04/03/2011
CAV
ORDER
(Per
: HONOURABLE MS.JUSTICE HARSHA DEVANI)
By
this application, the applicants – original petitioners seek
the following substantive reliefs:
“[3.0] The
applicants pray that this Hon’ble Court be pleased to issue an
appropriate writ, order or direction and be pleased:-
[A] to
make known / supply the contents of the Satisfaction Note to the
applicants / petitioners before proceeding with the further hearing
of the petition;”
In
the light of the order passed in the main matter, the reliefs
claimed in the application do not survive.
However,
it may be pertinent to note that in sub-para (2) of paragraph 2 of
the application, it has been stated that the applicants/petitioners
also have reason to believe and apprehend that the satisfaction note
may have been fabricated later on, post-search by the respondents in
order to substantiate their action.
In
response to the application, the respondents have filed affidavit
in-reply, wherein it has inter
alia been stated
that the Department has taken a very serious view of the outrageous
assertions made in the unnumbered para-2 appearing on page-2 of the
application, which states that the applicants have reason to believe
that the satisfaction note has been subsequently changed. It is
further stated that this being a very serious allegation, which is
made on oath, the applicants may be directed to disclose the
information on the basis of which such an untrue allegation has been
made.
On
14.12.2010, this Court had passed an order in the following terms:
“S.O.
to 27.12.2010.
To
be heard with Special Civil Application No.13498 of 2010.
The
applicant to justify the averments made in sub-para 2 of paragraph 2
of the application.”
Pursuant
to the said order, on behalf of the applicants, applicant No.2 has
filed an affidavit stating that the petitioner wishes to make
available most the material which lead him to believe that the
satisfaction note/ground for search have been fabricated, malafide
and based on material collected/fabricated post facto. It is stated
therein that having failed to persuade the petitioner for making
non-existent disclosure under pressure through various means, the
Department had started taking recourse of fabricating papers and so
called evidences to justify the search as detailed in the affidavit.
It is further averred that the Department had given notice to some
parties to extract confession statement against the petitioner.
Being alarmed the petitioner had sent a letter to the Deputy
Director of Income Tax (Inv) asking them to desist from using such
parties under duress to extract illegal confession statements. In
fact the party had been given legal notice by the petitioner clearly
saying therein that legal action will be taken against the party for
failure of submitting account confirmation and making defamatory
statement and also committing breach of trust for spreading the
canard that the material supplied by them was under bogus bills. It
is further stated that it had come to the notice of the petitioner
that said party/parties were facing multiple tax proceedings and
were thus totally under mercy and influences of tax authorities. It
is also averred that in the affidavit filed by the respondent No.2,
it had been stated that the petitioner No.2 had requested the
ADIT/DDIT (Investigation) not to take statement of Shri Bharat Shah.
That the petitioner is
not aware who Shri Bharat Shah is and has never asked the Income Tax
Department not to take the statement of Shri Bharat Shah. The letter
to Income Tax Department and the legal notice to the party only
mentioned the name of the firm. It is clearly evident that someone
called Shri Bharat Shah is being used by the Income Tax Department
to extract confession/illegal statement in order to justify the
illegal action of search. It is, inter
alia, stated that
pressure tactics had been used right from beginning onto the
petitioner to make disclosure of non-existent income. It is
submitted that inference is obvious that the Department did not have
any material to launch search in first place and subsequent
non-discovery of evidence relating to unaccounted income, assets
etc. and in light of resistance shown by the petitioner and after
failing to make petitioner to make any non-existent disclosure, the
Department has resorted to create papers and evidence by taking
statement from parties already facing various income tax inquiries
for years. The main refrain of the applicants in the affidavit is
that the Department has been trying to pressurize the petitioner and
his representative to make non-existent disclosure. It is further
stated that the petitioner No.2 is in possession of some other
relevant material, which if produced through this affidavit may lead
to further changes of track of search related investigation, further
“fishing and roving” inquiry, further lengthening of on
going investigation and further collection of confession under
duress, which altogether will be detrimental to the interest of the
petitioner. The petitioner has requested to permit the petitioner to
present himself in person for restricted viewing of such papers and
narration of some other facts in confidentiality to the Court.
On
the other hand, Mr. M. R. Bhatt, learned Senior Advocate appearing
for the respondents has strongly objected to the allegations that
the satisfaction note may have been fabricated later on, post-search
by the respondents in order to substantiate their action.
This
Court has perused the satisfaction note and the material on record
and is satisfied that the allegation made in the application is
without any basis whatsoever. The Court is of the view that in the
absence of any specific allegation against any officer concerned,
the practice of making wild unsubstantiated allegations as made in
the application needs to be deprecated in the strictest terms.
Subject
to the aforesaid, the application stands disposed of.
[HARSHA
DEVANI, J.]
[H.B.ANTANI,
J.]
parmar*
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