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Cited In

DR. VIJAY PAHWA vs.SAMIR MUKHOPADHYAY, DEPUTY COMMISSIONER OF INCOME TAX

HIGH COURT OF CALCUTTA

Ajoy Nath Ray, J.

Matter No. Nil of 1995

May 5, 1995

(1995) 63 CCH 0318 KolHC

(1995) 129 CTR 0064, (2001) 250 ITR 0354, (1996) 84 TAXMAN 0416

Legislation Referred to

S 131(1), 133A.

Case pertains to

Asst. Year 1973-74

Decision in favour of:

Assessee

Survey Misuse of powers by IT authoritiesUnder the garb of simple survey , IT authorities summoning documents
under s. 131(1)No obstruction put or facility withheld by the assessee so as to prevent IT authorities from conducting
survey Summon immediately executed within half an hour, all books of assessee reached the IT office and
impoundedAssessee's assessments complete uptodate and no proceeding pending where exercise of summoning
jurisdiction was warrantedSuch large powers can be allowed to be exercised only strictly within their four corners and
even a millimeter departure should be shorn off by CourtsIT authorities in this case travelled several kilometers from
within permitted powersIT authority who led the highhanded operation personally made liable for costs to the tune of Rs.
35,000 by way of interim order irrespective of the result of main writ petition

Conclusion

IT authorities having blatantly misused the survey jurisdiction, leader of the survey party personally saddled with one day's
costs at Rs. 35,000 by way of interim order irrespective of final result of the writ petition.

AJOY NATH RAY, J.:

On 17th April, 1995 certain IT authorities visited the chamber of Dr. Vijay Pahwa, an eye Surgeon, being the writ-petitioner,
purporting to conduct a survey under s. 133A of the IT Act, 1961.

A document has been produced in Court, which has been kept countersigned by my Officer, which shows that there was no
obstruction put by Dr. Pahwa or any facility withheld by him from allowing a survey to be made.
 The officers conducted a survey . Clothed with the large powers given to them by IT Act as amended uptodate, they started
acting in a manner people do in autocratic countries where there is no check on petty Government Officials.

Apparently, they immediately served on 17th April, 1995 itself summons upon Dr. Pahwa for production of documents. Such
summons can be served under s. 131(1) only in case of obstruction by the person concerned or when some sort of hindrance is
put up by him. The summon was immediately executed on the same day within 30 minutes or so. All the books of Dr. Pahwa
reached the IT Office. Immediately thereafter those books were impounded at the office of the IT authorities. All this happened
on 17th April, 1995.

2. Dr. Pahwa's assessments are complete and up-to-date. There is no pending adjudication where the summoning power can be
used at all. In any event, how can the summons be issued for production on the same day and the books instantaneously
impounded ?

Now, there are other powers for search and seizure. There are other powers for reopening of completed assessments. These
were not utilized. Under the garb of conducting a simple survey under s. 133A, books of Dr. Pahwa were seized without any
apparent authority. The ITOs and authorities do not have any power to interrupt the ordinary peaceful citizens of the country in
any manner they like by utilizing the large powers given to them, without keeping strictly within the four corners of those large
powers. Since the powers vested are large, even a millimetre of departure therefrom must be immediately shorn off by the
impartial Courts of law if this country is to continue to remain a free one. In the instant case, there has not been merely one
millimetre of departure but of several kilometres from within permitted powers.

There will be interim orders in terms of prayer (e) the first alternative, and prayers (f) and (g). Since the respondents have
appeared no formal Rule need be drawn up or served. Affidavit-in-opposition is to be filed within 6 weeks from date, affidavit
in reply within 3 weeks thereafter and the matter to appear on the working day following. The above observations are without
prejudice in the writ but Samir Mukhopadhyay, the respondent No. 1, who was the leader of the operation in the above
apparently illegal procedure and highhanded actions, will personally pay today's costs to the writ petitioner assessed at Rs.
35,000 irrespective of the subsequent result of the writ. The costs, should be paid within a fortnight from date hereof, if not
paid, the same can be executed on the Original Side in the executing Court on the basis of a copy of this dictated order subject
to the pleasure of the learned Judge taking up that list, or, at the choice of the writ petitioner by instituting a contempt
proceedings in this Court before me.

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Customized Notes

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