B.R. Madan vs Commissioner of Income Tax and Others

M.M. Kumar, J.—In this petition filed under Article 226 of the Constitution the petitioner has sought issuance of direction to the respondents to release the share certificates of the petitioner illegally retained as a result of search and seizure operation of the house of the petitioner on November 20, 1997, being contrary to the provisions of Section 132B of the Income Tax Act, 1961 (for brevity "the Act").

Ms. Radhika Suri, learned Counsel for the petitioner states that the short affidavit filed by Shri G. S. Randhawa, the Commissioner of income tax-1, Chandigarh, now states that the retention of documents have been reconsidered and the same have been released. The documents have been personally handed over by the Assessing Officer on August 24, 2009, as per order annexure R 3. She further states that the petition has been rendered infructuous.

On August 7, 2009, Shri G. S. Randhawa, the Commissioner of income tax-1, Chandigarh, has justified the passing of the impugned order by placing reliance on the provisions of Section 132(8) of the Act for retention of the valuable certificates belonging to the assessee-petitioner. It is not unreasonable to expect from an officer of the rank of the Commissioner, who is the appellate authority under the Act, to know the provisions of the Act which are relevant for passing of impugned order. He pleaded before us absolutely an unreasonable and unwarranted justification for passing the impugned order which has now resulted into change of stand by Shri G. S. Randhawa. The aforesaid change is evident from the perusal of para 2 of his affidavit dated August 26, 2009, which reads thus:

That it is humbly brought to the notice of this hon''ble court that in view of the law laid down in the matter of Commissioner of Income Tax Vs. Mukundray Kumar Shah, by the hon''ble Calcutta High Court, the retention of the documents has been reconsidered and the same have been released and personally handed over by the present Assessing Officer on August 24, 2009, as per order annexure R. 3.

It thus becomes evident that the impugned order could not have withstood the judicial scrutiny.

Keeping in view the unconditional apology tendered by Shri G. S. Randhawa, who is present in the court, we refrain ourselves from making any adverse comments on the conduct of the officer or the impugned order especially when it has been withdrawn. However, we express our displeasure on the functioning of the Commissioner. The casual approach adopted in filing of affidavit dated August 7, 2009, cannot be appreciated. We hope and trust that the displeasure expressed by us in this order would bring holistic change in the performance of duty by this officer. We further make it clear that if any such instance is brought to the notice of the court in respect of the performance of duty by Shri G. S. Randhawa then we would not be left with any other option except to take a serious view.

As a sequel to the above discussion, the writ petition is disposed of as having been rendered infructuous. The Computer Branch of the Registry is directed to feed this order in their computer memory so as to surface and connect this order if any lapse in future is committed by Shri G. S. Randhawa and that the observations made hereinabove may be given effect to.