K. Navaneethan and Others vs Commissioner of Income Tax

Mohan, J.—In all these three cases, identical notices were issued under s. 288(5) of the IT Act read with r. 59 of the IT Rules, 1962, to the

following effect :

Whereas a search was conducted in your premises under s. 132 of the IT Act, 1961, on 28/29-11-1984, in consequence of information in the

possession of the Director of Inspection (Investigation), Madras :

Whereas in the course of search operations, you, in your capacity as Income Tax practitioner, were found to be in possession of the following

confidential documents, some original and some copies, meant solely for the internal use of the Income Tax Department :

xx xx xx

xx xx xx

Whereas in the course of search operation, you in your capacity as Income Tax practitioner, were found to be in possession of the following

documents, which prima facie show that you have been giving advice to your clients to enable them to avoid payment of legitimate taxes :

xx xx xx

xx xx xx

Whereas in the course of search operations, you in your capacity as Income Tax practitioner, were found to be in possession of the following

documents which prima facie shows that you have been writing letters to the Chairman, CBDT in the name of third-parties with ulterior motives :

xx xx xx

xx xx xx

Whereas I am prima facie of the opinion that your possession of the above confidential Income Tax documents and other documents is grievously

prejudicial to the interests of the Revenue and your conduct is unbecoming of an Income Tax practitioner and you are guilty of misconduct in

connection with Income Tax proceedings.

You are hereby, therefore, required to submit within twenty days of the receipt of this notice, your written reply to the above charges supported

by documentary evidence. You may also state whether you wish to be heard in person ........"" (relevant portions alone extracted)

The petitioners have obviously rushed up to this Court on the threshold of the matter on the simple ground that the Income Tax department has

no jurisdiction to issue the notices, because, under s. 288 of the IT Act, 1961, he must be an authorised representative in respect of that particular

matter in which he is given the authorisation in writing. But, in case where he has not been authorised and the file, were handed over in connection

with some other matter, even if they contained the documents which have been listed in the notices, certainly the petitioners cannot be proceeded

against. This is also the implication of r. 60. As against this, Mrs. Nalini Chidambaram, ld. Standing Counsel for the department, would contend

that, earlier, the self-same petitioners moved this Court by way of Writ Petition Nos. 8725, 8978 and 8979 of 1985, and Shanmukham, J.,

quashed the same and at that time, the petitioners did not raise the points of jurisdiction. Therefore, this would constitute res judicata.

It is not necessary for me to go into the merits of the case. Suffice it to hold that there is no question of any res judicata here, because,

consequent on the order of Shanmukham, J., in Writ Petition Nos. 8725, 8978 and 8978 of 1985, the proceedings have been re-commenced and

the show cause notice, which have been extracted, have come to be issued. It is not necessary, at this stage, to go into the question whether there

is total lack of jurisdiction. Learned counsel for the department produces the relevant files and so far as they are seen, the petitioners have been

authorised to appear in other proceedings. Whether that would amount to authorisation in these proceedings, in terms of s. 288 and r. 59, I need

not cause to consider at this stage. It is well open to the petitioners to urge all the contentions available to them including that they have not been

authorised in the particular cases in which event, the department will consider the points raised and dispose them of on merits. Then the Court can

always examine the correctness of the view taken by the department. Therefore, at this stage, it is not for me to embark on an enquiry whether, in

each of the cases, the petitioner was an authorised representative or not. From this point of view, I dismiss all the writ petitions as premature,

leaving the other remedies open.