AI Structured Summary
Not yet generated for this judgment
Judgment
Shivaraj Patil, J.—The petitioner has sought for a writ of certiorarified mandamus to call for the records of the first respondent in his
proceedings No. AA/MDS/11(341)2/93-94, dated 25.2.1994, and further to direct the first respondent to grant reasonable opportunity to the
petitioner and consider her objections with regard to the jurisdiction of the first respondent as well as the merits of the case and pass orders.
The petitioner states that the writ petition is filed for a certiorarified mandamus to quash the proceedings of the appropriate authority leading to
the impugned order which has been passed without any authority of law and on erroneous assumption of jurisdiction. The power of attorney holder
one Mr. Devendra S. Pancholi, a finance broker, without the knowledge of the petitioner filed Form 37-I on behalf of the transferor and another
person who is a power agent, has signed on behalf of the transferee in Form 37-I and represented to the authority that the petitioner, (transferor)
has no objection regarding acquisition, and accordingly the authority acquired the property. The petitioner came to know about the acquisition only
when the impugned order was given by the power of attorney holder to the petitioner. She was not aware of the agreement stated to have been
entered into by the power of attorney holder. The order of acquisition was made behind the back of the petitioner, was one passed without
jurisdiction, particularly when the Form 37-I was filed by the power of attorney which is not envisaged in law. The first respondent did not issue
any notice to the petitioner even though a notice might have been issued to her power of attorney holder.
The petitioner is the owner of Plot No. 49, Door No. 33, North Usman Road, T. Nagar, Madras-600017. The said building was constructed in
the year 1987 occupying an area of 6,500 Sq ft. which is under occupation of a tenant, and further it is subjected to two mortgages, one in favour
of Muthialpet Benefit Fund for a sum of Rs. 25,93,278 and another in favour of K.K. Shah (H.U.F.) and others for a sum of Rs. 7,00,000. The
power of attorney holder is related to the second mortgagee K.K. Shah. As per their advice the petitioner gave a registered Power of attorney
dated 30.6.1992 to sell the property at No. 33, North Usman Road, T. Nagar, Madras.
The said power of attorney, without her knowledge, entered into an agreement on 4.11.1993 for sale of the property to one Mr. R. Ramasamy
and Mrs. Poornima Ramasamy, residing at No. 123, V.V. Koil Street, Amainthakarai, Madras-600029 for a sale consideration of Rs. 38,00,000.
From the impugned order the petitioner found that on 11.1.1993 the power agent himself signed and filed Form No. 37-I prescribed under Rule
48(1) of the Income Tax Rules, 1962 (hereinafter referred to as the Rules) of the Income Tax Act, 1961, (hereinafter referred to as the Act) to the
appropriate authority for permission, accompanied by copy of the sale deed dated 4.11.1993. The appropriate authority has come to the
conclusion, on examination of the said form that there is under-statement of the consideration in excess of 15% with reference to the fair market
value, and so the authority invoked the provisions of Chapter xx-c of the Act.
The petitioner had filed writ petition earlier in W.P. No. 5642 of 1994 before this Court contesting the validity of the order passed by the first
respondent confining to the points regarding the representation made by her power of attorney before the first respondent, making the power of
attorney also a party in that writ petition. In the affidavit filed in support of the said writ petition it was specifically stated that she was not
challenging the merits of the order passed by the first respondent as the petitioner was not aware of the entire facts and circumstances of the case.
The said writ petition was dismissed by this Court on 30.11.1994. The petitioner preferred writ appeal against the said order. The writ appeal was
dismissed as it was belated and without condoning the delay in filing the said appeal. It is stated that there is no pronouncement on the merits of the
case in the writ appeal.
In this writ petition the petitioner states that she is challenging the very validity of the order of the first respondent as it is patently wrong, illegal
and void ab initio. Since these specific issues could not be raised on the earlier occasion for want of details the petitioner has no other legal remedy
but to persuade this Court under Article 226 of the Constitution of India, lest there is definite threat of losing her property under the impugned
proceedings.
It is submitted that Section 269-UC of the Act and Rule 48-L of the Rules as well as Form 37-I do not indicate that a power of attorney holder
can sign the prescribed form in order to seek permission of the appropriate authority under Chapter XX-C of the Act. After examining the
statement under Form 37-I the respondent authority came to the conclusion that there was an understatement of the consideration in excess of
15% with reference to the fair market value. Accordingly notices were issued for a personal hearing. The petitioner was not aware whether any
notices were issued in her name. In view of the notice issued by the first respondent the transferee under letter dated 16.2.1994 informed the
authority that they were no longer interested in that matter. Hence, a personal hearing was granted to the power of attorney holder Shri Devendra
S. Panjoli who represented along with an Advocate and gave a letter to the effect that the petitioner had no objection to the acquisition. She was
not aware of the date fixed for personal hearing. Three objections raised regarding the merits of the acquisition were rejected by the authority as
not tenable. The petitioner states that effective opportunity was not given to her as contemplated in the Supreme Court decision in C.B. Gautam
Vs. Union of India and Others, .
As regards the merits of the case, the petitioner states that the property was under tenants'' occupation, and was also subjected to two heavy
mortgages. Hence the consideration of Rs. 38 lakhs agreed is reasonable. The respondent has not gone into the bona fides of the transactions.
They have mechanically applied the formula of 15% difference in value and assumed jurisdiction. There was no comparison of the value of similar
property. The transferor and the transferee were not fully heard as the authorities proceeded on the concession given by the power of attorney.
When the authorities have not taken the relevant considerations to decide the matter, there was no basis or reason to compare the value of another
property which was agreed for sale at Rs. 4,47,12,000. The extent of the said property is 45 grounds and interest-free deposit of Rs. 50,00,000
was also given in the above matter. Hence the sale instance relied on by the first respondent is totally unjustified.
Chapter XX-C was intended to replace the old provisions that stood prior to the insertion of the present chapter which does not contain any
specific provision to make a legislative presumption as was originally there, u/s 269-C of the Act. Thus there is no legal basis to mechanically come
to the conclusion that any property in which there is a difference in value of 15% of the stated consideration, as compared to the market value, be
automatically acquired by the Income Tax Department. The petitioner has made representation to the Central Board of Direct Taxes, Delhi to
reconsider the matter and the said representation is pending. It is further submitted that the respondents ought to have granted fair and reasonable
opportunity of hearing to the petitioner in person as indicated in Supreme Court case i.e., C.B. Gautam Vs. Union of India and Others, .
According to the petitioner the impugned order is bad on the following grounds:
(i) The order under challenge is contrary to law, and facts and circumstances of the case;
(ii) It is bad as it was passed without hearing the owner of the property. There is no specific rule or any section, permitting the power of attorney to
sign the Form No. 37-I. Hence the entire proceedings conducted based on such form, signed and submitted by the power of attorney, are vitiated;
(iii) The impugned order passed by the first respondent is on the basis of materials extraneous to the issue in question, and there was total non-
application of mind by the first respondent while passing the impugned order. The impugned order was passed without keeping in view the
principles laid down in C.B. Gautam Vs. Union of India and Others, aforementioned; and
(iv) The appropriate authority has failed to consider all the relevant aspects of the case before passing the impugned order.
Counter-affidavit is filed on behalf of the first respondent opposing the claim of the petitioner. It is submitted that the petitioner had filed Writ
Petition No. 562 of1994TO quash the very same order dated 25.2.1994 and to direct the appropriate authority to hear the objections of the
petitioner and decide the issue regarding the acquisition of the property, and therefore she cannot be permitted to raise the very same grounds once
again on the principles of res judicata, looking to the prayers made in both the writ petitions. It is also relevant to point out that all the Abjections
that have been raised by the petitioner in the present writ petition were projected before this Court in the earlier Writ Petition No. 5642 of 1994 as
can be seen from the order dated 30.11.1994.
In paragraph 14 of the affidavit filed in support of the present writ petition the petitioner has specifically stated that the consideration of Rs.
38,00,000 agreed to, is reasonable. It is surprising, in such circumstances the petitioner is challenging the order of purchase at the same price. The
reading of the power of attorney given by her shows that she gave full and complete authority to the agent to do all acts and deeds in connection,
with the sale of the property. It may be noticed that the petitioner had decided to sell the property in question and it was for that purpose she had
given the power of attorney, and had also given an advertisement in the newspaper ''Hindu'' dated 10.1.1994. If the petitioner had any grievance
against the agent she could take proceedings against the agent for such relief she may be entitled, but it will not enable her to challenge the order of
purchase made by appropriate authority which is legal and valid.
It is further cotended that, in view of the value of the property being Rs. 38,00,000 Chapter XX-C of the Act was applicable. For the sale of
the property the power of attorney was perfectly justified in signing the Form 37-I as part of the proceedings. Reference to Section 288 of the Act
that the agent was not authorised representative as contemplated under the said section is not relevant. That section relates to an authorised
representative representing an assessee in any proceedings before the Income Tax Authority, but it will not apply to the appointment of a person
under a general power of attorney under the general law. Once an agent is appointed he steps into the shoes of the principal who has appointed
him, and under law he will be entitled to all acts and deeds which could be done by the principal.
Even though the power of attorney in his letter dated 18.2.1994 stated that in view of the transferee having backed out of the transaction, he
had no objection to the Department purchasing the property subject to certain conditions, the appropriate authority in its order dated 25.2.1994
has gone into various objections raised by the power of attorney agent on merits of the case in detail, and has given elaborate reasons. Reading of
the affidavit filed in support of the writ petition indicates that the petitioner is really aggrieved only because she was not kept informed by the power
of attorney agent regarding the various steps that were taken by the agent in regard to the sale of the property, wherein the petitioner herself has
stated that the price of Rs. 38,00,000 was reasonable. She cannot have any valid grievance when the appropriate authority has proceeded to
purchase the property at the same price.
It is also submitted that the petitioner having had an opportunity to raise all these grounds in the earlier writ petition in which she challenged the
very same order of purchase, but not having raised the same, cannot be permitted to challenge the very same order of purchase once again on the
ground that she did not have in her possession certain documents or records. Nothing prevented her from obtaining the copies of the documents
before she filed the earlier writ petition. If she has failed to take appropriate steps in that matter that cannot be a ground for challenging the
impugned order which is valid. On these statements the respondent has prayed for dismissal of the writ petition.
Shri V.S. Jayakumar, learned Counsel for the petitioner contended,
(i) that the impugned order passed by the appropriate authority is contrary to law, without jurisdiction and is one passed without taking into
consideration the relevant aspects, and taking materials extraneous to the issue involved, into consideration. Hence, it cannot be sustained;
(ii) that the impugned order passed without providing an opportunity of hearing to the petitioner after issue of notice is invalid in law and is liable to
be set aside;
(iii) There is no specific rule or provision permitting the power of attorney agent to sign Form No. 37-I which forms basis to assume the jurisdiction
by the respondent. Hence the appropriate authority has acted without jurisdiction in passing the impugned order on the basis of such form
statement filed by the power of attorney holder of the petitioner;
(iv) The first respondent has not compared the value fixed in the agreement with any other property of the same nature, extent and situation, and
has not taken into consideration the encumbrances and the tenancy rights over the property while arriving at the fair market value of the property,
and hence the impugned order is bad and cannot be sustained;
(v) that in the earlier writ petition, the petitioner did not challenge the impugned order on merits of the acquisition and the challenge was to the
action of the power of attorney holder who made representation to the authority that he had no objection for acquisition of the property. He drew
my attention to the said averment in the affidavit. According to him this second writ petition is maintainable to challenge the impugned order, on its
merits relating to the acquisition, and more so when the petitioner did not possess/get copies of documents at that stage of filing the earlier writ
petition.
The learned Counsel in support of his submission relied on the following decisions:
(i) T. Isac Trueman Vs. Lakshmipuram College Society, and others, , (ii) Ideal Garden Complex (P) Limited, Salem v. Vijai Agencies, Salem
1995 T.L.N.J. 23; and (iii) Nand Kishore Vs. State of Punjab, .
Per contra, Mr. S.V. Subramaniam, learned Senior Counsel for the Income Tax Department argued in support and justification of the
impugned order contending,
(i) that the second writ petition is not maintainable challenging the impugned order by the petitioner when she had challenged the same order in
W.P. No. 5642 of 1994 before this Court and failed. In this regard he drew my attention to the prayers made in both the writ petitions extracted in
the counter affidavit filed by the respondent No. 1. He also pointed out that all the objections that have been raised in this writ petition were also
projected before this Court in the earlier Writ Petition No. 5642 of 1994 at the time of hearing, which position will be clear from the order of this
Court passed on 30.11.1994 in W.P. No. 5642 of 1994. If the petitioner has not taken other grounds which were available to challenge the
impugned order in the earlier writ petition which ought to have been raised, cannot be permitted to be raised now to challenge the impugned order.
In short the learned Counsel stated that the present writ petition is not maintainable on the principle of res judicata;
(ii) that the petitioner in paragraph 14 of the affidavit filed in support of the writ petition has herself stated that the price of Rs. 38,00,000 was
reasonable and when the appropriate authority has passed the order to purchase the property at the same price, it is not understandable how the
petitioner can make any grievance;
(iii) when the petitioner had executed the power of attorney, the agent acting under the said power of attorney was complement to sign Form 37-I,
more so when under the power of attorney the agent was given power to sell the property. Under the general law, nothing prevented the agent to
sign Form 37-I. According to him Section 288 of the Act deals with an authorised representative contemplated under that section, and it is not
relevant for the purpose of general power of attorney, under which the agent is authorised to act on behalf of the principal;
(iv) when the power of attorney agent by his letter dated 18.2.1994 acting on behalf of the petitioner stated that there was no objection to the
Department purchasing the property in view of the fact that the transferee has backed out the transaction, the same binds the petitioner. Even
otherwise, the impugned order on merits also shows that elaborate reasons are given and all aspects were taken into consideration. The petitioner
having given authority to the power of attorney and an opportunity of hearing was given to the agent, she could not insist that a separate notice
should have been sent to her and she ought to have been also heard; and
(v) if at all the petitioner has any grievance against the action of the power of attorney holder, it is open to her to take such action and claim such
reliefs as are available to her against the agent. But that cannot be a ground to annul the impugned order.
The learned Counsel cited the following decision in support of his submissions:
Mohamedaly Sarefaly and Co. Vs. Income Tax Officer, Central Circle III, Madras, and Others, .
I have considered the submissions made by the learned Counsel for the parties.
I think it is appropriate to deal with, in the first place the question whether this writ petition is maintainable having regard to the fact that the
petitioner filed earlier Writ Petition No. 5642 of 1994 challenging the very same order which is impugned in this writ petition was dismissed.
In order to appreciate the above question it is useful to reproduce the prayers made in both the writ petitions. The prayer in W.P. No. 5642 of
1994 reads:
...to issue a writ of certiorarified mandamus or any other appropriate writ, direction or order, to call for the records of the first respondent in his
impugned order No. AA/MDS/11(341)2/93-94, quash the order therein dated 25.2.1994 and further direct the first respondent to hear the
objections of the petitioner and decide the issue regarding acquisition of the property at Plot No. 49, Door No. 33, North Usman Road, T. Nagar,
Madras-600017, and pass such other order....
The prayer made in the present writ petition reads:
...issue a writ ofcertiorarified mandamus or any other appropriate writ or order, to call for the records of the first respondent in his proceedings in
No. AA/MDS/11(341)2/93-94, dated 25.2.1994 and quash the order dated 25.2.1994 and further direct the first respondent to grant the
reasonable opportunity to the petitioner and consider her objections with regard to the jurisdiction of the first respondent as well as the merits of
the case and pass such other order or orders as this Hon''ble court may deem fit....
The undisputed facts are:
In both the writ petitions the petitioner sought for quashing the impugned order No. AA/MDS/11(341)2/93-94, dated 25.2.1994. In both the writ
petitions the petitioner sought for direction to the first respondent to hear her objections. The petitioner executed power of attorney in favour of her
agent Devendra S. Pancholi under which besides various other matters the agent was authorised to sell the property in question. In this regard
reference is made by this Court in the order dated 30.11.1994 passed in W.P. No. 5642 of 1994.
It is not the requirement of law that Form No. 37-I should be signed by the transferor himself/herself alone. The agent in this case has signed
Form 37-I when the authority given to him as power of attorney was subsisting. There is also no prohibition for the power of attorney holder to
sign such a form. Under the general law, the power of attorney, by virtue of the authority given to him could sign Form No. 37-I. Section 288 of
the Act does not support the contention of the petitioner in this regard as it deals with an authorised representative contemplated under that section
and for the purpose. The said section does not take away the power of the power of attorney holder available to him under the general law. The
power of attorney of the petitioner submitted a letter dated 18.2.1994 stating that there was no objection to the department purchasing the
property in view of the fact that the transferee had backed out the transaction. The petitioner herself has stated in paragraph 14 of the affidavit of
the present writ petition that a sum of Rs. 38,00,000 was reasonable consideration for sale of the property.
In the earlier writ petition, neither liberty was sought nor it was reserved by the order of the court so as to enable the petitioner to file a fresh
writ petition challenging the very same impugned order. The grounds on which the petitioner is challenging the impugned order and seeking an
opportunity of hearing in the present writ petition were very well available to the petitioner which ought to have been urged. The only reason given
for not raising the grounds earlier was that copies of the documents were not available. But nothing prevented the petitioner from securing the
copies of the documents either from her agent or from the department as the case may be.
The impugned order contains elaborate reasons for reaching the conclusion to make a pre-emptive purchase of the property. The earlier writ
petition was dismissed oh the ground that the act of the power of attorney was binding on the petitioner, and that it was open to the petitioner to
take such action and seek for such reliefs as are available against her power of attorney.
The learned Counsel for the petitioner tried to take support from the decision in the case of T. Isac Trueman v. Lakshmipuram College Society
and Ors. AIR 1995 Mad. 360. That was a case in which there has been a clamp on the exercise of the otherwise legitimate right to manage and
administer the college, put by G.O.Ms. No. 180 on the petitioner. Such clamp continued for quite some time. There were change of
circumstances. There were few suits and petitions between the parties. Thereafter, after a period of eight years, second writ petition was filed
challenging the clamp imposed on the right to manage and administer the college. Under those circumstances the Division Bench of this Court held
that successive petitions for the highly prerogative writ of mandamus will not be allowed as a general principle, but the High Court will entertain the
second writ petition even after the refusal of the first, if facts support grant of such second petition where the factual warrant for issue of a writ of
mandamus was not present and made out at the time of disposal of the earlier petition, but such a warrant has been made out while considering the
second petition. That was also a case where the clamp on the exercise of the legitimate right to manage and administer the college was continuing
one. As such the cause of action for the petitioner to get out of the clamp recurred and continued. Thus the said decision does not help the
petitioner on the point.
The learned Counsel next placed reliance on Ideal Garden Complex (P) Limited, Salem v. Vijai Agencies, Salem 1995 T.L.N.J. 23. That was
a case where the advocate alone had made an endorsement on the plaint when the suit came up for trial to the effect that the suit is not pressed and
may be dismissed. In the appeal, the District Judge by his order dated 21.11.1991 remanded the suit to the trial court for fresh disposal according
to law in the light of the observations made in his Judgment referring to Order 23, Rule 1 and Order 23, Rule 3, C.P.C. This Court in C.M.A.
No.95 of 1992 considering the decisions of the Supreme Court was of the opinion that the judgment of the learned District Judge remanding the
matter to the trial court on the ground that the advocate alone could not sign the endorsement on the plaint and he had to obtain the signature of the
plaintiff also is well founded, and as such the judgment of the learned District Judge did not call for interference. In that view the appeal was
dismissed. Under Order 23, Rule 3, as it is now, lawful agreement or compromise must be in writing and signed by the parties. Hence, this case
does not advance the case of the petitioner any further on the point of the maintainability of the second writ petition inasmuch as in the case on
hand the petitioner has executed a power of attorney in favour of her agent giving him power to sell the property, and acting on that power of
attorney the petitioner has proceeded to sell the property and he has also filed Form 37-I signed by him on behalf of the petitioner.
The third decision strongly relied on by the learned Counsel for the petitioner is the case of Nand Kishore Vs. State of Punjab, . The facts of
the case were not in dispute. The appellant Nand Kishore joined service in the erstwhile Patiala State in May, 1941. On the formation of Pepsu
State he was taken as an Assistant with effect from September 1, 1956. On the merger of Pepsu with the State of Punjab, he was integrated as an
Assistant in the Punjab Civil Secretariat at Chandigarh. After completing 10 years qualifying service he was compulsorily retired on January 6,
1961 from the service applying Rule 5.32 (b) of the Punjab Civil Services Rules, Volume II. His representations to the Government and Memorial
to the Governor did not bring him any relief. Thereafter he moved the Punjab High Court in Writ Application No. 1061 of 1961 praying for
quashing the said order of January, 6, 1961 retiring him compulsorily. The writ petition was dismissed negativing the contentions of the petitioner
and noting that Rule 5.32 aforementioned clearly contemplated the existence of power in the Government to retire a permanent servant
compulsorily after 10 years of qualifying service. The appellant Nand Kishore filed a suit in the court of Senior Subordinate Judge, Patiala for
declaration that the order of compulsory retirement dated January 6, 1961 passed under Rule 5.32 after 10 years of qualifying service was invalid.
The suit was filed encouraged by the decision of the Supreme Court in the case of Moti Ram Deka and Ors. v. N.E. Frontier Railway and Ors.
AIR 1962 S.C. 600. Shortly after the institution of the suit in April, 1964 the Supreme Court in the case of Gurdev Singh Sidhu Vs. State of
Punjab and Another, applying the principles of Moti Ram Deka case, to a compulsory retirement case under the second proviso to Article 9.1 of
the Pepsu Service Regulations, held that the said proviso empowered the Government retaining an absolute right to retire any Government servant
after he had completed 10 years'' qualifying service without any reason. But the said right was not to be exercised by the Government except when
it was in public interest to dispense with further services of a Government servant.
The Supreme Court took the view that it was not permissible for a State while reserving to itself the power of compulsory retirement by
framing Rules prescribing a proper age of super annuation, to frame another one giving it the power to compulsorily retire a permanent government
servant at the end of ten year''s service. The aforementioned Rule 5.32 of the Punjab Civil Services Rule, Volume II was identical in the nature to
Article 9.1 of the Pepsu Regulations referred to above. Under the circumstances, in view of the said decisions, the suit of the appellant was
decreed declaring that his compulsory retirement was illegal. The State of Punjab took up the matter in first appeal before the High Court raising
only one point that the suit of the appellant was barred by principles of res judicata. The matter was placed before a Division Bench of Punjab and
Haryana High Court. The Division Bench referred the following question of law for decision by a Full Bench:
Whether the decision of the High Court declining to issue a writ of mandamus on the assumption that a statutory rule was valid, operates as res
judicata in a subsequent suit instituted after the statutory rule had been declared as unconstitutional by the Supreme Court of India?
The said question was answered in the affirmative by majority opinion. Thereafter the matter, went back to the Division Bench. The Division Bench
in the light of the opinion of the Full Bench allowed the appeal of the State. The appellant took up the matter to the Supreme Court in Civil Appeal
No. 632 of 1975. The Supreme Court under the circumstances, in paragraph 20 of the said judgment, held thus:
It thus seems to us that the view of the Full Bench of the High Court was erroneous on first principles. In the question referred to the Full Bench,
no assumption could be made that a statutory Rule was valid when the Court declined to issue a writ of mandamus, or its being treated as res
judicata for the purpose of the subsequent suit. Mathura Prasad''s case, did not merely stop at dealing with decision relating to the jurisdiction of
the court trying the earlier proceeding, but had further gone to say that the principles of constructive res judicata would not apply when the law has
since the earlier decision been altered by a competent authority. And in the context, this Court is a competent authority to alter the law when it
declares it to be unconstitutional. Alteration does not limit alone to change therein but is inclusive of the power of striking down. Thus even if we
were to decline the belated SLP of the appellant against the judgment and order of the High Court dated 5.2.1962 passed in Writ Application No.
1061 of 1962, the appellant would be entitled to succeed in having the impugned order of the High Court upset in Civil Appeal No. 632 of 1975,
for the suit of the appellant could not, in any event, be held to be barred by principles of res judicata.
That was a case where the suit was filed after the disposal of the writ petition on the basis of striking down the statutory provision holding it to be
unconstitutional, Under Article 141 of the Constitution of India, the law declared by the Supreme Court is of binding character and as commandful
as the law made by the legislative body.
In the case on hand, the situation is entirely different. There is no provision of law on the basis of which the impugned order was passed, is
declared as unconstitutional or invalid. The impugned order was passed on the facts and in the circumstances of the case. Neither there is any
change of law nor there are changes of material circumstances which were not available earlier. Hence this decision of the Supreme Court also
does not help the petitioner.
On the other hand the Division Bench decision in the case of Mohamedaly Sarefaly and Co. Vs. Income Tax Officer, Central Circle III,
Madras, and Others, , cited by the learned Counsel for the respondent is against the petitioner. That was a case where the petitioner''s writ petition
to restrain the first respondent from taking recovery proceedings pursuant to a notice u/s 226(3) of the Income Tax Act, 1961 was dismissed.
Thereafter second writ petition for the same relief was filed raising certain additional grounds which were available to the petitioner on the earlier
occasion, which were not taken in that writ petition. The Division Bench of this Court dismissed the second writ petition stating that the second writ
petition on the identical subject matter cannot be allowed.
In the light of what is stated above, I am of the opinion that the present writ petition is not maintainable in view of the dismissal of the earlier
Writ Petition No. 5642 of 1994 in which the very impugned order was challenged and sought to be quashed.
Having taken the view that the second writ petition filed by the petitioner is not maintainable, it is unnecessary to consider on merits of the other
contentions and grounds raised in the writ petition by the petitioner and resisted by the respondents. In this view I have not referred to the other
decisions cited by the learned Counsel for the parties on the other contentions relating to respective merits of the case.
In the result, for the reasons stated, the writ petition is liable to be dismissed, and accordingly it is dismissed. However, the dismissal of this writ
petition does not come in the way of the Central Board of Direct Taxes considering the representation said to have been made by the petitioner. It
is open to the petitioner to persuade the Central Board of Direct Taxes to consider her representation on merits if it is pending, and in accordance
with law if so desired and if permissible in law.