Pawan Kumar Garg vs Chief Commissioner of Income Tax and Others

Rakesh Kumar Garg, J.—The petitioner is a practicing advocate at Dhuri and as per the averments made in the writ petition is having regular source of income from profession and rental income. He has filed his return of income at Malerkotla and in support of this contention, he has placed on record Annex. P-2, i.e., status of assessment of the petitioner for the assessment year 2001-02 upto assessment year 2007-08. It is further the case of the petitioner that a search was made on 12-10-2006 at the premises of one of his clients, namely, Ved Parkash and his brother''s son of Diwan Chand resident of house No. 2555, First Floor, Phase 1, Dugri, Ludhiana for whom he is rendering the profession services. After the search, the office of the petitioner was also visited and statement of the petitioner was recorded. The petitioner received a notice dated 18-10-2007 u/s 153A of the Income Tax Act (for short the "Act") requiring him to file the return of income for assessment years 2001-02, 2002-03, 2003-04, 2004-05, 2005-06 and 2006-07. Through this notice, the petitioner was also required to submit these returns in the office of the Assistant Commissioner, Circle-I, Ludhiana, on or before 16-11-2007. The petitioner filed reply to this notice vide Annex. P-3, dated 4-2-2008. Challenging the jurisdiction of respondent No. 2 and intiation of proceedings u/s 153A of the Income Tax Act against the petitioner on the ground that no search was initiated against him u/s 132 of Act and he has not received any notice for change of jurisdiction from Malerkotla to Ludhiana as envisaged u/s 127 of the Act.

Through his reply, the petitioner also requested respondent No. 2 to decide the issue of jurisdiction by passing a speaking order.

By way of this writ petition, the petitioner has challenged the issuance of notice to him u/s 153A of the Income Tax Act by respondent No. 2 on the ground that the petitioner is rendering professional services to his clients and therefore, in view of the various provisions of the Advocates Act, 1961, the action of the respondents is in violation of the fundamental rights of the petitioner as enshrined u/s 19(1)(g) of the Constitution of India. The petitioner has also challenged the action of the respondents for initiation of proceedings u/s 153A of the Act on the ground that it can be initiated only after taking action u/s 132 of the Act for the search and there is no such action against the petitioner. The petitioner has also challenged the jurisdiction of the respondent No. 2 to issue notice to him u/s 153A of the Act on the ground that jurisdiction to assess the petitioner is at Malerkotla and the provisions of Section 127 of the Act for change of jurisdiction have not been complied with in the present case.

We have heard the learned Counsel for the petitioner and find no force in the contention raised by Shri Pankaj Jain, advocate, learned Counsel for the petitioner.

The petitioner has placed a Panchnama, Annex. P-5 on the record and a perusal of the same would show that a search was conducted in the premises of the petitioner on the basis of warrant of authorization dated 11-10-2006 issued u/s 132 of the Act, in his case and his statement was also recorded. From Annex. P-4, i.e., communication dated 10-3-2008 issued by respondent No. 2 to the petitioner clearly shows that jurisdiction over the case of the petitioner has been assigned to him vide an order passed u/s 127 by the Commissioner, Ludhiana-II. Through this communication, it has also been made clear to the petitioner that the objection regarding issuance of notice u/s 153A of the Act, his attention has been drawn to the Panchnama, dated 12-10-2006 (Annex. P-5).

Keeping in view the above facts, we are not inclined to invoke our jurisdiction under Article 226 of the Constitution of India at this preliminary stage. The petitioner has only been given a notice u/s 153A of the Act, to which he has filed his reply and no order has so far been passed against him. Thus, the writ petition is dismissed being premature.