RAJIV MALAYIL vs. ASSISTANT COMMISSIONER OF INCOME TAX

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WP(C)/35402/2018HC KeralaKLHC01081594201808 November 2018Author: HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU5 pages
AI SummaryRemanded

What did the High Court hold?

The High Court of Kerala, while acknowledging the petitioner's grievance and the Department's submission, did not delve into a detailed adjudication of the legal entitlement to the return of documents. Instead, the Court characterized the writ petition as 'innocuous' and the disposal as a 'ritual.' The Court expressed concern over the tendency of citizens to approach the Court for officials to discharge their duties. The Court directed that the authorities should consider the petitioner's representation and dispose of his grievance at the earliest. The operative direction was to consider the grievance, implying a positive action towards returning the documents if no statutory impediment exists. No specific issue was left undecided; rather, the Court opted for a procedural direction rather than a substantive ruling on the right to return.

What were the facts?

The petitioner, Rajiv Malayil, had his business searched under Section 132 of the Income Tax Act, and documents were seized from his residence. Following the completion of assessment, which resulted in a nil demand, the petitioner submitted representations (Exts.P7 and P8) to the Assistant Commissioner of Income Tax and the Principal Commissioner of Income Tax, respectively, seeking the return of the seized documents. As no positive response was received, the petitioner filed a writ petition before the High Court of Kerala. The Department's counsel suggested that the Court fix a timeframe for the authorities to release the documents, provided there were no statutory impediments.

What were the issues?

1. Whether the petitioner is entitled to the return of documents seized during a search under Section 132 of the Income Tax Act, when the assessment has been completed with a nil demand. Assessee's Contention: The petitioner argued that since the assessment concluded with no demand, the seized documents should be returned. The petitioner relied on the principle that once the purpose of seizure is fulfilled and no further proceedings are pending, the seized items should be returned. Revenue's Contention: The revenue, through its Standing Counsel, did not contest the petitioner's claim for the return of documents but rather suggested that the Court fix a time frame for the authorities to release the documents, contingent on the absence of any statutory impediments. No specific authorities or precedents were cited by either side.

Which sections of the Income-tax Act were involved?

Section 132

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY ,THE 08TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940 WP(C).No. 35402 of 2018 PETITIONER/S: RAJIV MALAYIL,AGED 57 YEARS 27/428,RANGEELA,OPPO.ZEALOTS VILLA,GOVINDAPURAM PO,CALICUT,673016. BY ADVS. SRI.ANIL D. NAIR SMT. ARYA ANIL SMT. NILOOFAR O. NIZAM SRI.SREEJITH R.NAIR RESPONDENT/S: 1 ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2,KOZHIKKODE- 673001. 2 THE PRINCIPLE COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, 5TH FLOOR, KANDAMKULATHY TOWERS, M.G.ROAD, COCHIN - 682 011. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- W.P.(C). No. 35402 of 2018

JUDGMENT The petitioner had his business searched under Section 132 of the Income Tax Act. In that process, the Income Tax authorities seized certain documents from his residence. Later, the assessment was completed, and the demand turned out to be nil. So the petitioner submitted the Exts.P7 and P8 representations to the second respondent, to get back the documents initially seized. Met with no positive reply, the petitioner has filed this writ petition.

2.

In response to the submissions made by the petitioner's counsel, the Standing Counsel for the Department submits that this Court may dispose of the writ petition fixing a time frame for the authorities to release the documents if there is no other statutory impediment for them to do so.

3.

The writ petition is innocuous, so must be—at least the suitor expects—the disposal. True. But in the name of adjudication what I am doing is a ritual. A distressed citizen comes to the Court, complaining that an official—a public servant—has not been discharging his duty. I may, perhaps, get influenced by the simple

-3- fact that I have an easy way of adjudication—and quick disposal, at that. So I order that so and so authority should consider the petitioner's representation and dispose it of. That is why I called it 'a ritual'. Easy disposal and a feather in my cap, for that seemingly gives me satisfaction as the number of cases the Court disposed of swells. But at what cost?

4.

This ritual, regrettably, clogs the system and almost chokes the judicial process of adjudication. Sadly, most of the writ petitions are of this nature. The officials—more often than not—do not act even on, as I put it, innocuous representations from the citizens. So the citizens compel themselves to spend money and approach the Court, and the Court then reminds the officials of their duty.

5.

I hope this tendency will stop. The whole administrative apparatus, including this Court and every institution in the organizational hierarchy of the Government, exists only for the singular purpose: to serve the citizens. And I am afraid most of the times we fail in our job. Agreed, we cannot tar everyone with the same brush. There are many diligent officials and a few not so -4- diligent; I hope it will make them think.

6.

Here, the petitioner has first sent the Ext.P7 notice and then the Ext.P8 reminder. At least after the petitioner's filing this writ petition, the official concerned could have acted with a sense of urgency—if not of remorse—that he could have done this earlier. But that is not to be. Now the Court reminds that the official concerned must consider the petitioner's representation. Thus nudged, the authorities will look into the petitioner's grievance. I hope this ritual will stop with our increased awareness that people expect us to serve. I dispose of the writ petition. The authorities will look into the petitioner's grievance—at the earliest. DAMA SESHADRI NAIDU JUDGE das

-5-

Appendix — schedule of exhibits
APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PANCHANAMA DATED 21/04/2016. EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER OF THE COMPANY FOR THE A.Y.2012-13. EXHIBIT P3 TRUE COPY OF THE ASSESSMENT ORDER OF THE PETITIONER FOR THE A.Y.2012-13. EXHIBIT P4 TRUE COPY OF THE ASSESSMENT ORDER OF THE PETITIONER FOR THE A.Y.2013-14. EXHIBIT P5 TRUE COPY OF THE ASSESSMENT ORDER OF THE PETITIONER FOR THE A.Y.2014-15. EXHIBIT P6 TRUE COPY OF THE ASSESSMENT ORDER OF THE PETITIONER FOR THE A.Y.2015-16. EXHIBIT P7 TRUE COPY OF THE REQUEST LETTER DATED 19/12/2016. EXHIBIT P8 TRUE COPY OF THE REQUEST LETTER DATED 06/02/2018.

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