TMI Blog1992 (9) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the appellant is that the remedy provided under section 132(11) of the Act is not a bar to maintenance of a writ petition. It is submitted that the said order has been passed without giving reasonable opportunity to the petitioner and that the notice has been issued only in respect of the investment of Rs. 50,000 whereas the amount of income determined is far in excess of that sum and thus the order is without jurisdiction. It has also been submitted that the Income-tax Officer has no jurisdiction to take into consideration the various factors and take the investment in respect of items which were not seized and that the order has been passed beyond 120 days of the seizure. Reliance has been placed on the judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been submitted that the Supreme Court in Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, AIR 1987 SC 2186, has held that the writ petition is maintainable and is not barred because of availability of alternative remedy as the authority had no power to review its order. Lastly, reliance has been placed on the judgment of the Karnataka High Court in Nenmal Shankarlal Parmer v. Asst. CIT [1992] 195 ITR 582, wherein for the exercise of powers under section 132(5), it was held that there must be a valid seizure and in the absence of such valid seizure the order passed under section 132(5) is liable to be quashed. Section 132(11) provides that if any person objects for any reason to an order made under sub-section (5), he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has held that unless the order of the Income-tax Officer is found to be not honest or a capricious and mala fide exercise of power, the court will not normally interfere with the summary orders. In Narayan R. Bandekar v. Second ITO [1989] 177 ITR 207 (Bom), it was held that the order passed under section 132(5) was an order of summary nature which does not conclude the rights of the petitioner because while passing the assessment order, it is always open to the petitioner to point out that the assets recovered in search do not represent undisclosed income and, secondly, the order passed under section 132(5) of the Act is appealable and if there is any violation in the exercise of the power, then the proper remedy is to lodge an appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letely open before the Commissioner and in respect of any objection raised by the assessee the said authority is bound to consider those objections looking to the facts and the law applicable thereon. In the present case, it is evident that a notice was issued under rule 112A on December 12, 1991, wherein the assessee was given an opportunity to explain the nature of possession and source of acquisition of the assets seized, namely, share applications amounting, to Rs. 50,000. Besides this, another notice was issued on January 8, 1992, wherein detailed information was required not only with regard to the assets but in respect of different matters mentioned in the said notice. The assessee has not produced the books of account and has conten ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
