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TMI Blog2015 (11) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... o be taken, hence, plaintiff had filed a writ petition in this Court being CWP No. 4767/1998 for return of the silver bars, and in this writ petition by an Order dated 08.10.1998, this Court directed the defendants to release the seized silver to the plaintiff on plaintiff making payment of the value of the seized silver. Plaintiff further pleads that accordingly he kept on making payments of different amounts in different installments to the defendants and consequently plaintiff got released the seized silver from the defendants. The dispute in the present suit pertains to payment of interest on the amounts of three pay orders of the value of Rs. 30,50,000/- deposited by the plaintiff with the defendants on 05.04.2000 but which were not encashed by the defendants and hence the principal amount of Rs. 30,50,000/- remained dormant in the suspense accounts of the banks without interest accruing thereon. Details of the three pay orders in question are stated in para 6 of the plaint. 2. Plaintiff states that he remained under an impression that these pay orders were encashed by the defendants to cover the payment of silver but plaintiff was shocked to know when he received a letter da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act reads as under:- "293. Bar of suits in civil courts.-No suit shall be brought in any civil court to set aside or modify any proceeding taken or order made under this Act, and no prosecution, suit or other proceeding shall lie against the Government or any officer of the Government for anything in good faith done or intended to be done under this Act." 6. In the case of Parmeshwari Devi Sultania (supra), considering this very provision, the Supreme Court has made relevant observations and laid down the following ratio:- "6. In view of the proceedings conducted under Section 132 of the Act and order having been passed under sub-section (5) of Section 132 thereof and seized assets including the gold ornaments, subject matter of the suit ordered to be retained, the Revenue objected to the maintainability of the suit and said, that it was clearly barred by Section 293 of the Act and a civil court had no jurisdiction to try such a suit under Section 9 of the CPC. Section 9 of the Code imparts jurisdiction on a civil court to try of suits of the civil nature excepting suit of which their cognizance is either expressly or impliedly barred. xxxxx xxxxx 11. In Raleigh In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the purview of Section 20 and that words in that section were wide enough to take within its sweep even erroneous orders of assessment and would be entitled to claim protection against the institution of a civil suit. The court then observed: "The jurisdiction of a civil court can be excluded even without an express provision. In every case, the question about the exclusion of the jurisdiction of civil courts either expressly or by necessary implication must be considered in the light of the words used in the statutory provision on which the plea is rested, the scheme of the relevant provisions, their object and their purpose." xxxxx xxxxx 16. Principles of law are, therefore, well settled where a civil court will not assume jurisdiction. In Dulhabhai etc. v. State of M.P.: (1968) 3 SCR 662, this Court laid 7 principles for the courts to see if the suit was barred under Section 9 of the Code or not. It is not necessary to set out all the 7 principles as we find that the present suit would be barred under the second principle laid by this Court which we reproduce as under: "(2) Where there is an express bar of the jurisdiction of the court, an examination of the sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff was well aware of the proceedings before the Income-tax Officer and she could have also filed objection to the order made by the Income-tax Officer under Section 132(5) of the Act to the Chief Commissioner or Commissioner under Section (11) thereof which remedy she did not avail. Considering the whole gravamen of the plaintiff in the suit and the law on the subject, we are of the opinion that the Subordinate Judge and the High Court were not correct in rejecting the contention of the Revenue and holding that the suit was not barred under Section 293 of the Act." (underlining added) 7. In the present case, it is seen that there is no dispute that what are the dues of the plaintiff towards the defendants that stood determined in terms of the Order dated 7.7.2003 passed by the Income Tax Settlement Commission, and which Settlement Commission was approached by the plaintiff for settlement of the disputes and determination of the entitlement of the defendants with respect to the amounts on account of tax pursuant to the search and seizure of the plaintiff's premises on 4.2.1995. Pursuant to the order of the Settlement Commission, the computation of income of the plaintiff was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .00 Excess amount paid by the Assessee: 4,39,91,900 - 90,67,264 Rs. 3,49,24,636.00 Interest U/s 244-A Rs.1,78,94,256.00 TOTAL REFUND DUE TO THE ASSESSEE Rs.5,28,18,892.00 The above amount is calculated as per the information available in the records and subject to the verification of the payment made by the assessee. (Sanjay Gosain) Income Tax Officer, Ward 23(2), N. Delhi NAME & ADDRESS OF THE ASSESSEE Sh. Vishwa Nath Khanna Prop. Foto Traders, S-105, G.K. II, New Delhi. Asstt. Year 1995-96 PAN No. AAIPK2689M Date of Order 27.09.04 ORDER UNDER SECTION 245D(6) OF THE I.T. ACT In this case, a search and seizure operation was carried on the premises of the assessee on 4.2.95. During the search, cash amounting to Rs. 49,86,500.00 and silver bars numbering 222 were seized. The assessee got the silver bars released from the department, as per the directions of the Hon'ble High Court, after depositing 4,39,91,900.00 with the department. The Hon'ble Settlement Commission vide its order dated 7.7.03 U/s 245D(4) of the Income Tax Act in Settlement Application No.S.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court one way or the other in spite of taking instructions from the plaintiff. Therefore, looking at the matter from any angle, if this issue was raised and the claim was denied by the ITO or the issue was not raised at all, the claim of the plaintiff definitely stood merged in the Order dated 20.9.2005/27.9.2004 being the claim of the plaintiff with respect to interest on the amount of Rs. 30,50,000/-. If the case of the plaintiff is that the Order dated 20.9.2005/27.9.2004 wrongly disallows the claim, then plaintiff had appropriate remedy to challenge the said order in an appeal but the plaintiff failed to do so. This suit in view of Section 293 of the Income Tax Act however is not the remedy and the only remedy of the plaintiff was to challenge the Order dated 20.9.2005/27.9.2004 in the appropriate forum and which the plaintiff failed to do. The ratio of the judgment of the Supreme Court in the case of Parmeshwari Devi Sultania (supra) clearly applies that with respect to any claim which is made in a civil suit against the Income Tax department which will result in modification of proceedings under the Income Tax Act, then the cognizance of such a civil suit cannot be taken by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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