TMI Blog2018 (7) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the certificate and transfer of his property. He refuses to pay the arrears of amount of tax, therefore, a show cause notice was issued against him under Rule 73 of Second Schedule of the Income Tax Act. As per Rule 73 of the Second Schedule of the Income Tax Act, the Recovery Officer is having discretion to pass an order that detenue be detained in the custody and under the aforesaid powers the TRO has issued detention warrant against the detenue. The father of the petitioner has been arrested under the warrant of the Income Tax Department and after the arrest he would produce before him by the Police Authorities and he was sent for safe custody till the finalisation of the investigation and after that on 23/02/2018, the deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is said to have been detained in civil prison by the respondent No.3 in purported exercise of his jurisdiction under Rule 76 of Second Schedule of the Income Tax Act 1961. 2. The detenu has been engaged in cotton business at Khandwa, M.P. Allegedly because of heavy losses due to nonrecovery from the debtors in tooth of global recession, he could not have paid the income tax dues to the extent of a sum of ₹ 2 Crores 78 Lacs. However, the property of the detenu situated at Khasra No.864/12, Pandhana Road, Khandwa (M.P.) admeasuring 0.0405 hectares was attached by the Income Tax department. It is stated that at different times after attachment of the property efforts were made by the department for sale of the property, but the effor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se after appearance of the detenu. The father of the petitioner has been illegally arrested by the respondents for a period of long time curtailing his fundamental rights contained under Articles 21 and 22 of the Constitution of India and he has been detained in the district jail. 4. Per contra learned counsel for the respondent Nos. 1 to 3 submitted in their reply that the defaulter-Ashwin Kataria has legally detained in prison, as per Part V of the Second Schedule of the Income Tax Act, 1961. Proper procedure as prescribed in the Act has been followed and the reasons for detention in prison have also been duly recorded. ₹ 6,16,26, 393/- of tax is due on the defaulter and he has falsely claimed that he had no means to make payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and was served on the father of the petitioner in the year 1998. The second notice (Annexure R-1) was issued by the Tax Recovery Officer on 20.12.2017, which was served by substituting service when even after the service of notice, the father of the petitioner did not pay the arrears of the income tax then warrant of detention in civil prison has been issued, which has been served on 10.2.2018 and the father of the petitioner was remanded to the dis trict jail in default of payment of the income tax. 8. From the perusal of the record it appears that the detenue is residing at Akola and he neglect the service of notice, therefore, service of notice were made through affixure. Even after the service of notice, he deliberately remained no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorities and he was sent for safe custody till the finalisation of the investigation and after that on 23/02/2018, the detention order was passed, therefore, there was no need to produced him before the Magistrate, under the provision of Section 57 of the Cr.P.C.. Proceedings done by the TRO is under the statutory provisions and therefore, no violation has been made under Article 21 of the Constitution of India. 12. In the considered view of this Court, Article 21 of Constitution of India has no application in the matter because there is specific provisions have been made for recovery of tax dues. In the case of Col. Dr. B. Ramachandra Rao v. State of Orissa, reported as AIR 197 SC 2197 the apex Court, inter alia, observed that a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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