TMI Blog2009 (4) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. JUDGMENT F.I. REBELLO, J. - By an order under Section 226(3)(vi) and Section 226(3)(x) of the Income Tax Act, 1961 the Tax Recovery Officer 16(1) held that the petitioners and M/s.Subhash Arora Investment Co. P. Ltd. owed a debt to Shri Amit Jhaveri and in view of that held that the money attached from the bank account of M/s.Molly Trading Co. Pvt. Ltd., cannot be termed as wrong and hence the amount cannot be refunded. A notice was issued to the assessee company on 18 th July, 2007 under Section 226(3) directing to pay a sum of Rs.4,15,54,248/- as due of Shri Amit Jhaveri on account of Income Tax. A similar notice was issued to HDFC Bank directing the bank to pay the amount due and/or held by them on account of M/s. Molly T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion that Subhash Arora Investment Pvt. Ltd., and another had filed Writ Petition bearing No.1456 of 2008 challenging the notice and summons issued to petitioner No.1 and sister concern under Section 226(3) of the IT Act and the order dated 23 rd November, 2007 whereby the Tax Recovery Officer had declined to lift the attachment levied on the petitioners, bankers and its depository participants or business associates. After considering the contentions the Tribunal noted that Amit Jhaveri had taken loan and Overdraft facility from Bank of Bank of Baroda and that proceedings had been initiated by the Bank against the said Shri Amit Jhaveri. In those proceedings in the year 1999 it was agreed that the petitioner will pay Rs.1.70 crores on o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... met. M/s. Molly Trading Private Limited has also pledged the shares of HCL with Jhaveri. Apart from that, there are atleast two promissory notes dated 5 th May, 1993 and 8 th April, 1993 in the sum of Rs.25.00 lakhs and Rs.50.00 lakhs wherein M/s. Molly Trading Company Pvt. Ltd., is the guarantor for the money advanced by Jhaveri to M/s. Subhash Arora Investments (I) Pvt. Ltd. Neither in the affidavit filed before the Tax Recovery Officer nor in the petition has the petitioner disclosed these aspects. 5. It is, therefore, clear from the pleadings and documents on record that the petitioner is a guarantor for the loan taken by Shri Subhash Arora on behalf of the M/s. Subhash Arora Investments (I) Pvt. Ltd., The amount is crystalized an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of extra ordinary jurisdiction. Both on merits as also on account of suppression of material facts (that they were guarantors) in our opinion this would not be a fit case to exercise our extra ordinary jurisdiction. 9. Learned Counsel has sought to draw our attention to the judgment of the Madhya Pradesh High Court in New Amir Iron Works and Anr. vs. Union of India Ors., 252 ITR 663 (M.P.). The M.P. High Court proceeded on the footing that it was for the Recovery Officer to show that the affidavit was false and ought to have afforded sufficient opportunity to the assessee. We are really not concerned with the ratio of that judgment for the reasons set out in the order. Even otherwise from the facts on record before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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