V.K. Singhal, J. - (1.) THIS special appeal is directed against the judgment of the learned single judge dated April 13, 1992, wherein the writ petition filed by the petitioner was dismissed on the ground that the petitioner has a remedy against the order passed under Section 132(5) of the Income-tax Act, 1961, and that the said order has only been made in a summary manner and regular assessment proceedings are yet to take place.
(2.) THE submission of learned 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 the Gujarat High Court in the case of Maneklal Bhagwandas v. N.N. Sheth ITO [1974] 94 ITR 287 wherein it was held that non-compliance with Clause (4) of Rule 112A would render the order passed under Section 132(5) bad. The said clause related to providing reasonable notice to the person concerned to show cause as to why such material which the Income-tax Officer proposes to use should not be used against him. Reliance has also been placed on the case of K. A. Karim and Sons v. ITO [1984] 149 ITR 172 (Ker), wherein the material collected and the person examined were not confronted to the assessee and it was held that the procedure adopted by the Income-tax Officer is unfair, unjust and unreasonable and violates all canons of fair play and natural justice. Reliance has also been placed on the judgment in Mangilal Jain v. Collector of Customs [1982] 133 ITR 762 (Mad), where the order passed without notice to the person from whom money was seized was held to be in violation of the principles of natural justice and the order under Section 132(5) was quashed. Reliance has been placed on the judgment of Vindhya Metal Corporation v. CIT [1985] 156 ITR 233 (All), wherein the order which was wholly without jurisdiction and resulted in the infringement of the fundamental right of the petitioner and the conditions precedent for the exercise of power under Section 132A were found lacking, it was held that the alternative remedy is not a bar to entertaining the writ.
(3.) IT has further 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 Atonal Shanharlal Farmer v. Asst. CIT [1992] 195 1TR 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 may within 30 days of the date of such order, make an application to the Chief Commissioner or Commissioner stating therein the reasons for such objection and requesting for appropriate relief in the matter. ;