Y.R.Meena, J. - (1.) THESE two writ petitions are directed, one against the show-cause notice dated June 6, 1994, and another against the assessment orders dated March 22, 1996, and March 27, 1996, annexures-IX-A to IX-F. In Writ Petition No. 3494 of 1994, the petitioner has prayed that notice be quashed and the respondents be directed to return the FDRs to the petitioner and in Writ Petition No. 2879 of 1997, the petitioner has prayed that the aforesaid assessment orders be set aside. Since the issue of ownership of FDRs is common in both the writ petitions, therefore, both the writ petitions are being disposed of by this common order.
(2.) THE search and seizure operation was carried out by the officials and the Income-tax Department, on September 17/18, 1992, at the residence of Dr. Tomar. THE team of a raid party was headed by the DDI, Shri Dilip Shivpuri. In that search operation, jewellery of 12 tola gold and Rs. 7,164 in cash were found. In addition to jewellery of ladies of family and cash amount of Rs. 7,164, 3 FDRS in the name of one Shri Jayanti Lal Patel were also found during the search. THE petitioner explained that these FDRs are of Shri Jayanti Lal Patel, a friend of Dr. Tomar. When that search resulted in failure, one FIR No. 124 of 1992 has been lodged on September 23, 1992, against Dr. Tomar for the offences punishable under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988. In the FIR, the allegation against Dr. Tomar was that he possessed assets disproportionate to his income. THE assets consist of a plot and a house raised thereon. Dr. Tomar challenged that FIR and prayed that FIR No. 124 of 1992 be quashed. THE submission of Dr. Tomar before the High Court was that Shri Dilip Shivpuri, being a cousin of Dr. Deepak Shiv-puri, who happened to be a colleague and rival in the profession, Shri Dilip Shivpuri has malafidely acted and arranged the first income-tax raid. THEn in connivance with his friend, Shri Rohit Mahajan, who was the then Additional S.P. (RSIB), Jaipur City, a FIR has been lodged against Dr. Tomar. The High Court has allowed the petition of Dr. Tomar filed under Section 482 of the Criminal Procedure Code, quashed the FIR and passed strictures against Shri Dilip Shivpuri, the then DDI in the Income-tax Department. After the search by the Income-tax Department and material available on record, order under Section 132(5) of the income-tax Act, 1961 (hereinafter referred as the "Act"), has been passed and therein the view has been taken that Shri Jayanti Lal Patel is a owner of these 5 FDRs and not Dr. Tomar. Therefore, it was ordered that those FDRs be released. Thereafter, the Commissioner has issued show-cause notice to Dr. Tomar that why the amount of three FDRs Rs. 11,03,811 should not be added in the income of Dr. Tomar. In the notice, it is also stated that valuation report obtained by the ACD, Rajasthan, from the PWD valuing the investment of the house to the tune of Rs. 40,44,329 should not be taken for addition in the income of Dr. Tomar. Similarly, the valuation of the plot has been enhanced. In the notice, some investments are also referred to. According :to the Commissioner of Income-tax, they should also be scrutinised by the officer before passing 'the order under Section 132(5) of the Act and finally, it is stated that in view of these facts, why appropriate directions should not be given for modification/cancellation/ amendment in the order passed under Section 132(5) of the Act. The notice has been challenged on the ground that when the income-tax raid resulted in failure, as well as the FIR which has been lodged at the instance of the Additional S. P. is quashed by this court, Shri Dilip Shivpuri has managed to issue notice under Section 263 of the Act in spite of the fact that some strictures were passed while quashing the FIR and observing that no reliance can be placed on the valuation report of the PWD as against the value estimated by the value of the Income-tax Department and that the order of the High Court has been upheld by the apex court. In spite of that, in the notice under Section 263, the Commissioner has placed reliance on the valuation report which is found baseless by this court in its order dated October 15, 1993. When the proceedings under Section 263 were stayed on June 23, 1994, in spite of. that making base the facts given in the notice under Section 263, six assessment orders are passed, i.e., annexures-IX-A to IX-F dated March 22, 1996, and March 27, 1996. A contempt petition has also been filed by Shri Jayanti Lal Patel that in spite of stay of proceedings under Section 263 of the Act, the aforesaid assessment orders have been passed. Mr. Jain, learned counsel for the Department, has submitted that regular assessment orders under Section 143(3) have been passed after summary order under Section 132(5) of the Act and these assessment orders are not passed in pursuance of a notice under Section 263 of the Act. At present I am not concerned with the fact whether the aforesaid six assessment orders are passed in pursuance of the order under Section 132(5) or in pursuance of the notice under Section 263 of the Act. In these petitions, I am basically concerned whether the additions made are baseless or there is any justification to assess the income as referred to in these six assessment orders. In these six assessment orders, the assessment order for the year 1984-85 which was assessed about 13 years back, has been reopened and the income assessed at Rs. 1,69,174. In the assessment year 1990-91, the amount invested by B.S. Tomar HUF and Dr. Mrs. Tomar to the tune of Rs. 8,34,043 has been added in the income of Dr. B.S. Tomar. The investment and sources shown by Dr. B.S. Tomar out of Rs. 3,32,743, Rs. 1,60,753 are also treated income from unexplained source and added in the income of Dr. Tomar. The addition of Rs. 3,06,350 has also been made doubling the sale proceeds of two plots. Rs. 22,12,500 are added in the income of Dr. Tomar on the basis of some figures on a small piece of paper claimed to be found at the time of the search. Rs. 3,16,000 investment by B.S. Tomar HUF are also treated as the income of Dr. B.S. Tomar in the assessment year 1991-92,
(3.) IN the assessment year 1991-92, Rs. 99,680 which is the sale proceeds of gold ornaments, was received from his mother, Smt. Rajeshwari Devi. Smt. Rajeshwari Devi has shown this in her income-tax return. Dr. Tomar has also shown this in his wealth-tax returns, they are also treated as unexplained income and added in the income of Dr. Tomar. Rs. 11,38,011 investment in FDRs, by Shri Jayanti Lal Patel, was also added in the income of Dr. Tomar in the assessment year 1991-92. IN the assessment year 1993-94, Rs. 14,57,611 has been added on the basis of valuation of the house by the PWD, ignoring the valuation report of the Department and the valuation report of the approved value of the Department, in spite of the fact that this house was owned by three owners, namely, Dr. Tomar, Dr. Mrs. Tomar and B.S. Tomar, Hindu undivided family. In the assessment year 1993-94, Rs. 1,00,000 has been added on the ground of investment in building material. In the assessment year 1993-94, Rs. 1,31,800 was added in the income of B.S. Tomar Hindu undivided family, though Rs. 75,000 was loan received by a bank draft from one Sarojini Devi. Similarly, Rs. 8,78,609 has also been added as income from unexplained sources in the assessment order of B.S. Tomar Hindu undivided family, Rs. 3,18,439, a carried forward balance of earlier year, i.e., 1992-93 has been added in the assessment year 1993-94. In the case of Dr. Shobha Tomar, Rs. 42,263 a loan amount has been added as income from undisclosed sources. The entire amount shown as investment in the plot B-4, Govind Marg, Jaipur, by Dr. Mrs. Tomar and B.S. Tomar Hindu undivided family, has been treated as income of Dr. Tomar. Again out of total investment in plot, l/3rd amount in the hands of Dr. Mrs. Tomar and l/3rd amount in B.S. Tomar Hindu undivided family has been added. Thus, this is second addition of the same amount. These are the main additions, in all the six assessment orders though the loans taken in the different years are also added as income from unexplained sources, in spite of the fact that the assessees, Dr. Tomar and Dr. Mrs. Tomar and B.S. Tomar Hindu undivided family, have filed the affidavits of the money-lenders and even in some cases, the suit has been filed in the civil court for recovery of the amount and the court has passed a decree against Dr. Tomar for recovery of a loan. The genuineness of the loans are disbelieved and that amount added in the income of Dr. Tomar in different years. ;