IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.48713 OF 2018 (GM-DRT) BETWEEN:
Lalith Kumar Ramani, S/o late Ratanchand, Flat No.306, Brindavan Mansion, Door No.100, Bull Temple Road, Near Ramakrishna Ashram, Basavanagudi, Gavipuram Extension, Bengaluru – 560 019.
… Petitioner (By Sri.Vivek Subba Reddy, Sr.Advocate a/w Sri.Akarsh S. Kanade, Advocate) AND:
1. The Recovery Officer-I, Debt Recovery Tribunal-II, Jeevan Mangal Building, No.4, Residency Road, Bengaluru – 560 025.
2. The State of Karnataka, Represented by The Superintendent of Police, Central Prison, Parappana Agrahara, Hosa Road, Electronic City, Bengaluru – 560 100.
… Respondents (By Sri.M.N.Kumar, CGC for R-1; Sri.V.Shivareddy, HCGP for R-2) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to declare that the warrant of arrest dated 10.10.2018 issued in TRC.No.187/2017 (DCP No.9471/2016) in O.A.NO.1074/2013 by the R-1, against the petitioner produced as Annexure-J and the consequential act of detaining the petitioner in to the Central Prison, Bengaluru, Karnataka as illegal and consequentially direct the R-2 to release the petitioner and etc.
This Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Sri.Vivek Subba Reddy, learned Senior Counsel along with Sri.Akarsh S. Kanade, learned counsel for the petitioner.
Sri.M.N.Kumar, learned Central Government Counsel for respondent No.1.
Sri.V.Shivareddy, learned High Court Government Pleader for respondent No.2.
The petition is admitted for hearing. With the consent of learned counsel on both sides, the same is heard finally.
2. In the petition, the petitioner has assailed the validity of the Warrant of Arrest dated 10.10.2018 issued in TRC.No.187/2017 (DCP No.9471/2016) in O.A.No.1074/2013 issued by Recovery Officer-I, Debts Recovery Tribunal-II, Bengaluru.
3. Learned Senior Counsel for the petitioner has raised a singular contention that before issuing impugned Warrant of Arrest, the provisions prescribed in Rules 73 and 74 contained in Schedule II of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’ for short), have not been complied. Therefore, the impugned Warrant of Arrest is procedurally ultra-vires.
4. On the other hand, learned counsel for respondent No.1 submitted that notice dated 21.11.2017 was issued to the petitioner asking him to appear before respondent No.1 in person on or before 11.12.2017. Therefore, the provisions of Rules 73 and 74 of Schedule II of the Act, have been complied with and the petitioner is a defaulter. Therefore, the impugned order is perfectly justified.
5. I have considered the submissions made by learned counsel for the parties and have perused the records. At this stage, it is pertinent to take note of Rule 73(1) of Schedule II of the Act, which reads as under:
“73. Notice to show cause-(1) No order for the arrest and detention in civil prison of a defaulter shall be made unless the Tax Recovery Officer has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause why he should not be committed to the civil prison, and unless the Tax Recovery Officer, for reasons recorded in writing, is satisfied-
(a) that the defaulter, with the object or effect of obstructing the execution of the certificate, has, after the drawing up of the certificate by the Tax Recovery Officer, dishonestly transferred, concealed, or removed any part of his property, or (b) that the defaulter has, or has had since the drawing up of the certificate by the Tax Recovery Officer the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.”
6. Thus, from a perusal of the aforesaid provisions, it is evident that no order for the arrest and detention in civil prison of a defaulter shall be made unless the Tax Recovery Officer has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause as to why he should not be committed to civil prison, unless the Tax Recovery Officer is satisfied for the reasons which are mentioned in clause (a) and (b) of sub-rule (1) of Rule 73 of Schedule II of the Act.
7. In the instant case, the impugned notice dated 21.11.2017 does not fulfill the requirements prescribed under Rule 73 (1) of Schedule II of the Act, in as much as, no specific show cause notice has been given to the petitioner asking him to show cause as to why he should not be detained in civil prison.
8. Therefore, the impugned order is procedurally ultra-vires. It is accordingly quashed and set aside. In the result, the petitioner shall be released forthwith from the custody. The petitioner shall deposit his Passport before the Recovery Officer-I, Debt Recovery Tribunal-II, Bengaluru as a condition precedent to his release from the jail. The petitioner shall not leave the Country without seeking leave of the Director General of Police, Bengaluru.
9. Needless to state that respondent No.1 shall be at liberty to proceed against the petitioner, if so advised, in accordance with law.
10. In view of the disposal of the main petition, pending interlocutory application does not survive for consideration. Hence, dismissed.
Accordingly, the writ petition is disposed of.
Sd/- JUDGE dn/-