IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 23769 of 2008(D) -------------------------- PETITIONER: ------------ UNIVERSAL EMPIRE EDUCATIONAL SOCIETY, 1ST FLOOR, MERCY ESTATE, M.G.ROAD, RAVIPURAM, COCHIN, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENTS: ------------- 1. THE CHIEF COMMISIONER OF INCOME TAX KERALA REGION, C.R.BUILDING, I.S.PRESS ROAD, COCHIN. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-I, ERNAKULAM. ADDL3. DEPUTY DIRECTOR OF INCOME TAX (EXEMPTIONS), KOCHI. (ADDL. R3 IS IMPLEADED AS PER ORDER DATED 12.8.2008) BY ADV. SRI.P.K.R.MENON,SR.COUNSEL,GOI(TAXES) FOR R1 & R2 SRI.GEORGE K. GEORGE, SC FOR IT FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN,J. ------------------------- W.P ( C) No. 23769 of 2008 -------------------------- Dated this the 28th August, 2008 J U D G M E N T The petitioner, a Society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955, is an assessee under the Income Tax Act,1961. On 11.6.2002, a search operation under Section 132 of the Income Tax Act was conducted in the premises of Universal Institute of Advanced Studies and Research Private Limited, an educational institution run by the petitioner society. In the search, many documents and files were seized. One among them was the original of sale deed dated 8.10.2001 registered as document No.3634 of 2001 of Sub Registrar's Office, Puthencruz, executed by Rev.Fr.Joseph Puthussery, a non resident Indian in favour of Universal Empire Educational Society. The document was, however, seized from the premises of Sri. Sudheer Gopi, one among the members of the petitioner society. Pursuant W.P ( C) No. 23769 of 2008 2 to the search conducted on 11.6.2002, proceedings were initiated against the petitioner society under Section 158- BC read with Section 158-BD and Section 143 (3) of the Income Tax Act,1961. By Exhibit-P2 order passed on 26.5.2006, the Deputy Commissioner of Income Tax, Central Circle-1, Ernakulam levied income tax and surcharge aggregating to Rs.10,50,368/- on the petitioner. The petitioner carried the matter in appeal. By Exhibit-P3 order passed on 25.9.2006, the Commissioner of Income Tax (Appeals)-1, Kochi set aside Exhibit-P2. The petitioner thereupon moved the second respondent who seized the documents to return the original of sale deed No.3634 of 2001. When that request was not attended to, this writ petition was filed for a direction to the respondents to return the said document. 2. The learned standing counsel appearing for the respondents has filed a statement incorporating the instructions received from the additional third respondent. It is stated that against Exhibit-P3, a Second Appeal has been filed before the Income Tax Appellate Tribunal and W.P ( C) No. 23769 of 2008 3 as the appeal is pending, the document cannot be released at this stage. 3. I have heard Sri.V.G.Arun, the learned counsel appearing for the petitioner and Sri.George K. George, the learned standing counsel appearing for the respondents. The fact that Exhibit-P2 order has been set aside in Exhibit-P3 is not in dispute. It is also not disputed that the sale deed in question is in custody of the respondents. The only ground put forward for not returning the document is that a Second Appeal filed by the Revenue from Exhibit-P3 is pending before the Income Tax Appellate Tribunal. The learned counsel for the petitioner submitted that the claim of the Revenue can only be for the tax, if any, payable by the petitioner and that even if Exhibit-P3 is set aside, it can only lead to restoration of Exhibit-P2. The learned counsel for the petitioner further submitted that the petitioner is prepared to furnish bank guarantee for the amount covered by Exhibit-P2 and that on such bank guarantee being furnished, the respondents may be directed to release the sale deed referred to in prayer (i) of the writ W.P ( C) No. 23769 of 2008 4 petition. Sri.George K.George, the learned standing counsel appearing for the respondents did not seriously dispute the said submission. Having heard the learned counsel appearing on either side, I am of the opinion that the writ petition can be disposed of with a direction to the respondents to release the original of the sale deed referred to in prayer (i) of the writ petition to the petitioner (after retaining a photostat copy for official purposes) on the petitioner furnishing bank guarantee for the sum of Rs.10,50,368/- to the satisfaction of the additional third respondent. This shall be done on the date on which the petitioner furnishes the bank guarantee. If Exhibit-P3 is sustained and the Second Appeal filed by the Revenue from Exhibit-P3 is dismissed, the respondents shall forthwith return the bank guarantee to the petitioner. (P.N.RAVINDRAN, JUDGE) ma W.P ( C) No. 23769 of 2008 5 W.P ( C) No. 23769 of 2008 6