TaxTMI 
TaxTMI 
2022 (11) TMI 1022
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....0.11.2021 of Smt. Priyanka Sharma (respondent no. 5), Deputy Director of Income Tax (Inv), Unit- 2(2), Guwahati addressed to the SHO, Gandhi Maidan Thana, Patna alleges inter alia that in course of search and seizure conducted on 5.10.2021 at 3rd floor, Khataruka Niwas, South Gandhi Maidan, Patna in the case of Smt. Sunil Khemka, Smt. Sunita Khemka and Smt. Shivani Khemka, order under section 132(3) of the Income Tax Act, 1961 was served by the Authorised Officer to the HDFC Bank, Exhibition Road Branch, Patna to put a stop operation on the Bank accounts, fixed deposits and Bank lockers of the assessee. It was stated that it was found that the assessee Smt. Sunita Khemka holds a Bank locker in the HDFC Bank, Exhibition Road Branch, Patna and hence a prohibitory order under section 132(3) of the Income Tax Act was imposed in the Bank locker no. 462 held in her name. It is further stated that it came to light that the restraint order imposed has been breached and violated and that Smt. Sunita Khemka operated the Bank locker no. 462 on 9.11.2021 at 11.53 a.m.. The said fact was validated by the CCTV footage and in the said operation of the locker Smt. Sunita Khemka was aided by the HD....
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....5 to the Bank contained the subject, "revocation of order under section 132(3) of the Income Tax Act 1961 in respect of Bank Accounts, Lockers, Fixed Deposits etc. - reg-" and in its reference mentioned about the office letter dated 5.10.2021 (Annexure-2). Thus it was submitted that since the heading/title of the letter dated 1.11.2021 (Annexure-3) referred to the earlier later dated 5.10.2021 and at the same time contained the subject as revocation of the order under section 132(3) of the IT Act 1961 in respect of Bank Accounts, Lockers, Fixed Deposits, at best it was a case of misreading of the letter by the Bank officials and no act on part of the Bank could be said to be intentional. No intention or motive could be attributed and at best it could be said to be a case of administrative lapse. There was no occasion for the respondent no. 5 to have used the the words revocation of of Lockers Fixed Deposits in the letter dated 1.12.2021. Reliance was placed on the judgment in the case of Sushil Sethi v. State of Arunachal Pradesh, (2020)3 SCC 240 and more particularly paragraph no. 6 to paragraph no. 8.2 thereof to submit that as has been held in paragraph 7.2, the same principle w....
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....ally while registering the FIR in the column of the accused has only named Smt. Sunita Khemka and "HDFC Bank, Exhibition Road Branch Ka staff". It was submitted that from the FIR besides violation of section 132(3) of the IT Act which is punishable under section 275A of the IT Act, 1961, the allegations levelled also make out a case under sections 406, 409, 420, 120B, 201, 34 besides other sections of the Indian Penal Code. Learned counsel for the respondent no. 5 in support of her contention relies on the judgment dated 30.5.2019 in Cr. Misc. Writ Petition No. 7303 of 2019 (Govind Enterprises vs. State of U.P. and 4 others) and judgment dated 3.8.1990 passed in Cr. Appeal No. 195 of 1987 (State of Maharashtra vs. Naayan Champalal Bajaj & ors). Thus it was submitted that there being no merit in the application the same be dismissed. Learned GP 4 appearing for the respondent nos. 1 to 4 submitted that the case was in early stage of investigation. On reading of the contents of the FIR, besides their being breach of the provisions of the IT Act, 1961, the contents of the written complaint filed by the respondent no. 5 clearly makes out a case under sections 406, 409, 201, 120B and ....
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....nce or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned....