TaxTMI 
TaxTMI 
2023 (2) TMI 600
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....cle 226 of the Constitution of India asking for solitary relief that the charge-sheet dated 24.02.2021 (Annexure-P/2) issued to the petitioner by the respondents be quashed. 3. Mala fide is made sole basis for issuance of charge-sheet, which has given rise to this petition assailing such charge-sheet. It is averred in the petition that on the fulcrum of fallacious and fictitious allegations, the charges framed are entirely based upon appraisal report of Central Board of Direct Taxes (CBDT) in the context of one Shri Prateek Joshi, who was subjected to search-operation under Section 132 of the Income Tax Act, 1961 whereas the petitioner is a police officer and he was never subjected to any such search. In the search drive of the Income Tax Department against Shri Prateek Joshi, some loose papers containing alleged unaccounted cash transaction was found and only on the basis of such entries, an undue inference was drawn that the petitioner had handed over an amount of Rs.7.5 Crore to Shri Prateek Joshi and on that foundation, the respondents initiated disciplinary proceeding against the petitioner. A charge-sheet was issued on 24.02.2021 labeling a charge against that in the searc....
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....kept at his house', but the respondents after assuming without any foundation, issued the charge-sheet. As per learned senior counsel, the petitioner denied such scandalous hypothesis, based on surmises and conjectures because there was no evidence available that digit '750' denotes Rs.7.5 Crore and brought in 3 bags deposited by the petitioner to Shri Prateek Joshi. It is virtually impossible to prove such allegation, which is totally based on surmises and conjectures. To reinforce, he placed reliance on a decision of Supreme Court in re Common Cause (A Registered Society) v. Union of India reported in (2017) 77 taxmann.com 245 (SC) rendered in W.P. (Civil) No.505/2015 wherein it is held that "entries in loose papers/sheets are irrelevant and inadmissible as evidence. Such loose papers are not "book of account" and the entries therein are not sufficient to charge a person with liability. Even if books of account are regularly kept in the ordinary course of business, the entries therein shall not alone be sufficient evidence to charge any person with liability. It is incumbent upon the person relying upon those entries to prove that they are in accordance with facts". Moreso, Shri ....
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....found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter." (emphasis supplied) 7. According to Shri Nema, the Supreme Court in re Union Bank of India v. Biswanath Bhattacharjee in Civil appeal No.8258/2009 has considered the scope of judicial interference in disciplinary proceeding and came to observe as under:- "17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles....." 8. Shri Nema further submitted that the charges cannot be based upon assumption and suspicions. To reinforce, he relied upon a decision in re Paresh Chandas Datta v. Collector of ....
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....order, the entries which were found basis of charge-sheet issued to the petitioner showing that Rs.7.5 Crore paid by him, has not been considered as income of Shri Prateek Joshi. Even in questionnaire, a specific query was asked by the Income Tax Department to the petitioner in respect of the receipt in which respective entry relating to charge-sheet of the petitioner and the petitioner refused to identify the name i.e. A.Mishra written in loose-sheet. The respective question asked to and answered by the petitioner are quoted hereinbelow:- Q19 On perusal of Annexure A-1 and A-3, there exist receipt and payment in cash from various entities/parties such as J Arora (Som Arora), Jagpin (Jagdish Agrawal), RKM, Nitin, Offshore, Vindhyachal, GG, A Mishra, Chandresh, Taat, Wonder/wonder cement, LC, DVS, SSV, Aditya Tripathi, Dr. CS, NR, Sanjeev Singh MLA, Tribal MLA. Please explain in details the identity of these persons/entities and the nature of transactions undertaken by you with these entities/persons. A19 To reiterate my statement as given in response to Q9, I have received/paid cash from all these entities/parties on instruction of Ashwin Sharma. Cash was received in of....
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....re being any supportive evidence and this fact is also material for the reason that in the search-drive conducted against Shri Prateek Joshi, assessment has been made but there was no reference of said entry in the said assessment. 11. In contrast, Shri Kekre, learned Government Advocate opposed the submissions made on behalf of the petitioner and submitted that in the imputation of charge and the statement appended with the charge-sheet, it is specified that the petitioner has handed over Rs.7.5 Crore in cash contained in three bags to Shri Prateek Joshi and that imputation was essentially an elaborate interpretation of said loose paper entries. He submitted that at this stage quashing the charge-sheet by this Court while exercising the power under Article 226 of the Constitution of India would not be proper. Making referral to the return submitted by the respondents and stand taken therein, only because scope of interference in the matter of disciplinary proceeding exercising jurisdiction under Article 226 of the Constitution of India has been discussed and that the charge can only be ascertained to be correct or not when enquiry is conducted and material is placed before the ....