Between vs And on 18 March, 2026

    0
    18
    ADVERTISEMENT

    Andhra Pradesh High Court – Amravati

    Between vs And on 18 March, 2026

                   HIGH COURT OF ANDHRA PRADESH
                                       ****
                        WRIT PETITION No. 841 of 2026
    
    Between:
    Koduru Picheswara Rao
                                                                .....PETITIONER
    AND
    Union of India, Rep. by its Secretary,
    Ministry of Finance, Department of Revenue,
    North Block, New Delhi and 6 others
                                                             .....RESPONDENTS
    
    DATE OF JUDGMENT RESERVED                     :    27.02.2026
    DATE OF JUDGMENT PRONOUNCED                   :    18.03.2026
    DATE OF JUDGMENT UPLOADED                     :    18.03.2026
    
    SUBMITTED FOR APPROVAL:
    
            THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
                                &
            THE HON'BLE SRI JUSTICE BALAJI MEDAMALLI
    
    1.   Whether Reporters of Local newspapers may           Yes/No
         be allowed to see the Judgments?
    
    2.   Whether the copies of judgment may be               Yes/No
         marked to Law Reporters/Journals
    
    3.   Whether Your Lordships wish to see the fair         Yes/No
         copy of the Judgment?
    
    
                                                      _______________________
                                                       RAVI NATH TILHARI, J
    
    
                                                      ____________________
                                                       BALAJI MEDAMALLI, J
                                                                                 RNT, J & BM, J
                                              2                               WP No.841 of 2026
    
    
    
    
               * THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
                                    &
                THE HON'BLE SRI JUSTICE BALAJI MEDAMALLI
    
                          + WRIT PETITION No. 841 of 2026
    
                                       % 18.03.2026
    Between:
    Koduru Picheswara Rao
                                                                          .....PETITIONER
    AND
    Union of India, Rep. by its Secretary,
    Ministry of Finance, Department of Revenue,
    North Block, New Delhi and 6 others
                                                                        .....RESPONDENTS
    
    
    ! Counsel for the Petitioner        : Sri K. S. Murthy, Senior Counsel,
                                          Assisted by Sri K. Guru Raj
    
      Counsel for the Respondents 1 to 5: Sri Challa Dhanunjay, Asst.Solicitor General
                                          Sri Y. N. Vivekananda, Standing Counsel
    
      Counsel for respondent No.6       : Sri Praveen Kumar Reddy, SC for Income Tax
    
      Counsel for respondent No.7       : Sri Anup Koushik Karavadi, SC for Income Tax
    
    < Gist :
    
    > Head Note:
    
    ? Cases Referred:
    
       1. 2023 SCC OnLine SC 1244
       2. 1994 SCC (L&S) 31
       3. 1983 SCC OnLine Bom 163
       4. 2018 SCC OnLine Del 10212
       5. 2024 SCC OnLine Gau 852
       6. 2022 SCC OnLine SC 872
       7. 2017 SCC OnLine SC 1251
       8. (2005) 8 SCC 760
       9. AIR 1964 SC 72
       10. (1974) 4 SCC 3
       11. (2007) 9 SCC 768
       12. (2023) 20 SCC 747
                                                                        RNT, J & BM, J
                                           3                         WP No.841 of 2026
    
    
    
    
            THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
                                &
            THE HON'BLE SRI JUSTICE BALAJI MEDAMALLI
    
                      WRIT PETITION No. 841 of 2026
    
    JUDGMENT:

    (per Hon’ble Sri Justice Ravi Nath Tilhari)

    Heard Sri K. S. Murthy, learned Senior Counsel, assisted by Sri K. Guru

    SPONSORED

    Raj, learned counsel for the petitioner and Sri Challa Dhanunjay, learned

    Assistant Solicitor General of India and Sri Y. N. Vivekananda, learned standing

    counsel appearing for respondent Nos.1 to 5, Sri Praveen Kumar Reddy,

    learned standing counsel for Income Tax, appearing for respondent No.6 and

    Sri Anup Koushik Karavadi, learned standing counsel for Income Tax, appearing

    for respondent No.7.

    2. The present writ petition has been filed under Article 226 of the

    Constitution of India, challenging the summons to the petitioner/assessee under

    Section 131 (1A) of the Income Tax Act, 1961 (in short ‘IT Act‘), dated

    14.11.2025 issued by the 5th respondent-the Income Tax Officer (Investigation),

    Income Tax Department, Vijayawada.

    3. By the said summons, the petitioner has been directed to give

    evidence and / or to produce either personally or through an authorized

    representative the books of account or other documents as specified in the said

    summons, which are reproduced herein below, on 18.11.2025 and in case of

    intentional omission to attend and give evidence or produce the books of
    RNT, J & BM, J
    4 WP No.841 of 2026

    account or documents, to impose the penalty under Section 272 A (1) (c) of the

    IT Act.

    “a) Nature of activity and sources for income.

    b) Books of accounts for the period from 01.04.2019 to till date.

    c) Statement of all the bank accounts in your name for the period from
    01.04.2019 to till date.

    d) Details of movable & immovable properties in your name along with
    sources for investments,

    e) Details of the firms/companies wherein you are one of the
    partners/directors along with PAN & Address of the entity.”

    4. The petitioner submitted response dated 17.11.2025 requesting to

    provide clarity on the point; (1) Reason for issuance of notice, and (2) Scope of

    Investigation. Under the first head, the petitioner asked for the clarification for

    identifying and furnishing the most relevant and pertinent information and

    under the second head, the petitioner wanted to know the specific assessment

    year or multiple years to which the summons / notice related, as also under the

    specific income head, transaction or matter of concern. The petitioner also

    requested for additionally 15 days time from the date of the said reply, followed

    by another reply dated 27.11.2025 requesting further 15 days time. The

    petitioner submitted the reply to the Income Tax Officer (Investigation), dated

    27.11.2025 and as mentioned therein, submitting the copies of Income Tax

    Returns for the period 01.04.2019 to 31.03.2025 (15 attachments). The

    petitioner then received response from the Income Tax Officer (Investigation)

    informing that the petitioner did not submit the requisite information, books of

    account for the period from FY 2019-20, copy of all the bank accounts in the
    RNT, J & BM, J
    5 WP No.841 of 2026

    petitioner’s name from 01.04.2019 to that date. On 02.12.2025 the petitioner

    again requested the Income Tax Officer (Investigation) for clarification with

    respect to the details i.e., the specific reasons for issuance of the summons; the

    precise scope of investigation, including the assessment years and matters

    under examination; whether any particular format, structure or classification of

    information was mandated and the preferred mode of submission (physical /

    digital / any portal-based upload), mentioning that those details were essential

    to ensure that the information furnished by the petitioner was complete,

    relevant and useful for the purpose of the investigation.

    5. The Income Tax Officer (Investigation), in response, sent reply dated

    16.12.2025, and clarified that the summons were issued by the Investigating

    Officer in exercise of powers conferred under Section 131 (1A) of the IT Act for

    the purpose of inquiry / investigation into the matters relating to possible tax

    evasion and that the said provision conferred to statutory authority, upon the

    investigation wing, to call for information and enforce attendance during the

    course of investigation.

    6. The Income Tax Officer (Investigation) further clarified that the details

    of reasons, source of information, line of inquiry and scope of ongoing

    investigation were confidential in nature and were not required to be disclosed

    to the assessee or any other person while the investigation was in progress.

    Even under the Right to Information Act, vide Section 8 (1) (h) the

    Investigation Directorate of Income Tax was exempted to disclose any

    information relating to ongoing investigation and the disclosure of any such
    RNT, J & BM, J
    6 WP No.841 of 2026

    information at that stage would defeat the very purpose of investigation and

    might prejudice the proceedings. It was further clarified that the scope,

    methodology and source of investigation fell exclusively within the domain of

    the investigation Directorate and were governed by internal procedures and

    confidentiality norms. The assessee was legally bound to comply with the

    summons by furnishing the information / documents and by attending as

    directed. By the said reply dated 16.12.2025, the petitioner / assessee was

    again requested to comply with the summons under Section 131 (1A) of the IT

    Act and submit the requisite information either in physical form or through

    electronic mode. It was reiterated that non-compliance should attract penal

    consequences under the relevant provisions of the IT Act.

    7. The 4th respondent-Deputy Commissioner of Income Tax has filed the

    counter affidavit and has denied the allegations against him that he threatened

    the petitioner’s statutory auditor to settle the disputes. He has submitted that

    the 4th respondent has no role to play in issuance of summons. He has also

    submitted that the 4th respondent is a jurisdictional assessing officer and is

    nowhere linked to the investigation Directorate. The investigation being taken

    up by the 5th respondent is independent and confidential and the 4th respondent

    is not in a position either to have any knowledge of the petition or the line of

    investigation being carried out. He has absolutely no role to play.

    8. The 6th respondent, impleaded by name i.e., 3rd respondent by

    designation, the Principal Chief Commissioner of Income Tax), has filed counter

    affidavit. He has not disputed the relationship that the 1st defendant in the suit
    RNT, J & BM, J
    7 WP No.841 of 2026

    O.S.No.608 of 2025 is the brother of his daughter’s father-in-law, but has

    submitted that he is not aware of any civil litigation. He is also not aware about

    the notices issued to the petitioner and has denied the other allegations made

    against him by the petitioner. He has specified that he has no role to play in

    the proceedings initiated against the petitioner and that the 6th respondent has

    unnecessarily dragged him into the matter just to scuttle the process initiated

    by the official respondents under the Income Tax Act.

    9. The 5th respondent- Income Tax Officer (Investigation), also

    impleaded by name, as 7th respondent, has filed his counter affidavits. Inter alia

    it has been submitted that the pleadings of the writ petition do not disclose any

    personal act, excess of jurisdiction, abuse of authority or conduct beyond the

    scope of statutory powers that would justify the impleadment of his name. The

    allegations against the 7th respondent cannot be sustained in the absence of

    any foundational facts. He proceeded as per the standard operating procedure,

    TEP was assigned to him by the competent authority and the summon was

    issued to conduct the enquiries after obtaining the permission to issue

    summons. He also deposed that the petitioner submitted copy of

    acknowledgment of Income Tax Returns for FY 2019-20 to 2024-25 via e-mail

    dated 27.11.2025 and the same were duly recorded. He submitted that request

    of the investigating officer for submission of the documents is part of enquiry as

    it pertains to the verification of declared income against the assets, within the

    scope of Section 131 (1A) of IT Act and so, the allegation of misuse of statutory

    powers, the arbitrariness in issuance of the summons is baseless. The 7th
    RNT, J & BM, J
    8 WP No.841 of 2026

    respondent submitted that he was not aware of regarding any property dispute

    between the petitioner and the defendants in the suit and any such dispute has

    no relevance or connection for the issuance of summons which were issued as

    per the procedure under the Income Tax Act.

    10. The petitioner filed replies to the counters of the respondents 4, 5, 6

    & 7, reiterating the contents of the writ petition.

    11. The challenge to the summons / notice under Section 131 (1A) of

    the Income Tax Act dated 14.11.2025 is mainly on the ground of mala fide.

    12. Sri K. S. Murthy, learned senior counsel, advanced the arguments

    before us that one O.S.No.608 of 2025 arising out of the dispute relating to the

    property situated at Vijayawada is pending in the Court of the Principal Civil

    Judge (Junior Division), Vijayawada and in the said suit in I.A.No.286 of 2025

    filed under Order 39 Rules 1 & 2 CPC, the learned trial Court has granted ad

    interim temporary injunction on 22.04.2025 restraining the defendants in the

    suit, their men etc., from interfering with the peaceful possession and use of

    the schedule premises i.e., the petition schedule property, except by due

    process of law, while directing the plaintiffs therein to comply with the

    provisions of Order 39 Rule 3A of CPC.

    13. His further argument is that the defendants in O.S.No.608 of 2025,

    namely, Atluri Venkata Satya Vara Prasad and Atluri Dyhan are close relatives of

    the present 3rd respondent-the Principal Chief Commissioner of Income Tax,

    Andhra Pradesh Telangana, Hyderabad, a Senior Officer in the Income Tax

    Department. The relationship with the 1st defendant in the suit Satya Vara
    RNT, J & BM, J
    9 WP No.841 of 2026

    Prasad, stated is that, the 1st defendant’s brother’s son is married to the

    daughter of the 3rd respondent. The 3rd respondent is also impleaded in the

    writ petition by name as 6th respondent.

    14. The petitioner’s further case as also the argument of learned counsel

    for the petitioner is that the 4th respondent, the Deputy Commissioner of

    Income Tax (Circle-I), acting in concert with the private parties, contacted the

    petitioner’s statutory auditor on multiple occasions to prevail upon the

    petitioner to settle the civil dispute, and if the dispute was not settled, the

    petitioner would be subjected to serious consequences through the Income Tax

    Department. The petitioner’s auditor informed the petitioner the same. The

    allegation is that the respondents misusing their official capacity are trying to

    gain undue advantage over the petitioner by issuance of summons/notice under

    Section 131 (1A) of the IT Act in view of O.S.No.608 of 2025 to settle the

    matter.

    15. Sri K. S. Murthy, learned Senior Counsel for the petitioner during

    arguments also raised the point of lack of jurisdiction in the authority in issuing

    the impugned summons. In this regard, he submitted that the Income Tax

    Officer (Investigation) is not competent authority to issue the summons under

    Section 131 (1A) of IT Act, as he is not the authorized officer.

    16. On the aforesaid grounds, learned counsel for the petitioner

    submitted that the summons deserved to be quashed and no proceedings

    pursuant thereto could be carried forward any further. He submitted that the
    RNT, J & BM, J
    10 WP No.841 of 2026

    issuance of the summons is vitiated for colorable exercise of power by the

    statutory authorities.

    17. Sri K. S. Murthy, learned senior counsel placed reliance in the

    following judgments:

    1) Pankaj Bansal v. Union of India1

    2) Naseem Bano (Smt) v. State of U.P2

    3) Ishverlal J.Naik v. Sri S. C. Arya3

    4) Skyview Consultants Pvt. Ltd. v. Income Tax Officer Ward
    23(4), New Delhi4

    5) Pawan Kumar Garg v. Union of India5

    18. Sri Challa Dhanunjay, learned Assistant Solicitor General submitted

    that the respondents have filed counter affidavit and in paragraph – 4 of the

    counter affidavit of the 5th respondent, it has clearly been mentioned that an

    anonymous Tax Evasion Petition (TEP) against the petitnioer and his family

    members was received in the office of the Principal Director of Income Tax

    (Investigation), Hyderabad on 12.11.2025 and as per the Standard Operating

    Procedure (SOP) in F.No.RNo.291/21/2013-Dir (Inv.IV)/1193 dated 23.09.2016,

    a Unique Identification Number (UIN) was allotted by the Principal Director of

    Income Tax (Investigation) for management of Tax Evasion Petitions under the

    Income Tax Business Applications (ITBA) issued by the Central Board of Direct

    1
    2023 SCC OnLine SC 1244
    2
    1994 SCC (L&S) 31
    3
    1983 SCC OnLine Bom 163
    4
    2018 SCC OnLine Del 10212
    5
    2024 SCC OnLine Gau 852
    RNT, J & BM, J
    11 WP No.841 of 2026

    Taxes, a Unique Identification Number was allotted to the TEP by uploading the

    same into the pending online work list on ITBA (Income Tax Business

    Application) module of Income Tax Department. Subsequently, the said TEP

    was assigned online to the concerned jurisdictional Investigation Unit Head, i.e.,

    the Joint Director of Income Tax (Investigation), Unit-IV, Vijayawada who in

    turn had assigned the same to the Income Tax Officer (Investigation), Unit-IV,

    Vijayawada online through ITBA module of the Department for conducting

    necessary enquiries and for submission of report. He submitted that soon after

    online allotment of the TEP in the pending work list of Income Tax Officer

    (Investigation), Unit-IV, Vijayawada, the Investigating Officer (IO) after taking

    necessary due diligence, obtained permission to issue summons under Section

    131 (1A) of IT Act from the unit head on 14.11.2025 and accordingly issued

    summons under Section 131 (1A), to all the concerned persons. He submitted

    that the summons issued had clearly specified the requirement for production

    of books of account, bank statements, and details of properties / investments

    from 01.04.2019 onwards, proportionate to the scope of inquiry as verification

    of escapement of income from AY 2020-21 to AY 2025-26 as per the provisions

    of the Income Tax Act. He submitted that the disclosure of detailed reasons at

    the summons stage was not mandated by law or by the procedure laid down by

    the SOP.

    19. Sri Challa Dhanunjay, learned Assistant Solicitor General, submitted

    that so far as the objection with respect to the jurisdiction of the Income Tax

    Officer (Investigation) is concerned, that he is not authorized officer to issue
    RNT, J & BM, J
    12 WP No.841 of 2026

    summons under Section 131 (1A) of IT Act, any such objection was never taken

    in the petitioner’s reply dated 17.11.2025, 27.11.2025 and 02.12.2025. He

    further submitted that any such objection has also not been taken in the writ

    petition. The challenge as per the contents in the writ petition is not on the

    ground of alleged want of jurisdiction in the authority to issue the summons but

    it has been orally argued that he is not authorized under Section 131 (1A) of IT

    Act, for the first time during arguments, though the procedure was followed in

    issuing the summons.

    20. Sri Challa Dhanunjay, learned Assistant Solicitor General, further

    submitted that the place of mala fide and colourable exercise of power if

    unsustainable and is not established. The same is being raised without any

    factual foundation and for the first time in the writ petition without making any

    such averment in the petitioner’s reply submitted before the Income Tax

    Authorities. The same is afterthought and only for the purposes of the present

    writ petition.

    21. Sri Y. N. Vivekananda and Sri Praveen Kumar Reddy, learned

    standing counsels for the Income Tax have adopted the submissions advanced

    by the learned Additional Solicitor General.

    22. Learned counsel for the respondents placed reliance in the following

    judgments:

    1) Principal Director of Income Tax (Investigation) v. Laljibhai

    Kanjibhai Mandalia6.

    6

    2022 SCC OnLine SC 872
    RNT, J & BM, J
    13 WP No.841 of 2026

    2) N. K. Jewellers v. Commissioner of Income Tax, New Delhi7.

    23. We have considered the aforesaid submissions and perused the

    material on record and gone through the relevant provisions of the Income Tax

    Act and the judgments cited from both the sides.

    24. So far as the submission of mala fide is concerned, we are of the

    view from the material on record, and there is no dispute on the factual aspect

    that in O.S.No.608 of 2025, none of the present respondents are party in the

    suit, neither by designation nor by name. Even the present petitioner is not a

    party, which is said to have been filed by the son-in-law of the petitioner.

    Further, any such averment of mala fide or with respect to the suit, was not

    even taken in the responses filed by the petitioner to the notice/summons. The

    said plea is being raised for the first time in the writ petition. Though the

    learned counsel for the petitioner laid much emphasis on the statement of the

    petitioner’s Chartered Accountant, annexed to the writ petition (Annexure

    No.P8), but the said alleged statement/affidavit itself is dated 27.11.2025 i.e.,

    much after the date of notice under Section 131 (1A). The affidavit of the

    Chartered Accountant (P8) is a notarized affidavit and is not addressed to any

    one. It is not evident from the pleadings of the writ petition, in what

    proceedings the same was filed or before which authority. Learned Assistant

    Solicitor General submitted that the person named in the said affidavit is not

    the Income Tax Officer (Investigation), and that the contents thereof are only

    after thought and had been created only for the purposes of the present writ

    7
    2017 SCC OnLine SC 1251
    RNT, J & BM, J
    14 WP No.841 of 2026

    petition so as to challenge the summons/notice and in an effort to make out a

    plea of mala fide. Learned Assistant Solicitor General submitted that Mr. Prem

    Kumar as mentioned in the said affidavit is not a party in the writ petition nor in

    the suit. Further, there is no mention of such affidavit or the alleged incident in

    the petitioner’s reply filed before the income tax authorities. With respect to

    the petitioner’s letter raising the grievance as per the affidavit of petitioner’s

    Chartered Accountant against the Deputy Commissioner of Income Tax to the

    Chairperson of Central Board of Direct Taxes, New Delhi, the material filed with

    the writ petition shows that the said letter was sent through registered post on

    01.12.2025 but in the reply submitted by the petitioner on 02.12.2025 before

    the Income Tax Officer (Investigation) there is no mention of even the letter

    sent to the Chairperson of Central Board of Direct Taxes. Further, the

    summons / notice is dated 14.11.2025 and the TEP is dated 12.11.2025

    whereas the ad interim temporary injunction was granted in the suit on

    22.04.2025. So the notice has been issued after many months of the suit and

    the interim order, which has neither any proximity nor any connection to the

    suit proceedings. We are of the view that there is force in the submission of

    the learned Assistant Solicitor General and the argument/plea of the learned

    counsel for the petitioner of mala fide has no legs to stand, based on the

    material annexed with the writ petition.

    25. As per the counter affidavit of the respondents the action has been

    taken as per the procedure on receipt of anonymous Tax Evasion Petition (TEP)

    against the petitioner. It was received on 12.11.2025. At this stage, we may
    RNT, J & BM, J
    15 WP No.841 of 2026

    mention that in the counter, the 5th respondent mentioned about TEP and the

    SOP. But did not annex the copy thereof. The petitioner filed I.A.No.3 of 2026

    to direct the respondent authorities to produce the documents i.e., anonymous

    Tax Evasion Petition (TEP) and the Standard Operating Procedure (SOP). The

    learned Assistant Solicitor General submitted that the matter may be heard and

    during the course of arguments, if so required by the Court those documents

    shall be placed before the Court, as he has got the record. During course of

    arguments, the anonymous TEP was placed before us which is dated

    12.11.2025 (with its English translation) for perusal. We satisfied ourselves

    that there is a complaint against the petitioner, anonymous TEP, based upon

    which the proceedings under Income Tax Act have been initiated, and though

    the copy of the TEP has not been annexed with the counter affidavit, the

    contents of the counter affidavit regarding the TEP are supported from the

    record, so placed. The aforesaid fact was also recorded in the Order dated

    27.02.2026 on which date the judgment was reserved in the present writ

    petition.

    26. In Union of India v. Ashok Kumar8 the Hon’ble Apex Court

    observed and held that he who seeks to invalidate or nullify any act or order

    must establish the charge of bad faith, an abuse or a misuse by the authority of

    its powers. The indirect motive or purpose, or bad faith or personal ill will is

    not to be held established except on clear proof thereof. The Hon’ble Apex

    Court further observed that it is not the law that mala fides in the sense of

    8
    (2005) 8 SCC 760
    RNT, J & BM, J
    16 WP No.841 of 2026

    improper motive should be established only by direct evidence. But it must be

    discernible from the order impugned or must be shown from the established

    surrounding factors which preceded the order. The Hon’ble Apex Court referred

    to the judgment in the case of S. Pratap Singh v. State of Punjab9 to

    reiterate that the burden of establishing mala fides is very heavy on the person

    who alleges it. The allegations of mala fides are often more easily made than

    proved, and the very seriousness of such allegations demands proof of a high

    order of credibility. Again referring to its judgment in E.P. Royappa v. State

    of T.N.10 the Hon’ble Apex Court observed that the courts would be slow to

    draw dubious inferences from incomplete facts placed before them by a party,

    particularly when the imputations are grave and they are made against the

    holder of an office which has a high responsibility in the administration.

    27. Paragraphs 21 and 22 of Ashok Kumar (supra) are reproduced as

    under:

    “21. Doubtless, he who seeks to invalidate or nullify any act or order must
    establish the charge of bad faith, an abuse or a misuse by the authority of its
    powers. While the indirect motive or purpose, or bad faith or personal ill will is
    not to be held established except on clear proof thereof, it is obviously difficult
    to establish the state of a man’s mind, for that is what the employee has to
    establish in this case, though this may sometimes be done. The difficulty is not
    lessened when one has to establish that a person apparently acting on the
    legitimate exercise of power has, in fact, been acting mala fide in the sense of
    pursuing an illegitimate aim. It is not the law that mala fides in the sense of
    improper motive should be established only by direct evidence. But it must be
    discernible from the order impugned or must be shown from the established

    9
    AIR 1964 SC 72
    10
    (1974) 4 SCC 3
    RNT, J & BM, J
    17 WP No.841 of 2026

    surrounding factors which preceded the order. If bad faith would vitiate the
    order, the same can, in our opinion, be deduced as a reasonable and inescapable
    inference from proved facts. (S. Pratap Singh v. State of Punjab [(1964) 4 SCR
    733 : AIR 1964 SC 72] .) It cannot be overlooked that the burden of
    establishing mala fides is very heavy on the person who alleges it. The
    allegations of mala fides are often more easily made than proved, and the
    very seriousness of such allegations demands proof of a high order of
    credibility. As noted by this Court in E.P. Royappa v. State of T.N. [(1974) 4
    SCC 3 : 1974 SCC (L&S) 165 : AIR 1974 SC 555] courts would be slow to
    draw dubious inferences from incomplete facts placed before them by a
    party, particularly when the imputations are grave and they are made
    against the holder of an office which has a high responsibility in the
    administration. (See Indian Rly.
    Construction Co. Ltd. v. Ajay Kumar [(2003)
    4 SCC 579 : 2003 SCC (L&S) 528] .)

    22. As observed by this Court in Gulam Mustafa v. State of
    Maharashtra
    [(1976) 1 SCC 800] mala fides is the last refuge of a losing
    litigant.”

    28. In HMT Ltd. and another v. Mudappa11 the question was whether

    the action of the State authorities in initiating acquisition proceedings under a

    valid law could be said to be illegal, unlawful or in mala fide exercise of power?

    There the High Court had held that the course adopted by the authorities was

    contrary to law. The Hon’ble Apex Court noted that it was reflected in the

    approach of the High Court that “it was a case of exploitation of statutory

    provisions in the name of public purpose to defeat just rights of an individual

    who had obtained decree in his favour”. The Hon’ble Apex Court observed that

    such an approach was neither legal nor permissible.

    29. Paragraphs 18 and 19 of Mudappa (supra) read as under:
    11

    (2007) 9 SCC 768
    RNT, J & BM, J
    18 WP No.841 of 2026

    “18. The question, however, is whether the action of the State authorities in
    initiating acquisition proceedings under a valid law could be said to be illegal,
    unlawful or in mala fide exercise of power? So far as the High Court is
    concerned, it held that the course adopted by the authorities was contrary to law.

    It is reflected in the approach of the Court wherein the learned Single Judge
    observed that it was a case of exploitation of statutory provisions in the name of
    public purpose to defeat just rights of an individual who had obtained decree in
    his favour.

    19. In our considered view, however, this approach is neither legal nor
    permissible. Passing of a decree by a competent court is one thing and
    exercise of statutory power by the authority is altogether a different thing.
    It is possible in a given case to come to a conclusion on the basis of evidence
    produced and materials placed on record to conclude that the action has
    been taken mala fide or for a collateral purpose or in colourable exercise of
    power. But, in our opinion, issuance of preliminary notification after a
    decree by a court of law would not ipso facto make it vulnerable and
    exercise of power mala fide. To us, therefore, the authorities were right in
    raising a preliminary objection that the petition was premature as by issuance of
    notification under sub-section (1) of Section 28 of the Act, an intention was
    declared by the State to acquire the land for public purpose i.e. for developing
    industry.”

    30. In Mudappa (supra), the Hon’ble Apex Court observed and held that

    the High Court was not right in coming to the conclusion that since a decree

    was passed by a competent court, no notification under the Act could have

    been issued by the State. The power exercised by the State was statutory in

    nature and irrespective of a decree in favour of the owners, such notification

    could be issued. The Hon’ble Apex Court referring to its previous judgments

    explained the concept of legal mala fide and observed that ‘legal malice’ or
    RNT, J & BM, J
    19 WP No.841 of 2026

    ‘malice in law’ means something done without lawful excuse. In the context on

    facts of the said case where notification was issued by the State under the Land

    Acquisition Act, after the decree in favour of the landowners, the Hon’ble Apex

    Court observed that where malice was attributed to the State, it could not be a

    case of malice in fact, or personal ill-will or spite on the part of the State. It

    could only be malice in law, i.e. legal mala fide. The State, if it wishes to

    acquire land, could exercise its power bona fide for statutory purpose and for

    none other. It was only because of the decree passed in favour of the owner

    that the proceedings for acquisition were necessary and hence, notification was

    issued. Such an action could not be held mala fide.

    31. Paragraphs 22 and 24 of Mudappa (supra) read as under:

    “22. The High Court was also not right in coming to the conclusion that
    since a decree was passed by a competent court, no notification under the Act
    could have been issued by the State. The power exercised by the State was
    statutory in nature and irrespective of a decree in favour of the owners, such
    notification could be issued. A situation similar to one before us had arisen
    in State of A.P. v. Goverdhanlal Pitti [(2003) 4 SCC 739] .
    In Goverdhanlal [(2003) 4 SCC 739] , a school building belonging to G was in
    the possession of the State as a tenant. An order of eviction was passed and the
    State was directed to hand over possession of property to G within a particular
    period. The State then took out proceedings under the Land Acquisition Act,
    1894
    for acquiring the property for public purpose, namely, for a
    school. G challenged the proceedings as mala fide. The High Court upheld the
    contention observing that there was “malice in law” inasmuch as the
    proceedings were initiated to scuttle a valid decree passed by a competent court.
    The State approached this Court.

    RNT, J & BM, J
    20 WP No.841 of 2026

    24. The Court also explained the concept of legal mala fide. By referring
    to Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989
    the Court stated: (Goverdhanlal case [(2003) 4 SCC 739] , SCC p. 744, para 12)
    “12. The legal meaning of malice is ‘ill will or spite towards a party and any
    indirect or improper motive in taking an action’. This is sometimes described as
    ‘malice in fact’. ‘Legal malice’ or ‘malice in law’ means ‘something done
    without lawful excuse’. In other words, ‘it is an act done wrongfully and
    wilfully without reasonable or probable cause, and not necessarily an act done
    from ill feeling and spite. It is a deliberate act in disregard of the rights of
    others.’ “

    It was observed that where malice was attributed to the State, it could not
    be a case of malice in fact, or personal ill-will or spite on the part of the
    State. It could only be malice in law i.e. legal mala fide. The State, if it
    wishes to acquire land, could exercise its power bona fide for statutory
    purpose and for none other. It was observed that it was only because of the
    decree passed in favour of the owner that the proceedings for acquisition were
    necessary and hence, notification was issued. Such an action could not be
    held mala fide.”

    32. Recently, in State of Rajasthan v. Sharwan Kumar Kumawat12

    on the point of legal malice the Hon’ble Apex Court held that the basis of a

    judgment can be removed and that a decision of the Court cannot be treated

    like a statute, particularly, when power is available to act and it is accordingly

    exercised in public interest, and in view thereof, there was no legal malice in

    the amendments made in the statute.

    33. Paragraph No.21 of Sharwan Kumar Kumawat (supra) reads as

    under:

    12

    (2023) 20 SCC 747
    RNT, J & BM, J
    21 WP No.841 of 2026

    ” 21. Though it is contended by the learned advocates appearing for the
    respondents that the impugned Rules have been brought forth only to nullify the
    effect of the judgments, as discussed, we do not think so. The appellants have
    duly complied with the orders passed. Even otherwise, law is quite settled that
    basis of a judgment can be removed and a decision of the court cannot be
    treated like a statute, particularly when power is available to act and it is
    accordingly exercised in public interest. In such view of the matter, we do
    not find any legal malice in the amendments. We wish to quote Kalabharati
    Advertising v. Hemant Vimalnath Narichania [Kalabharati
    Advertising
    v. Hemant Vimalnath Narichania, (2010) 9 SCC 437 : (2010) 3
    SCC (Civ) 808] : (SCC pp. 448-49, para 25) …….

    “Legal malice

    25. The State is under obligation to act fairly without ill will or malice– in
    fact or in law. “Legal malice” or “malice in law” means something done
    without lawful excuse. It is an act done wrongfully and wilfully without
    reasonable or probable cause, and not necessarily an act done from ill feeling
    and spite. It is a deliberate act in disregard to the rights of others. Where malice
    is attributed to the State, it can never be a case of personal ill will or spite on the
    part of the State. It is an act which is taken with an oblique or indirect object. It
    means exercise of statutory power for ‘purposes foreign to those for which it is
    in law intended’. It means conscious violation of the law to the prejudice of
    another, a depraved inclination on the part of the authority to disregard the
    rights of others, which intent is manifested by its injurious acts. (Vide ADM,
    Jabalpur v. Shivakant Shukla [ADM, Jabalpur v. Shivakant Shukla, (1976) 2
    SCC 521] ; S.R. Venkataraman v. Union of India [S.R. Venkataraman v. Union
    of India, (1979) 2 SCC 491 : 1979 SCC (L&S) 216] ; State of
    A.P. v. Goverdhanlal Pitti [State of A.P.
    v. Goverdhanlal Pitti, (2003) 4 SCC
    739] ; BPL Ltd. v. S.P. Gururaja [BPL Ltd. v. S.P. Gururaja, (2003) 8 SCC 567]
    and W.B. SEB v. Dilip Kumar Ray [W.B. SEB v. Dilip Kumar Ray, (2007) 14
    SCC 568 : (2009) 1 SCC (L&S) 860] .)”

    RNT, J & BM, J
    22 WP No.841 of 2026

    The scheme of Section 28 is thus similar to the scheme of acquisition of land
    under the Land Acquisition Act, 1894 under which such preliminary
    notification is issued, opportunity of being heard is afforded to the persons
    interested in the land and only thereafter final notification can be issued. At the
    stage of raising objections against acquisition, it is open to the respondents
    herein to raise all contentions. In spite of such objections, if final notification is
    issued by the State, it is open to them to take appropriate proceedings or to
    invoke jurisdiction of the High Court under Article 226 of the Constitution.
    Unfortunately, however, the High Court entertained the petition and quashed
    the preliminary notification overruling well-founded objection as to
    maintainability of petition raised by the State and the appellants herein.”

    34. In view of the aforesaid judgments and the principles settled on the

    point of legal malice, mala fide we are of the view that the authority i.e.,

    Income Tax Officer (Investigation) issued summons/notices in the exercise of

    power under Section 131 (1A) of the Income Tax Act. Such exercise is

    statutory. The facts as pleaded, for the reasons (supra), that the present

    respondents impleaded by name as also by designation are not party in the suit

    nor the petitioner is party in the suit, the interim injunction was passed in

    March 2025, the Tax Evasion Petition was filed on 12.11.2025, on which the

    statutory authorities preceded under the SOP and issued the notice on

    14.11.2025, merely because the respondent No.3 – The Principal Chief

    Commissioner of Income Tax, Hyderabad is remotely related to the defendants

    1 and 2 in the suit and merely because such relationship has been admitted, it

    does not follow that there was malice in fact, with respondents to initiate

    proceedings under Section 13 (1A) of Income Tax Act against the petitioner.

    The ‘malice in fact’ in our view, could not be established. The basis to plead the
    RNT, J & BM, J
    23 WP No.841 of 2026

    malice especially was the affidavit of the Chartered Accountant (P8) which itself

    has been introduced after the issuance of the notice/summons under Section

    131 (1A) of the Income Tax Act and further that, the said fact of the pendency

    of the suit and malice in fact, thereon was not taken in the reply filed by the

    petitioner before the authorities pursuant to the summons/notice. The said

    plea of malice is an afterthought being raised for the first time in the writ

    petition and is unestablished. So, malice in fact is not proved.

    35. The authorities have acted on receipt of Tax Evasion Petition and as

    per the counter of respondent No.5 the procedure was followed i.e., allotting

    the Unique Identification Number and referring the matter to the competent

    authorities and the Income Tax Officer (Investigation) issued the summons

    after seeking approval of the competent authority. The authorities, when are

    acting under the Income Tax Act and based on the material in the form of Tax

    Evasion Petition received, there is no question of malice in law as well or of any

    colourable exercise of power by the Income Tax authorities.

    36. Further, we are of the view that if such a plea is accepted, which is

    not worth acceptance, then no proceeding can be drawn under the Income Tax

    Act against the petitioner, as the suit is the first stage and the matter may go

    on for years from the suit stage to further stages before the next higher Courts.

    In the meantime the period of limitation prescribed for invoking the proceedings

    under Income Tax Act may also come to an end. No assessee if liable under

    the Income Tax Act can be permitted to escape the statutory provisions being

    invoked on such unfounded plea of malice / mala fide.

    RNT, J & BM, J
    24 WP No.841 of 2026

    37. Pankaj Bansal (supra) is on the point of colourable exercise of

    power or mala fides or malice, laying down that when the power is conferred to

    achieve a purpose that power must be exercised reasonably and in good faith

    to effectuate the purpose and when the power is exercised for extraneous or

    irrelevant considerations or reasons, the exercise of power is a colourable

    exercise of power or fraud on power which vitiate the action.

    38. There cannot be any dispute on the proposition of law as in Pankaj

    Bansal (supra) that the action is bad where the true object is to reach an end

    different from the one for which the power is entrusted, goaded by extraneous

    considerations, good or bad. When the custodian of power is influenced in its

    exercise by considerations outside those for promotion of which the power is

    vested, it is called a colourable exercise of power. The fraud on power voids the

    order if it is not exercised bona fide for the end designed, is also not a

    proposition in dispute. But, in the present case, the question is of the

    applicability of the principle. We have already observed in the earlier part of this

    judgment that the power has been exercised under the statutory provisions of

    the IT Act under Section 131 (1A) and the plea of malafide could not be

    established. So the principles of law as in Pankaj Bansal (supra) cannot be

    attracted to the present case to support the contention of the petitioner’s

    counsel either of malice, fraud of power, or colourable exercise of power.

    39. In Ishverlal J.Naik (supra) it was observed that when the reply

    was cryptic and also vague it did not amount to any denial of the averments of

    facts pleaded by the petitioner and it could be assumed that they were true and
    RNT, J & BM, J
    25 WP No.841 of 2026

    it would not be wrong to proceed on that assumption. We observe that the

    principle is well settled that if a factual aspect has been pleaded and has not

    been denied specifically, and the reply is only cryptic and vague, it would not

    amount to the denial, but, still it is in the exercise of judicial discretion to

    proceed or not, based on such fact. The Court may still require the petitioner to

    prove that fact. However, in the present case the contention of the petitioner

    raised in the writ petition with respect to the malice, mala fide on the part of

    some of the respondents has been specifically denied in the counter of the

    respondents.

    40. The next submission of the learned senior counsel for the petitioner

    is on the lack of jurisdiction in the Income Tax Officer (Investigation) to issue

    summons/notice submitting that he is not an authorized officer included under

    Section 131 (1A) of the IT Act.

    41. As per Section 131 (1A) of IT Act, the authorities mentioned

    thereunder are the Principal Director General or Director General or Principal

    Director or Director or Joint Director or Assistant Director or Deputy Director, or

    the authorised officer referred to in sub-section (1) of section 132. As per

    Section 132 (1) (A) the income tax officer is included therein on being

    authorized by the Principal Director General or Director General or Principal

    Director or Director or the Principal Chief Commissioner or Chief Commissioner

    or Principal Commissioner or Commissioner and under clause (B), authorized by

    Additional Director or Additional Commissioner or Joint Director or Joint

    Commissioner. Reading both the provisions together it cannot be said that the
    RNT, J & BM, J
    26 WP No.841 of 2026

    Income Tax Officer is not included under Section 131 (1A) for issuance of the

    summons/notice under the said Section.

    42. There is no pleading in the writ petition, taking any ground of

    challenge of want of jurisdiction in the Income Tax Officer (Investigation) to

    issue summons/notice. It has also not been pleaded that the Income Tax

    Officer (Investigation) was not authorized under Section 131 (1A) r/w. Section

    132 of the IT Act. A plea of want of jurisdiction certainly can be raised at any

    stage but it has to be raised. Such a plea has not been raised in the writ

    petition and at the time of arguments, the other side cannot be taken by

    surprise, by raising an argument not born from the record/pleadings on factual

    aspect. The ground No.2 in the writ petition is not ‘lack of jurisdiction’ but

    relates to the exercise of jurisdiction emphasizing the ground of malice / mala

    fide due to O.S.No.608 of 2025.

    43. So far as the other judgment relied upon by the learned counsels for

    both the sides is concerned, we consider as follows:

    i. In Laljibhai Kanjibhai Mandalia (supra) on which the reliance

    was placed by the learned counsel for the respondents, the

    Hon’ble Apex Court reiterated the principles in exercising the writ

    jurisdiction in the matter of search and seizure under Section 132

    of the Income Tax Act. However in the present case, the stage of

    search and seizure under Section 132 of the Act has yet not been

    reached. The stage is issuance of summons/notice calling for
    RNT, J & BM, J
    27 WP No.841 of 2026

    investigation, relevant documents as under Section 131 (1A) of

    the Act.

    ii. In N.K.Jewellers (supra) it was held that the reason to believe

    or reason to suspect, as the case may be, under Section 132 or

    132A of IT Act, shall not be disclosed to any person or any

    authority or the Appellate Tribunal.

    iii. Naseem Bano (supra) is not on the point. It’s under service law,

    i.e., qualifications for promotion of C.T. grade teacher to L.T.

    grade teacher.

    iv. Skyview Consultants Private Limited (supra) is a case of

    reopening of the assessment for the particular assessment year

    under Section 148 of the Act. The present is the stage only under

    Section 131 (1A) asking for the documents for verification and at

    this stage it cannot be said that the matter would or would not be

    opened and it is not the petitioner’s case pleaded in Writ Petition

    or in their reply submitted before authorities about no

    authorization of Income Tax Officer (Investigation) under Section

    131 (1A).

    v. In Pawan Kumar Garg (supra) the challenge was to the search

    and seizure made on 02.12.2020 under Section 132 of the IT Act

    and the notice issued, after the search and seizure, under Section

    131 (1A) of the Act. It was held by the Guwahati High Court that

    the notices issued under Section 131 (1A) of the Act were after
    RNT, J & BM, J
    28 WP No.841 of 2026

    the search and seizure operation under Section 132 of the Act

    which went to show that there was neither any reason to suspect

    nor material before the Authorizing Officer on the basis of which

    search operation could have been conducted under Section 132 of

    the Act. It was held that the notice under Section 131 (1A) of the

    Act was a precondition for search and seizure operation under

    Section 132 of the Act and in the absence of any such notice

    under Section 131 (1A) of the Act, prior to the search and seizure,

    the search and seizure made under Section 132 of the Act was

    without any material and could not be sustained. The Guwahati

    High Court thus held that the notice under Section 131 (1A) is a

    precondition for proceeding under Section 132 of the Act.

    vi. We observe that on the said aspect different High Courts have

    taken a different view. We are not concerned with the said issue

    in the present case, the reason being that present is only the

    stage of Section 131 (1A). It is not a case of conducting the

    search and seizure without making compliance of Section 131

    (1A). It is not a case of issuing the summons/notice under Section

    131 (1A), after the stage of Section 132. The aforesaid judgment

    is no help to the petitioner.

    44. No other argument was advanced.

    45. We hold that the impugned notice/summons under Section 131 (1A)

    of the Income Tax Act cannot be said to be illegal or suffering from any
    RNT, J & BM, J
    29 WP No.841 of 2026

    infirmity, neither on the ground of malice nor on the ground of jurisdictional

    error.

    46. I.A.No.4 of 2026 has been filed by the petitioner for direction to the

    respondents 1 and 2 to report on what action was taken on the representation

    of the petitioner dated 01.12.2025, sent inter alia to respondents 1 and 2

    through registered post. The prayer has been made contending that those

    respondents have not filed any counter affidavit and that despite receiving the

    same on 04.12.2025, any response or action has not been taken.

    47. We do not find any force in the application I.A.No.4 of 2026, as

    firstly, the said representation could not be shown to us to be statutory in

    nature, and secondly, in the writ petition, there is no prayer made with respect

    to the said representation. Any interim prayer beyond the scope of the main

    petition is not permissible. Finally, we are of the view that it is not relevant to

    ask what action has been taken on the petitioner’s representation, as the

    proceedings of summons / notice under Section 131 (1A) of the IT Act,

    impugned in the present writ petition are under the statute, and any action or

    decision taken or not taken, on the petitioner’s representation outside the scope

    of such provision of the Income Tax Act, is of no relevance for the decision of

    this writ petition.

    48. I.A.No.4 of 2026 therefore stands rejected.

    49. In the result, for the aforesaid reasons, the writ petition lacks merit

    and is dismissed.

    RNT, J & BM, J
    30 WP No.841 of 2026

    Pending miscellaneous petitions, if any, including I.A.No.3 of 2026, shall

    stand closed in consequence.

    _______________________
    RAVI NATH TILHARI, J

    ______________________
    BALAJI MEDAMALLI, J
    Date: 18.03.2026
    Dsr/AG

    Note:

    LR copy to be marked
    B/o
    Dsr



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here