T. N. C. RANGARAJAN, J.

( 1 ) THIS writ petition is concerned with the Voluntary Disclosure of Income Scheme, 1997 (hereinafter referred to as vdis ). Pleadings - Affidavit in support of the petition

( 2 ) THE petitioner states that he is an income-tax assessee and he has filed returns upto asst. yr. 1996-97. A search was conducted in his premises on 16/07/1997, and a sum of Rs. 2,80,000 was seized along with the pledged jewellery. It is stated that under the VDIS 1997, he had a right to make a voluntary disclosure from 1/07/1997, upto 31/12/1997, and the search conducted during that period arbitrarily took away that right. It is also stated that the classification of those who have been searched and denying them the right to make a disclosure was discriminatory. It is further stated that no distinction has been made between those cases where nothing was discovered during the search and cases where anything is seized and this also amounted to discrimination. Reference is also made to the circular issued by the CBDT stating that in the case of survey, there is no bar to the making of disclosure for the earlier years and the benefit of such departure should not be denied to the petitioners as otherwise it will be discriminatory. Counter-affidavit of the second respondent

( 3 ) THE CIT has filed a counter-affidavit stating that the power to make a search under Chapter XIII-C of the IT Act has not been kept in abeyance, and therefore, a search was conducted in the premises of the petitioner and his five brothers when unaccounted cash of Rs. 20. 15 lakhs and pawned jewellery of Rs. 1,89,500 was found. It is also stated that the total disclosure of the family was Rs. 1. 30 crores including Rs. 27. 15 lakhs in the hands of the petitioner. It is stated that the assessees, who have been identified as tax evaders by search, were not entitled to the benefit of the Scheme. It is also stated that no circulars of CBDT have been issued which are in conflict with S. 64 of the Finance Act, 1997. In the reply-affidavit, it is reiterated that the denial of the benefit of the Scheme to the petitioner is discriminatory and arbitrary. Interim Directions

( 4 ) THE writ petition was filed on 20/08/1997. On 1/09/1997, it was admitted and an interim direction was given permitting the petitioner to file a declaration under the Scheme in respect of the assessment year earlier to the assessment year in which the raid was conducted pending further orders. But the petitioner has not filed any declaration so far. The petitioner also filed an application to expedite the hearing, which was ordered on 24/10/1997, posting the case for hearing on 17/11/1997. Thereafter, at the request of the Revenue the case was adjourned from time to time and was heard from 23/12/1997, onwards. Counter-affidavit of 2nd respondent was filed only on 23/12/1997. Even though the validity of the section of the Finance Act has been questioned, and the 4th respondent, the Union of India represented by its Secretary, Ministry of Finance, is the proper person to defend the case, no counter-affidavit has been filed by the 4th respondent. Again, the 3rd respondent, which is CBDT which has issued circulars, has also not filed any counter-affidavit. Under the Writ Rules, the counter-affidavit has to be filed after the service of notice and before the case is posted for final hearing. The standing counsel for income-tax had taken notice at the time of admission and a notice was also sent by registered post. It was acknowledged by the 4th respondent, without giving the date of receipt of notice whereas the ITO has received it on 7/11/1997. But the case did not get the attention it deserved. Contentions of the petitioner

( 5 ) THE learned counsel for the petitioner took us through the provisions of the Scheme as well as the circulars issued by the CBDT and submitted that the intention of the Scheme was to give an opportunity to all tax evaders to come out with a disclosure within the Scheme period

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