A fresh prohibitory order under Section 132 (3) of the Income-tax Act, 1961 is not permissible in relation to the same action of search and seizure.

( 1 ) THIS batch of petitions raises common question of fact and law with an insignificant variation. In all these cases the petitioners herein have prayed for a writ of mandamus commanding respondents Nos. 1 to 6 to restrain from appropriating and/or withdrawing any amount lying in favour of the petitioners from respondent No. 7 and further in particular appropriating and/or withdrawing any amount in respect of the several managers' cheques all dated February 19, 2004. Further direction has been sought for commanding respondents Nos. 7 and 8 to honour the managers' cheques issued by City Bank drawn in favour of the petitioners as and when presented.

( 2 ) THE common grievance of the petitioners is that despite presentation of the managers' cheques, the bank authorities are not honouring because of the preventive and obstructive action being taken by the Revenue authorities. The petitioners and each of them at an earlier point of time came to this court for identical grievance challenging a prohibitory order dated February 20, 2004, issued under Section 132 (3) of the Income-tax Act, 1961 (hereinafter referred to as the said Act ). These first writ petitions were moved on April 19, 2004 and on April 20, 2004, the aforesaid writ petitions were disposed of as the said prohibitory order under Section 132 (3) had lost its force because of efflux of statutory period. As such the challenges were not maintainable as being infructuous.

( 3 ) IN these present writ petitions because of the bank's refusal to honour the said managers' cheques on account of issuance of fresh prohibitory order under Section 132, Sub-section (3) of the said Act and for wrongful and forcible demand for encashment of the said cheques and making over proceeds thereof to them.

( 4 ) MR. Pratap Chatterjee, the learned senior advocate appearing with Mr. Debal Banerjee, the learned senior advocate, contends that under the scheme of the newly inserted Section 132 (3) read with Sub-section (8a) of the said Act no fresh prohibitory order can be issued in relation to the same action of search and seizure. Mr. Chatterjee says that this Sub-section (8a) has been inserted with effect from June 1, 2002, by the Finance Act, 2002. Prior thereto there was a provision for extension beyond the period of 60 days subject to strict regulatory measure and guidance, meaning thereby extension could not be made automatic. The object behind the deletion of the provision for extension has been stated in the proposal, when the Bill of the aforesaid Finance Act, 2002, was presented before Parliament. From this proposal it will be apparent and the court should take note of the same, that the object was to eliminate unnecessary harassment and prolongation resulting in the search and seizure action, under Section 132 (3) of the said Act, by fixing an inflexible time limit of sixty days.

( 5 ) ACCORDING to them, this fresh prohibitory order under Section 132 (3) of the said Act is nothing but an automatic order of extension in disguise. Such action on the part of the Revenue in the real sense is frustrating the very object of deletion of the earlier provision, which they cannot do. In essence, this issuance of the fresh order is a fraud upon the statute.

( 6 ) MR. Chatterjee submits that his client is not challenging the jurisdiction of the authority of the officer concerned in the matter of issuance of summons or taking action for search and seizure, but these are to be done within the four corners of the statute. He urges that upon a fair and careful reading of Section 132 it will appear to this court that the Revenue official cannot seize anything or any substance other than mentioned in the said section. The money lying in the bank or in the custody of the bank meant for honouring the managers' cheques and/or pay order cannot be said to belong to the petitioners under hanking law. The bank is not a custodian of the money of the petitioners rather it is debt