Gauhati H.C : The issue under judicial scrutiny in this application under Art. 226 of the Constitution pertains to the non-release of the seized assets which were found to have been properly explained under s. 132(5) of the IT Act, 1961, hereinafter referred to as the Act.

Dr. Ashok Saraf & S. Mitra, for the Petitioner : U. Bhuyan, for the Respondents

JUDGMENT

A.H. SAIKIA, J. :

The issue under judicial scrutiny in this application under Art. 226 of the Constitution pertains to the non-release of the seized assets which were found to have been properly explained under s. 132(5) of the IT Act, 1961, hereinafter referred to as the Act.

I have heard Dr. Ashok Saraf, learned senior counsel assisted by Mr. S. Mitra representing the petitioner. Also heard Mr. U. Dhuyan, learned counsel appearing for the IT Department. Unfurling the factual matrix of the case, the petitioner has narrated that pursuant to the warrant of authorisation issued by the Director of Income-tax (Investigation), Ahmedabad, a search and seizure operation was conducted in the residential premises of one Sri S.S. Sharma at Shyamkunj, Khandala House, on 29th April, 1992. Simultaneously searches were also conducted at the farm house at Heetapura Ajmer Road, Jaipur, as well as industry premises of RCS Vanaspati Industries Ltd.

164/81, Industrial Area, Jhotwara Jaipur.

During the course of the search many incriminating documents accounts, cash/valuable, etc. were found and seized by the Department. The operation was conducted under s. 132 of the Act. Proceedings under s. 132(5) of the Act r/w r. 112A of the IT Rules, 1962, were initiated in respect of the petitioner and thereafter the impugned order dt. 28th Aug., 1992, was passed by the assessing authority, respondent No. 1. Respondent No. 1 in the said impugned order found that the jewellery worth Rs. 2,62,354 has been properly explained but instead of being released, the said seized assets had been retained by the Department. Hence, this writ petition. Arguing on behalf of the petitioner. Dr. Saraf, adverts to paras. 6 and 9 of the writ petition which are as follows : “6. That respondent No. 1 accepted explanation in respect of the jewellery worth Rs. 2,62,354 out of the seized jewellery worth Rs. 2,70,031 vide last para p. 2 of the impugned order which reads as under : After due examination I treat the jewellery worth Rs. 2,62,354 belonged to Smt. Jaya Sharma and the same were properly explained by her.” 9. That respondent No. 1, vide p. 3 of the impugned order, held as under : “As the liability of the assessee exceeds assets seized, the same will be retained by the Department.” Elaborating his arguments on the basis of the above referred paragraphs in the writ petition, learned senior counsel states that as per the provisions of the law laid down under sub-s. (5) of s. 132 of the Act the assets for which the proper explanation has been given is required to be released forthwith. In the instant case, the authority failed to perform the statutory obligation by not releasing the said properly explained seized assets which were retained by the Revenue. It is stated that such retention of the properly explained seized assets is a clear violation of the statutory provisions of law and respondent No. 1 should be directed to release the same forthwith.

6. The short point involved in this case is relating to the interpretation of s. 132(5) of the Act. Sec. 132(5) is quoted below : “132. (5) Where any money, bullion, jewellery or other valuable article or thing (hereafter in this section and in ss. 132A and 132B referred to as the assets) is seized under sub-s. (1) or sub-s. (1A) as a result of a search initiated or requisition made before the 1st July, 1995, the ITO, after affording a reasonable opportunity to the person concerned of being heard and making such enquiry as may be prescribed, shall, within one hundred and twenty days of the seizure, make an order, with the previous approval of the Joint CIT,— (i) estimating the undisclosed income (including the income from the undisclosed property) in a summary manner to the best of his judgment on the basis of such material as are available with him : (ii) Calculating the amount of tax on the income so estimated in accordance with the provisions of the Indian IT Act, 1922 (11 of 1922), or this Act; (iii) specifying the amount that will be required to satisfy any existing liability under this Act and any one or more of the Acts specified in cl. (a) of sub-s. (1) of s. 230A in respect of which such person is in default or is deemed to be in default, and retain in his custody such assets or part thereof as are in his opinion sufficient to satisfy the aggregate of the amounts referred to in cls. (ii) and (iii) and forthwith release the remaining portion. If any, of the assets to the person from whose custody they were seized.” A bare perusal of the said provisions of law laid down under s 132(5) clearly shows that the seized assets for which proper explanation has been given shall be released forthwith. Dr. Saraf, learned counsel for the petitioner, relying on the above statutory provisions, has cited a decision of this Court in Manik Chand Soni vs. Asstt. CIT (1995) 216 ITR 552 (Gau) : TC 62R.368 and fairly submits that the petitioner’s case is squarely covered by the ratio of the said decision. I do subscribe to the said submission of learned counsel for the petitioner and accordingly I am inclined to accept the applicability of the ratio of Manik Chand Soni vs. Asstt. CIT (supra) to the case in hand. Countering the contentions made by Dr. Saraf, learned senior counsel for the petitioner, U. Bhuyan, learned counsel appearing for the IT Department, raises some objection as regards the maintainability of the petition under Art.226 of the Constitution on the ground of having alternative remedy. Dwelling on para. 15 of the writ petition as well as the affidavit-in-opposition filed by the Department, Mr. Bhuyan, learned counsel, states that as evident from the para. 15 of the writ petition, the petitioner had already availed of alternative remedy for filing a petition to respondent No. 2 on 10th Sept., 1992, against the impugned order and the same being pending before the competent authority for disposal, the present writ petition is not maintainable. Further, he submits that the impugned order not being passed in a judicial or quasi-judicial proceeding, the writ petition is not maintainable against the same. He has referred to a decision of Narayan R. Bandekar vs. ITO (1989) 177 ITR 207 (Bom) : TC 60R.608 in support of his contention. In the said case it was held that the proceedings under s. 132(5) of the Act is not a judicial or quasi-judicial one and as such, the same does not come under the writ jurisdiction of Art. 226 of the Constitution of India.

The submissions advanced by Mr. Bhuyan, learned counsel for the Revenue, do not convince me a wee bit. As regards the maintainability of this petition for having an alternative remedy, I safely agree to differ with his submission for the reasons below.

It is a settled position of law that availing of an alternative statutory remedy cannot be a bar for invoking the jurisdiction under Art. 226 of the Constitution unless the same is adequate and efficacious. Moreover, when a question of interpretation of the provisions of law is involved, a writ petition is maintainable in spite of having an alternative remedy, the apex Court’s decision in Paradip Port Trust vs. STO (1999) 114 STC 178 (SC) may be looked into. In the case in hand though the petitioner has approached respondent No. 2 on 10th Sept., 1992, under s. 132(11) of the Act against the impugned order, the date of hearing of the same was fixed only on 31st March, 1994. On that day of hearing of the same was fixed only on 31st March, 1994. On that day the matter was heard but respondent No. 2 did not pass any order till the date of filing this petition and seized assets have been retained in violation of the provisions of law. Further, I do not find reason as to why the impugned order cannot be challenged under Art. 226 of the Constitution invoking the writ jurisdiction of this Court on the ground that the same is not a judicial or quasi judicial orders. It appears on the face of the impugned order itself that the Revenue has retained the seized assets for which proper explanation has been given in clear violation of s. 132(5) of the Act.

Having regard to the provisions of law under s. 132(5) of the Act as well as the decision in Manik Chand Soni vs. Asstt. CIT (supra) and having gone through the entire materials available on record and upon hearing learned counsel for the parties, I have no hesitation to issue a direction to respondent No. 1—Asstt. CIT (Investigation Circle), Dibrugarh, to release the seized assets forthwith for which proper explanation has been given. Accordingly, I direct the said authority to release the seized assets forthwith.

In the result, this writ petition is allowed to the extent indicated above. However, there shall be no order as to costs.

[Citation : 249 ITR 15]