High Court Of Punjab & Haryana
Jiwan Lal Kapoor vs. CIT & ANR.
Sections 132, 158BD
G.S. Singhvi & K.S. Garewal, JJ.
Civil Writ Petn. No. 8702 of 2003
15th July, 2003
Counsel Appeared
Salil Kapoor, for the Petitioner : N.L. Sharda, for the Respondent
JUDGMENT
G.S. SINGHVI, J. :
This is the third round of litigation by the petitioner in the matter of release of jewellery lying with the authorities of IT Department which was seized at Bhopal in the month of June, 2002.
The facts :
2. Shri Rajiv Kapoor son of petitioner-Jiwan Lal Kapoor had gone to Bhopal in the month of June, 2002 carrying with him gold jewellery weighing 3934.410 grams valued at Rs. 17,50,808. He went to the shop of M/s Shrinagar Jewellers at Bhopal on 13th June, 2002, when an income-tax raid took place in that shop. Amongst others, the jewellery which Rajiv Kapoor was carrying with him was also seized along with bill books, vouchers, etc. by the IT authorities from the shop of M/s Shrinagar Jewellers, Bhopal. The officer dealing with the case of M/s Shrinagar Jewellers Bhopal, recorded a prima facie finding that the jewellery seized from Rajiv Kapoor did not belong to M/s Shrinagar Jewellers and that it is the unaccounted jewellery of M/s J.L. Kapoor & Sons, Amritsar of which Rajiv Kapoor was a representative. After recording the said finding, he transferred the record to his counter-part at Amritsar for taking necessary action against M/s J.L. Kapoor & Sons. The AO at Amritsar issued notice to M/s J.L. Kapoor and sons under s. 158BD of the IT Act, 1961 (for short, ‘the Act’). The petitioner challenged the proceedings initiated against M/s J.L. Kapoor & Sons in CWP No. 18844 of 2002 in which he prayed for issuance of a writ in the nature of certiorari to quash telephonic authorisation given by the Jt. Director of IT, Bhopal for conducting of search and seizure of goods by Asstt. CIT, Bhopal and for issuance of a writ in the nature of mandamus to release the goods and related documents like bills, books and vouchers. The same was disposed of by a Division Bench of this Court on 4th March, 2003 [reported as Jiwan Lal Kapoor vs. Union of India (2003) 182 CTR (P&H) 169—Ed.] by directing the assessing authority to examine the books of account and other material which may be produced before him and then record a finding whether the jewellery seized from Rajiv Kapoor had been accounted for or not. The relevant extracts of the order passed by the Division Bench read as under :
“It is common case of the parties that the jewellery seized from Rajiv Kapoor cannot be retained by the IT authorities if the same stands accounted for/reflected in the account books of M/s J.L. Kapoor & Sons. It is, therefore, necessary that the AO of M/s J.L. Kapoor & Sons at Amritsar should examine the books of account including the stock register and record a finding whether the seized jewellery lying at Bhopal had been accounted for by M/s J.L. Kapoor & Sons in its books of account or not. We, therefore, direct the petitioner to appear before his assessing authority at Amritsar on 10th March, 2003 at 10.30 A.M. along with the books of account including the stock register and such other evidence which he may like to produce before the assessing authority. The assessing authority will examine the books of account and other material that may be produced before him and record a finding whether the jewellery seized from Rajiv Kapoor which is presently lying at Bhopal, has been accounted for or not. In case the assessing authority comes to the conclusion that the jewellery has been accounted for, he shall pass an order releasing the same forthwith. In case such an order is passed, the concerned CIT at Bhopal will release the jewellery forthwith to the representatives of the petitioner.” In the purported compliance of the direction given by the High Court, the Asstt. CIT, Circle-2 Amritsar (hereinafter referred to as respondent No. 2) passed order dt. 20th/21st March, 2003, (Annexure P-20) declaring that the entries contained in the stock register are not authentic and genuine. The petitioner then filed Civil Misc. No. 9904 of 2003 in CWP No. 18844 of 2002, for issuance of a direction to the respondents to release the jewellery seized at Bhopal. The same was dismissed by the Court on 23rd May, 2003, with liberty to the petitioner to avail appropriate legal remedy against the order passed by respondent No. 2. This is the background of the present writ petition in which the petitioner has prayed for quashing of order dt. 20th/21st March, 2003, and for issuance of a writ in the nature of mandamus for release of the jewellery.
3. We have heard Shri Salil Kapoor, counsel for the petitioner and Shri N.L. Sharda, learned counsel for the respondents and have carefully gone through the documents produced by the parties. In our opinion the impugned order is liable to be quashed because while deciding the question relating to release of the jewellery, respondent No. 2 failed to consider the material produced by the petitioner and gravely erred in appreciating the entries recorded in the stock register. A reading of the impugned order shows that Shri J.P. Bhatia, Advocate had appeared before respondent No. 2 and produced the following documents :
“1. Copy of High Court order as mentioned above. Copy of impounding order. Original affidavit of Shri Om Prakash Mehta, Shri Jagdish Mitter and Shri Atul Mehra. Photo copies of vouchers issued by M/s Mehta Artist Jewellers, M/s Jagdish Mitter Jewellers and M/s Atul Enterprises. Letter written by Shri K.S. Talwar, Asstt. CIT (Inv.) Amritsar to Shri Ajit Sinha, Addl. DIT (Inv) Bhopal. Power of Attorney. Stock register for the period from 1st April, 2002, onwards along with other books of account.” However, without even adverting to any of the documents, respondent No. 2 straightaway concluded that the entries recorded in the stock register are not genuine. He recorded this conclusion on the basis of some overwritings in one of the columns of entries recorded against Sr. Nos. 1, 2, 4 and 5. We have examined the disputed entries and find that the opinion formed by respondent No. 2 qua the correctness of those entries is based on misreading of relevant page of the stock register. If the officer had bothered to undertake a comprehensive study of various entries, he would have surely realised that the so-called overwritings are irrelevant and insignificant and the figures recorded therein tally with other entries. In view of this, we hold that the conclusion recorded by respondent No. 2 that entries recorded in the stock register are not genuine is per se erroneous and the same has the effect of vitiating the impugned order.
We are further of the view that failure of respondent No. 2 to consider the documents produced by the Advocate representing the petitioner has resulted in grave failure of justice apart from noncompliance of the directions given by the High Court. Therefore, without going into other points raised by the petitioner, we deem it proper to remand the case to respondent No. 2 with a direction to him to pass fresh order in terms of the directions given by the High Court in CWP No. 18844 of 2002. In the result, the writ petition is allowed. Order Annexure P-20 is quashed with a direction to respondent No. 2 to pass a fresh order within a period of one month from the date of presentation of a certified copy of the order. The petitioner is directed to appear before respondent No. 2 in person or through his Advocate on 25th Aug., 2003, and produce a copy of this order.
[Citation : 269 ITR 115]
