High Court Of Rajasthan : Jaipur Bench
Suresh Val Chand Jain vs. Union Of India & Ors.
Sections 132, 132B, ART. 226
K.S. Rathore, J.
Civil Writ Petition No. 186 of 2005
19th April, 2005
Counsel Appeared
Dr. P.C. Jain with S.S. Gogra and V.K. Gogra, for the Petitioner : R.B. Mathur, J.K. Singhi with Anuroop Singhi, for the Respondents
JUDGMENT
K.S. Rathore, J. :
By way of this writ petition the petitioner made the following prayers : (i) to declare the seizure of gold bullion on 9th Dec., 2004 (Annex. 2) to be null and void; (ii) to declare the search and seizure conducted in the premises of the petitioner on 9th Dec., 2004 (Annex. 3) as void and without there being any authority of law and without jurisdiction; (iii) to direct the respondent-authorities to hand over the goods which have been seized by them to the petitioner forthwith; (iv) to direct the respondent-authorities to handover the cash of Rs. 6.50 lakhs illegally seized by them to the petitioner forthwith (Annex. 3).
Learned counsel for the respective parties argued at length. The main grievance of the petitioner is that the gold belonging to the petitioner was seized on 9th Dec., 2004. As per s. 132 although the authorities are empowered to search and seize but as per the proviso to s. 132 the bullion, jewellery or other valuable article or thing, being stock-in-trade of the business, found as a result of such search shall not be seized but the authorised officer shall make a note or inventory of such stock-in-trade of the business. Since the bullion and the gold seized by the authorised officer on 9th Dec., 2004 is stock-in-trade of the business, therefore, such bullion cannot be seized and proviso to s. 132 only gives power to make inventory. But here in the instant case 44 kg. gold has been seized by the IT Department.
Learned counsel appearing on behalf of the IT Department Mr. R.B. Mathur does not dispute so far as this proviso to s. 132 but he submits that the petitioner have to submit an application for such seizure (release) under s. 132B. He further submits that the person concerned have to make an application to the AO within thirty days from the end of the month in which the asset was seized, for release of asset and the nature and source of acquisition of any such asset is explained to the satisfaction of the AO, the amount of any existing liability referred to in this clause may be recovered out of such asset and the remaining portion, if any, of the asset may be released, with the prior approval of the Chief CIT or CIT, to the person from whose custody the assets were seized.
Since no application whatsoever has been moved under s. 132B to show and to satisfy the authorities regarding nature and source of acquisition of asset.
On the contrary learned counsel for the petitioner submits that immediately after seizure the petitioner has sent the entire record to the office at Bombay and at Jaipur. Both the offices have returned the same without considering and without explaining any reason as to why the authorised officer is not satisfied with the record and it is only mentioned that since record is not accompanied with the explanation and also not explained in person, therefore, the original record is sent back to the petitioner. Without entering into the merit of the case and the controversy of the case, since this writ petition involves several disputed questions of facts, upon perusal of s. 132 and 132B it is no doubt that there is provision of making such application by the person concerned. It is mandatory for the AO to decide the same within a period of 30 days and in case the petitioner satisfies the nature and source of acquisition of gold seized by the respondents, they have to release the same forthwith with the prior approval of the Chief CIT or the CIT.
Mr. R.B. Mathur further submits that in case the petitioner co-operates with the respondents and satisfies them, they undertake to release the goods forthwith.
In view of the aforesaid submissions and the provisions of law without entering into the merit of the case as the petitioner has every right to challenge the seizure memo and can also raise the issue against the flaws and violation of any of the provisions of the Acts and the Rules but at the same time the petitioner is asking for, in this present petition, release of the goods, this Court is not inclined to exercise extraordinary jurisdiction while exercising power under Art. 226 of the Constitution for release of gold seized by the respondents. It is for the IT authority to examine the entire documents.
For that purpose, the petitioner may file application before the AO and the AO is directed that immediately after filing of such application within a period of 15 days shall examine the matter and in case the petitioner satisfies the AO regarding the source of acquisition of the gold, the AO is further directed to release the gold forthwith. But in any case all the exercise is required to be undertaken within a period of 15 days from the date of receipt of the copy of this order. The petitioner is expected to co-operate with the respondents and place entire documents, which are not submitted so far, to satisfy the authorities.
With these observations, the writ petition stands disposed of.
[Citation : 287 ITR 365]
