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2013 Supreme(Raj) 40
(Rajasthan High Court)
Bhawna Lodha Vs. D.G. of Income Tax (Dr. Kothari, J.)
HON'BLE DR. VINEET KOTHARI, J.
Bhawna Lodha (Smt.)
Versus
Director General of Income Tax & Ors.
S.B. Civil Writ Petition No. 5513 of 2012, decided on 28.01.2013
Dinesh Mehta, for Petitioner;
K.K. Bissa, for Respondents
Headnote:Income Tax Act, 1961, Secs. 132, 271(1)(c) — Release of gold jewellery seized during the course of search conducted u/S. 132 of the Act — The assessee deposited disputed demand with interest and penalty amount and also filed appeal against the order of penalty u/S. 271(1)(c) which is still pending — The jewellery includes assessee's `stridhan' and personal jewellery — No demand of tax, interest and penalty outstanding against the petitioner — Demanded bank guarantee — Held — The identification of jewellery is not disputed by respondents — Mere pendency of appeal on the issue of penalty which is already deposited, even if rejected does not cause any prejudice to respondent — No justification for detention of seized jewellery and demand of bank guarantee — Order quashed— Directed to release the jewellery.
Writ petition allowed. (Paras 9 to 13)
vk;dj vf/kfu;e] 1961] /kkjk 132] 271¼1½¼x½ & vf/kfu;e dh /kkjk 132 ds rgr yh xbZ ryk'kh ds nkSjku vfHkxzg.k dh xbZ Lo.kZ Tosyjh ¼vkHkw"k.kksa½ dh fueqZfDr & fu/kkZfjfr us fookfnr ekax ds lkFk C;kt o 'kkfLr dh jkf'k tek djkbZ ,oa /kkjk 271¼1½¼x½ ds rgr 'kkfLr ds vkns'k ds fo:) vihy Hkh nk;j dh tks vc Hkh yfEcr gS & bu vkHkw"k.kksa esa fu/kkZfjfr dk L=h/ku o futh vkHkw"k.k lfEefyr gS & izkFkhZ ds fo:) cdk;k fdlh dj] C;kt ,oa 'kkfLr dh ekax ugha & cSad xkjUVh dh ekax dh & vfHkfu/kkZfjr & vkHkw"k.kksa dh f'kuk[rxh dks izR;FkhZ us fookfnr ugha fd;k & 'kkfLr] tks igys gh tek djkbZ tk pqdh gS] ds fook|d ij vihy dk yfEcr gksuk ek=] ;fn mls fujLr Hkh dj nh tkrh gS rks Hkh izR;FkhZ ij dksbZ izfrdwy izHkko ugha iM+sxk & vkns'k vfHk[kf.Mr fd;k & vkHkw"k.kksa dks fueqZDr djus ds vkns'k fn;sA
;kfpdk Lohdkj dhA ¼in la[;k 9 ls 13½
"(i) the impugned communication dated 16.4.2012 (Annexure-17) issued by the Respondent No. 3 may be quashed.
(ii) respondents may be directed to release 1004.8 gms of gold ornaments seized from the petitioner during the course of search on 18.1.2007.
(iii) an exemplary cost of Rs. 1,00,000/- may be awarded to the petitioner and same may be directed to be recovered personally from the erring officers.
(iv) Any other order or direction which this Hon'ble Court deems just and proper may kindly be passed."
2. A search u/S. 132 of the Income Tax Act, 1961, was conducted at the residential house of the petitioner on 18.1.2007 and inter-alia, 1004.08 grams gold jewellery was seized during the course of said search. After search, the block assessment was completed for the years 2001-02 to 2006-07 by the Assessing Authority vide assessment order dated 31.10.2008; and certain demands of tax and penalty was raised against the petitioner. In the appeals filed by the petitioner-assessee, the assessee got certain relief's in the additions made in the declared income of the petitioner-assessee vide Annex. 6 order of the appellate authority dated 22.11.2010. The assessee has given summary of the demands and appeal effect, which shows that after deposit of disputed demand with interest and penalty amount as per orders passed by the Assessing Authority, the assessee became entitled to a refund of Rs. 1,20,874/- with interest from the Income Department. The petitioner-assessee also filed an appeal before the Income-tax Appellate Tribunal against the order of penalty passed against her u/Sec.271(1)(c) of the Income-tax Act vide order dated 7.3.2012 imposing penalty of Rs.72,300/-, which is still pending.
3. The assessee has admittedly paid even the amount of penalty also as stated in para 13 of the writ petition. In para 13, the petitioner has categorically stated that entire amount of demand raised in the assessment orders was deposited by her and the appeals of the petitioner also came to be allowed giving substantial relief's to the petitioner; and only one of the aforesaid appeal against penalty is pending before the income-tax Appellate Tribunal. However, the respondent authorities of the Income-tax Department have not yet released the gold ornaments/jewellery seized at the time of search conducted on the residential place, which includes her `Stridhan' and personal jewellery, even though there is no existing demand of tax against the petitioner-assessee.
4. A reply to the writ petition has also been filed on behalf of the Income-tax Department and in reply to Para/s 13 to 15 of the writ petition, the respondents reply is as under:-
"13-15. That in reply to the averments made in para Nos. 13 to 15 of the writ petition, it is respectfully reiterated that at present, penalty matters were pending with the answering respondents-department and hence, the seized jewellery could have been released only in accordance with the provisions and procedure provided under the relevant rules/circulars issued by the Government of India."
5. The respondents have also relied upon a Circular issued by the Central Board of Direct Taxes (Annex. 8) dated 21st January, 2009, which is also quoted below:-
F. No. 286/6/2008-IT (Inv. II)
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
Room No. 254, North Block
New Delhi, the 21st January, 2009
To,
All Chief Commissioners of Income Tax (CCA)
All Chief Commissioners of Income Tax (Central)
All Directors General of Income Tax (Inv/Intell.)
Sir/Madam,
Sub- Search and Seizure Cases- Release of Seized Assets other than Cash-Regarding
Reference is invited to Board's Instruction No. 11/2006 in F. No. F. No. 286/138/2006-IT (Inv. II) dated 1.12.2006 wherein certain issues relating to the release of cash deposits in the PD Accounts were dealt with in respect of release of seized assets, other than cash, the
