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High Court of Judicature at Madras
THE HONOURABLE MR.JUSTICE F.M. IBRAHIM KALIFULLA & THE HONOURABLE MR.JUSTICE N. KIRUBAKARAN
Assistant Director of Income Tax (Inv) (AIU), & Others
Versus
Apparasu Ravi
WRIT APPEAL No.1205 of 2010
Decided On : 23-12-2010
Income Tax - Jurisdiction of Search and Seizure - Sections 132, 132B - The court held that the search and seizure made on the respondent was validly made under Section 132 of the Income Tax Act. The respondent was found to be a resident in India as per Section 6(1)(c) of the Act and therefore the order passed under Section 132B of the Act dated 10.12.2009 was held to be valid.
Fact of the Case:
The respondent was intercepted at the Chennai Airport with 10 kg of gold jewellery. He claimed that an unknown person asked him to carry the jewellery to Chennai and offered him money. The Income Tax department seized the jewellery and initiated assessment proceedings.
Finding of the Court:
The court found that the search and seizure made on the respondent was valid. The respondent was held to be a resident in India as per Section 6(1)(c) of the Act. The order passed under Section 132B of the Act dated 10.12.2009 was held to be valid.
Issues: 1. Validity of the search and seizure under Section 132 of the Income Tax Act. 2. Whether the respondent can be held to be a resident of India as per Section 6(1)(c) of the Act. 3. Validity of the order passed under Section 132B of the Act dated 10.12.2009.
Ratio Decidendi: The search and seizure made on the respondent was found to be valid under Section 132 of the Income Tax Act. The respondent was held to be a resident in India as per Section 6(1)(c) of the Act. The order passed under Section 132B of the Act dated 10.12.2009 was held to be valid.
Final Decision: The writ appeal stands allowed and the order of the learned Single Judge is set aside. The order of the second appellant dated 10.12.2009, stands restored. The appellants are directed to conclude the assessment proceedings expeditiously, preferably within three months from the date of receipt of a copy of this Judgment.
F.M.IBRAHIM KALIFULLA, J.
The Income Tax department is the appellant. The challenge is to the order of the learned Single Judge dated 13.04.2010, passed in W.P.No.921 of 2010.
2. By the impugned order, the learned Single Judge set aside the order of the second appellant dated 10.12.2009, passed under Section 132B of the Income Tax Act and consequently directed the fourth appellant to return the gold jewellery weighing 9957/430 grams seized from the respondent at the gate of Anna International Airport, Chennai on the night of 13th August, 2009/early morning of 14th August, 2009.
3. The brief facts which are required to be stated as pleaded by the appellants are that the respondent travelled from Singapore to Chennai on 13.08.2009, with 10 kg of gold. He was intercepted by the Air Intelligence Unit of the Income Tax Department at the Airport after Customs clearance. When he was asked as to whether he was carrying any valuable items from Singapore, the respondent informed that he was carrying 10 kgs of gold jewellery. When he was asked about the purpose of carrying 10 kgs of gold jewellery from Singapore to India, the respondent stated that he does not own 10 kgs of gold, that after obtaining boarding pass at Singapore Airport, when he was ready to enter the check-in area to complete the other formalities, an unknown person approached him with a request to carry 10 kgs of gold jewellery to Chennai. The said person is stated to have offered Rs.8,000/- to the respondent to carry the said gold jewellery to Chennai and hand it over to a person at Chennai at the International Airport arrival. According to the respondent, when he asked him as to how he could identify the receiver of the gold jewellery at the Chennai Airport, the said unknown person informed him that if he furnishes the mobile number, the other person will be able to identify him. The said unknown person also stated to have told him that if the other person at Chennai reveal the respondents mobile number furnished by him at the Singapore Airport, he should hand over the 10 kgs of gold to him. The said unknown person is also stated to have given USD 10950 for the purpose of payment of Customs Duty at Chennai Airport and that the sum of Rs.8,000/-would be paid by the person waiting at the Chennai Airport on receipt of 10 kgs of gold jewellery.
4. It is the case of the appellants that when the above information was gathered from the respondent, in order to hold a search on him, they obtained necessary sanction from the Competent Authority and thereafter held the search on the respondent on 14.08.2009.
5. It is stated that in the course of the search on 14.08.2009, the respondent took the very same stand as regards the 10 kgs of gold jewellery carried by him and he also stated that he would be staying in India for about two months and that he has not purchased his return ticket till that point of time. He is also stated to have revealed his place of abode as his ancestral house at No.4/175, Gandhi Nagar, Thirumallaivasal, Sirkali Taluk, Nagai District.
6. The appellants thereafter, seized the gold jewellery under Section 132 of the Income Tax Act. After the seizure, the respondent filed a writ petition in W.P.No.20083 of 2009 for Mandamus to direct the first appellant to forthwith release the gold jewellery weighing 9957.43 grams, which he imported after paying the Customs Duty thereon, which was seized from him at Anna International Airport in F.No.ADIT/A.I.U./2009-10.
7. The said writ petition was filed by one S.Manikandan son of K.Subramanian claiming himself to be the Power of Attorney Agent of the Respondent. In the affidavit filed in support of the writ petition, the petitioner therein claimed that the respondent had been doing business in gold jewellery in Singapore and that he had brought the jewellery into India as his stock-in-trade of business, which cannot be seized at all under the amended provisions of Section 131 of the Income Tax Act.
8. He
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