All procedural steps under the Income Tax Act for seizure and subsequent recovery must be followed to uphold legality and fairness in tax enforcement.

The petitioner has approached this Court, being aggrieved by the fact that certain amount of money totalling to Rs.45,00,000/- (Rupees Forty five lakhs only) was seized from an employee of the petitioner has been requisitioned by the Income Tax Department under Section 132A of the Income Tax Act, 1961 and the said amount is being illegally retained by the Department.

2. It is the case of the petitioner that, he is a real-estate agent and the amount which was seized from the employee of the petitioner by the Railway police and produced before the Chief Judicial Magistrate Court, Thiruvananthapuram was, in fact, the amounts which had been collected from the various customers on behalf of the petitioner. It is the case of the petitioner that there was no occasion for the the Income Tax Department (the Commissioner of Income Tax) to issue any warrant of authorisation under Section 132A of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). It is submitted that, when the petitioner had earlier approached the Chief Judicial Magistrate Court, Thiruvananthapuram by filing a petition under Section 451 Cr.P.C., the amount was directed to be released to the petitioner and thereafter, on a petition being filed by the Income Tax Department under Section 482 Cr.P.C before this Court, the said order was set aside and the claim of the petitioner was directed to be reconsidered by the Chief Judicial Magistrate Court, Thiruvananthapuram after hearing the Income Tax Department also. It is submitted that, thereafter, orders were passed by the Chief Judicial Magistrate Court, Thiruvananthapuram, permitting the Income Tax Department to take possession of the currency, which was deposited in court. It is submitted that the conditions precedent for issuing a warrant of authorisation under of the Act are not attracted in this case. Learned counsel also places considerable reliance on the judgments of the Supreme Court in Commissioner of Income Tax, Allahabad and Others V. Vindhya Metal Corporation and Others [ 1997 (5) SCC 321 and J.R.

Malhotra and Another V. Additional Sessions Judge, Jullundur and Others [ 1976 (1) SCC 430 ] , in support of his contention. Learned counsel also places reliance on the judgment of the learned Single Judge of this Court in Ravirajan R. V.

State of Kerala [ 2023 KHC 619 ], to substantiate his case.

3. Learned Standing Counsel appearing for the Income Tax Department would submit that, at least, at the first instance, it is for the petitioner to file an application under Section 132B of the Act, for release of the currency, which is now in the custody of the authorities and it is only thereafter, he can approach this Court by filing a writ petition under Article 226 of the Constitution of India. It is submitted that, if such an application is filed, the matter can be considered by the competent authority, after affording an opportunity of hearing to the petitioner.

4. Learned counsel appearing for the petitioner would submit that the petitioner will make an application under Section 132B of the Act, before the competent authority and that application may be decided without further delay, considering the fact that the cash has been in the custody of the authorities for nearly four years. It is submitted that the contention taken in the writ petition may be left open to be raised again, if the decision of the competent authority is against the petitioner.

5. Having heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the Income Tax Department, this writ petition will stand disposed of, directing the Deputy Commissioner of Income Tax, Central Circle, Trivandum to consider and decide any application that may be filed by the petitioner under Section 132B of the Act, provided such application is filed before that officer within ten days from the date of receipt of a certified copy of this judgment. If the petitioner files an application as aforesaid, the same