2023 (7) TMI 689 - HC - Income Tax

Unaccounted gold found in search - unaccounted investment - search and seizure, carried out u/s 132 - approval for release of the seized gold weighing 100.350 grams of the petitioner - HELD THAT - Admittedly, in the case of the petitioner, there is no demand remains outstanding or pending, for any of the liabilities referred to in the aforesaid provisions for any assessment year, after giving effect to the order of the Appellate Authority dated 25.02.2021. Therefore, merely, because, some demand is pending qua M/s. Anant Jewellers, it is not open to the Respondent-authorities to continue to withhold the gold, weighing 100.350 grams, which is of the ownership of the petitioner. Considering the provisions of Section 132B of the Act as well as the observations made in RAKESHKUMAR BABULAL AGARWAL 2022 (3) TMI 527 - GUJARAT HIGH COURT we are of the considered view that, since, the order passed by the Appellate Authority has attained finality, as the Respondent-authorities have not challenged the same before a higher forum, we are left with no other option, but, to accept the case put forth by the petitioner that the gold in question belongs to him and he had accounted the same in his books of accounts. Therefore, the Respondent-authorities ought not to have withheld the gold in question. Petition allowed. Respondent No. 1 is DIRECTED to grant approval for release of the remaining seized gold, weighing 100.350 grams, in favour of the petitioner, at the earliest.

Summary

Issues Involved:
1. Approval for release of seized gold.
2. Legality of withholding remaining seized gold.
3. Compliance with the order of the Appellate Authority.

Summary:

Approval for Release of Seized Gold:
The petitioner filed a petition under Article 226 of the Constitution of India, seeking the release of 100.350 grams of seized gold. The petitioner had filed an income tax return for the A.Y. 2018-2019, declaring an income of Rs. 11,53,400/-. During a search and seizure operation under Section 132 of the Income Tax Act, 1961, a parcel containing 720.34 grams of gold was intercepted and seized. The assessment proceedings under Section 153C added the value of the seized gold to the petitioner's income, treating it as an unaccounted investment. The petitioner appealed to the CIT(A)-11, Ahmedabad, which deleted the addition and ordered the release of the gold. Subsequently, 619.99 grams of gold was released, but 100.350 grams remained withheld.

Legality of Withholding Remaining Seized Gold:
The petitioner argued that there was no outstanding demand against him after the Appellate Authority's order dated 07.04.2021. Despite this, the remaining gold was not released due to a pending demand against M/s. Anant Jewellers, the sender of the gold. The petitioner contended that the Respondent-authorities had no right to withhold the gold as the order of the Appellate Authority had attained finality. The Respondent-authorities argued that the gold could not be released due to the pending demand against M/s. Anant Jewellers.

Compliance with the Order of the Appellate Authority:
The court noted that the Appellate Authority's order, which deleted the addition of the seized gold from the petitioner's income, had attained finality as it was not challenged by the Respondent-authorities. The court referred to Section 132B(1)(i) of the Act, which mandates the release of seized assets if there is no outstanding liability. The court also cited the decision in 'RAKESHKUMAR BABULAL AGARWAL VS. PRINCIPAL COMMISSIONER OF INCOME-TAX', which supported the petitioner's case for the release of the gold.

Judgment:
The court held that since there was no outstanding demand against the petitioner, the Respondent-authorities had no right to withhold the remaining 100.350 grams of gold. The petition was allowed, and the Respondent-authorities were directed to grant approval for the release of the remaining seized gold to the petitioner at the earliest. Rule was made absolute, and direct service was permitted.