2020 (12) TMI 935 - HC - Income Tax

Application u/s 132 (B) for release of 7kg of gold seized by the authorities - HELD THAT - There is a dispute on the factual aspects of the matter regarding ownership of the seized gold, the varying versions of the parties pertaining to the vouchers on the basis of which Respondent No.5 was carrying the gold bullion when he was apprehended, examination of evidence, regarding source of the 8kg bullion, the genuineness of the transaction etc. We also observe from impugned order as also confirmed by Counsel for Respondent No.5 that the said Respondent has filed appeal against the assessment order and that the said appeal is pending before the Commissioner of Income Tax (Appeals). Copy of the memo of the said appeal in Form 35 dated 11th January, 2019 has also been placed before this Court. In view of the pendency of appeal of Respondent No.5 before the CIT(A) Mumbai, who is the competent authority to render findings on the factual aspects of the matter, we do not deem it fit to interfere in the matter at this stage. Therefore, we decline to exercise our writ jurisdiction under Article 226 of the Constitution of India in view of pendency of the appeal before the CIT(A).

Issues Involved:
1. Legality of the impugned order dated 31st July 2019.
2. Ownership and release of 7kgs of gold seized by the authorities.
3. Inclusion of the 7kgs of gold in the assessment of Respondent No.5.
4. Pendency of appeal before the Commissioner of Income Tax (Appeals).

Detailed Analysis:

Legality of the Impugned Order:
The Petitioner sought to set aside the impugned order dated 31st July 2019, passed by the Principal Commissioner of Income Tax, which rejected the application for the release of 7kgs of gold seized from Respondent No.5. The Principal Commissioner concluded that the ownership of the gold bullion was not proven to be related to the Petitioner and that the gold was unaccounted for, as admitted by Respondent No.5.

Ownership and Release of 7kgs of Gold:
The Petitioner, a partnership firm engaged in trading gold jewellery, claimed ownership of 7kgs of gold seized from Respondent No.5, a job worker. The Petitioner argued that the gold was obtained from banks and issued to Respondent No.5 for job work. Respondent No.5 was apprehended with 8kgs of gold, including the 7kgs claimed by the Petitioner. The Principal Commissioner found inconsistencies in the statements and documents provided by both parties, leading to the conclusion that the ownership of the gold was not sufficiently proven.

Inclusion of 7kgs of Gold in the Assessment of Respondent No.5:
Respondent No.5 admitted that he could not produce valid documents for the gold, leading to its inclusion as unaccounted income in his assessment. The assessment order added the value of the seized gold to Respondent No.5's income as unexplained investment. Respondent No.5 filed an appeal against this assessment, which was pending at the time of the judgment.

Pendency of Appeal Before CIT(A):
The Court noted the pendency of Respondent No.5's appeal before the CIT(A), who is the competent authority to decide on the factual aspects of the case, including the ownership and source of the gold. Given the ongoing appeal, the Court declined to exercise its writ jurisdiction under Article 226 of the Constitution of India. However, the Court directed the CIT(A) to expedite the appeal process and decide the matter within three months from the date of receipt of the order.

Conclusion:
The petition was disposed of with a direction to the CIT(A) to decide the pending appeal expeditiously. The Court emphasized that the factual disputes regarding the ownership and source of the gold should be resolved by the CIT(A). No order as to costs was made. The order was to be digitally signed and forwarded to the parties.

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