9911796707
TMI Blog2010 (12) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ld and Indian currency in the sum of Rs. 1,49,000/- were seized. A copy of the panchnama dated 11th July 2005 has been enclosed. It is submitted that thereafter, despite numerous representations of the Petitioner for release of the gold as well as the Indian currency, there was no response from the ED. The Petitioner contends that the seizure was illegal since Section 3 of the Foreign Exchange Management Act, 1999 ("FEMA Act") permits seizure only of foreign exchange. In other words, it is submitted that officers of the ED had no authority to seize either gold or the Indian currency. Despite the passage of over four and half years since then not even a show cause notice has been issued to the Petitioner. 3. It is further submitted that alth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pparent that the reminder was sent after copy of this writ petition was served on the Enforcement Directorate. 4. Learned counsel for the Enforcement Directorate states that Income-Tax Department had issued notice dated 20th July 1999 with the warrant of authorization under Section 132A of the Income-Tax Act, 1961 requisitioning 6 kg gold bars. 5. Issue notice to the Standing Counsel for the Income-Tax Department to explain why they had delayed issue of notice. The Respondent-Enforcement Directorate will also file an affidavit in this Court explaining and stating whether provisions of the Income-Tax Act, 1961 were complied with to retain the seized material in accordance with law. The Respondent-Enforcement Directorate will also explain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued on 17th July 2009 by the Director of Income Tax (Investigation). On the execution of warrant of authorization on 20th July 2009, six gold bars weighing 6 kgs were handed over to IT Department on 28th August 2008. Cash amounting to Rs. 6,99,000/- was also handed over to the IT Department on 31st August 2009. However, the documents requisitioned from the ED were not handed over to the IT Department. 6. However, what action is proposed to be taken by the IT Department is not clear from the above affidavit. It must be recalled that the seizure of both the gold and cash took place way back on 11th July 2005 and for over five years now even no show cause notice has been issued to the Petitioner. This Court has not been shown the lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i.e. Rs. 1,49,000/- seized from the Petitioner"s business premises and Rs. 5,50,000/- seized from Mr. Tulsi Bhai) was handed over by the ED to the IT Department on 31st August 2009. As regards the business premises of the Petitioner, the presence of Shri Shankar Lal Goel as well as the Petitioner who happens to be his brother is shown. The Panchnama has been signed by Shri Shankar Lal Goel in the presence of the witnesses. The panchnama also shows the seizure of the six bars of gold and cash of Rs. 1,49,000/-. A copy of the letter dated 19th July 2006 written by the Petitioner Gauri Shankar to the Assistant Director, ED has been placed on record in which the Petitioner claims to have visited the office of the ED on 20th July 2005 with purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it proceeds to state in para 5 of the affidavit as under: "5. That no case in respect of seized six kg. of gold was made out. That during the course of the seizure Shri Gauri Shankar Goyal brother of Shri Shankar Lal Goyal was also present." 11. It is then stated in para 6 as under: "6.That Directorate of Enforcement referred the matter of seizure of six kg gold bars to the Income Tax Department vide letter dated 30th October 2007 for taking such action as deemed fit. That the Income Tax Department was again intimated about the seizure for taking such action as deemed fit vide letter dated 28th May 2008." 12. What is clear from the above affidavit is that admittedly there was no legal justification for seizing the 6 kgs of gold from the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for Respondents, none has appeared. In the circumstances, the only conclusion that can be drawn is that the Respondents do not have a valid explanation for continuing to detain the 6 kgs gold bars and cash in the sum of Rs. 1,49,000/- seized from the business premises of the Petitioner on 11th July 2005. 16. A perusal of Section 37 of the FEMA reveals that it cannot be invoked to seize Indian currency. The ED had itself admitted before this Court that there was no basis for seizure by the ED of the 6 kgs of gold. As far as Section 132A of the IT Act is concerned, it does not permit indefinite detention of the seized items by the IT Department without even issuing show cause notice to explain the legal basis of detention of the seized i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
