9911796707
TMI Blog2010 (12) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... y were handed over to the IT Department only on 28th August 2009. On its part the IT Department admitted to thereafter having received both the gold as well as the Indian currency and admitted having issued the warrant of authorization under Section 132A of the IT Act. - 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 item – direction issued to release of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Act"), there was no authority to detain indefinitely the seized gold and Indian currency without issuing any show cause notice to the Petitioner. 4. On 22nd July 2009 the following order was passed by this Court: "1. On 11th July 2005 the Enforcement Directorate had conducted search under the Foreign Exchange Management Act, 1999 in the premises of the Petitioner located at 1326, 3rd Floor, Main Road, Chandni Chowk, Delhi and seized 6 kg. Gold and Indian Currency amounting to Rs. 1,49,000/-. 2. The Petitioner was compelled to file this writ petition in 2008 as the Respondents had failed to release 6 kg. of gold and Indian Currency though no violation of Foreign Exchange Management Act, 1999 was alleged and the seized material was not sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the Income-Tax Department. The Respondent-Enforcement Directorate will produce original files in this Court. Affidavit will be filed by the Respondents within four weeks. 6. List on 1st September 2009." 5. On the next date learned Standing counsel for the Income-Tax Department ("IT Department") appeared and she was furnished a copy of the paper book. Thereafter, the affidavit was filed by the Assistant Director of Income Tax (Investigation), Units VI(2), New Delhi dated 3rd December 2009. It was stated that by a letter dated 30th October 2007 the ED informed the IT Department that search had been conducted on 11th July 2005 at the business premises from where the gold bars and cash were seized. It is then stated that due to penden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice being issued to the person or persons from whom they have been seized. 7. After the petition was admitted it was listed for final hearing first on 13th September 2010 and then on 19th October 2010 and 28th October 2010. But on none of these dates was there any appearance on behalf of the Respondents. 8. On 22nd November 2010 the submissions of learned counsel for the Petitioner were heard but no one appeared on behalf of the Respondents. Notice without process fee was directed to issue to learned counsel for the IT Department as well as learned counsel for the ED, who had earlier appeared. They were also asked to be informed telephonically. The next date was fixed on 6th December 2010. Despite service of notice on learned Standi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the letter addressed to him was also not accepted in the office. It is claimed that the copy of the letter along with copies of purchase vouchers was also sent to the ED by speed post. In compliance with the summons issued by the ED, the Petitioner visited its office on 1st February 2006 and 15th February 2006. No communication was received thereafter. A reminder was sent on 21st August 2006. The Petitioner made a representation to the Secretary, Department of Revenue, Ministry of Finance on 26th September 2006 followed by a reminder dated 20th July 2007. 10. In the affidavit filed by the ED in this Court on 24th April 2009 it has been stated by the Assistant Director, ED that search of the premises of one Subhash Gupta was conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cash of Rs. 1,49,000/- again no legal justification has been shown by the ED. The case was simply referred to the IT Department for taking further action, nearly four years after the seizure. 13. It is not understood how, despite not issuing any legal justification for detention of the Indian currency amounting to Rs. 1,49,000/- and 6 kgs of gold, it was retained by the ED till 28th August 2009 i.e. for over four years. The affidavit dated 19th November 2009 filed by the ED admitted that 6 kgs of gold as well as the seized Indian currency were handed over to the IT Department only on 28th August 2009. On its part the IT Department admitted to thereafter having received both the gold as well as the Indian currency and admitted having ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
