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TMI Blog2010 (2) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... sake of convenience. 4. It is the case of the petitioner that section 132 proceedings were initiated on June 12, 2008, when the jewellery was seized. Section 132B enables the raided person to apply for the release of seized assets within 30 days from the end of the month in which the asset was seized. Accordingly the petitioner made an application to the Assessing Officer on July 23, 2008, stating that there were search proceedings under section 132 on June 12, 2008 and the jewellery belonging to her was seized. She has submitted in detail the evidence regarding the nature and source of acquisition of the said jewellery and requested to release the said jewellery as per the second proviso to section 132B(1)(i) i.e. within a period of 120 days from the date of such authorization. The petitioner has also stated that if the respondent requires any further information, respondent No. 1 should kindly let her know of the same. Not having heard anything from respondent No. 1, the petitioner addressed another letter to respondent No. 1 dated November 17, 2008 inviting attention to her earlier application dated July 23, 2008, for release of the jewellery and specifically drawing attent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. N. Soparkar, learned senior counsel appeared with Ms. NiyatiSheth, learned advocate appears in Special Civil Application No. 10915 of2009 on behalf of the petitioner. Mr. B. B. Naik, learned senior counselappears on behalf of respondent in all these petitions. 9. Mr. Shah and Mr. Soparkar, both have submitted that the Department's right of passing any adverse order is forfeited on expiry of 120 days mentioned in the second proviso to section 132B(1)(i) and, therefore, the impugned order which is hopelessly out of time and absolutely invalid, could not provide any excuse for not releasing the gold ornaments and jewellery within a period of 120 days. They have further submitted that this order could have some validity if the same would have been passed within a period of 120 days. They have further submitted that there was no existing liability under the Acts or the provisions of the Acts mentioned in 132B(1)(i). The petitioners have made application for release of jewellery with the proof of nature and source of acquisition of such jewellery within the time mentioned in the first proviso to section 132B(1)(i) of the Act and the second proviso provides that the jewellery on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Surat Peoples Co-operative Bank Ltd., were also seized on June 14, 2008. The last authorization under section 132 of the Act was issued on June 14, 2008. Since the material seized during search and seizure operation was not received by the Assessing Officer with an appraisal report of the officer in charge of the search and seizure operation, the application was forwarded to the Deputy Director of Income-tax (Investigation), Unit-III, on July 29, 2008. The said Assistant Director of Income-tax considered the said application and after recording reasons in detail found that the ornaments cannot be released and a detailed note in this behalf was prepared by him on August 1, 2008. 12. Mr. Naik further submitted that search and seizure operation under section 132 of the Act was centralized by the Commissioner of Income-tax-I, Surat, by passing an order under section 127 of the Act on October 21, 2008, for release of the ornament. The Assistant Commissioner of Income-tax, Central Circle-1, Surat, received the record of the petitioner from the Deputy Commissioner of Income-tax, Circle-1 Surat, on December 26, 2008, as the case was assigned to him by the Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to recover the tax, which might be leviable upon the assessee in the assessment made under section 153A of the Act, then also, the same cannot be released to the petitioner. 15. Mr. Naik further submitted that the petitioner during the course of survey, failed to explain the nature and source of jewellery found in the premises of the petitioner in terms of the wealth-tax return and valuation report and, therefore, the search team decided to seize the unexplained part of the jewellery for verification at the time of assessment proceedings. The search of ornaments was made with due consent of the petitioner and by properly explaining the provisions of the Act to the petitioner. He has, therefore, submitted that the petitioner is not entitled to any relief, much less the relief as prayed for by the petitioner in the present petition. 16. Mr. Naik also invited the court attention to the note prepared by the Additional Director of Income-tax (Investigation)-III, Surat on August 1, 2008. The Additional Director in the said note observed that the assessee had made an attempt to explain the nature and source of acquisition of the seized gold ornaments and jewellery by classifying i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed procedure is prescribed under section 132B(1)(i) of the Act. Out of such seized assets, the amount of the existing liability or the amount of the liability determined on the completion of the regular assessment or reassessment including any penalty levied or interest payable in connection with such assessment or reassessment is required to be recovered. The first proviso of this section enables the assessee to make an application within 30 days from the end of the month in which the asset was seized. For release of the assets the assessee is required to explain the nature and source of acquisition of such assets to the satisfaction of the Assessing Officer. On such satisfaction and with the prior approval of the Chief Commissioner the Assessing Officer is empowered to release the asset to the person from whose custody the assets were seized. The second proviso to this section makes it clear that the assets are required to be released within a period of 120 days from the date on which the last of the authorizations for search under section 132 or for requisition under section 132A, as the case may be, was executed. 19. Considering the above provisions, the petitioner made an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The ratio of the said decision would squarely cover the present case and in all these cases the respondent authorities have retained the seized assets beyond the period of 120 days. The orders passed by the respondent authorities beyond such period are of no consequence and they are not tenable at law. 20. In the above view of the matter, all these orders which are challenged in the present group of petitions retaining the assets beyond the period of 120 days are hereby quashed and set aside and the respondent authorities are directed to release the gold ornaments and jewellery seized by them during the course of search and seizure operation forthwith and in any case not later than two weeks from the date of receipt of the writ of this court or from that date of receipt of the certified copy of this order, whichever is earlier. 21. Since we have decided the legal issue in this group of petitions, the discussion of facts of other petitions is not required. The ultimate conclusion drawn and finding arrived at by us equally applies to all other petitions. 22. With these directions and observations all these petitions are accordingly allowed to the aforesaid extent. Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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