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TMI Blog2011 (8) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... e direct that in case the petitioner furnishes security of Rs. 15 lacs, which will be other than cash and bank guarantee, the entire articles including hard disc, documents, jewelery, cash and FDRs seized and lying in the custody of the Income Tax Department shall be released within 15 days from the date the security is furnished, to the satisfaction of the A.O - Writ Tax No. 1614 of 2006 - - - Dated:- 12-8-2011 - Sunil Ambwani, Kashi Nath Pandey, JJ. S.D. Singh, Shubham Agrawal for the Appellant B.J. Agrawal and D. Awasthi for the Respondent JUDGEMENT We have heard Shri Subham Agarwal for the petitioner. Shri Dhananjai Awasthi appears for the department. On 04.5.2011 we had passed the following order:- "In pursuance to our direction on 10.3.2011 Shri Dhananjay Awasthi has produced two sealed envelopes containing the material for 'reason to believe' for conducting search and seizure operations; copy of the satisfaction note, warrants of authorisation and authorisation for survey. These documents are duly certified by Deputy Director of Income Tax (I and V)-1, Meerut. Both the envelopes will be resealed and kept in the custody of the Registrar Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned so far and that infact the FDRs of his father from out of the retirement dues were also seized and that when his father requested for their return he was not even given acknowledgment of his presence in the office and was not treated with respect due to senior citizen. Dr. Roop appearing in person also submits that CPU was seized along with hard disc. CPU has been returned but hard disc was retained. The copy of the hard disc given back to the petitioner was examined by experts. The entire clinical data was found missing. He states that there was no financial data in the hard disc. In this writ petition we are prima facie concerned with the validity of the search and seizure operation. Since a complaint has been made that seized articles have not been returned including hard disc, title deeds, fixed deposits, jewelery etc., on the admissions made on behalf of the department that nothing further is required to be done and that actual refunds have been allowed to the petitioner in respect of relevant assessment orders, we direct the department to immediately return all the seized articles described as above or any other article, which may have been seized and is stil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , title deeds, fixed deposits, jewelery etc. We had directed the assessments and the appellate orders to be brought on record by supplementary affidavit within a week. The department was directed to immediately return all the seized articles and any other articles, which may have been seized and are still retained within one week after receipt of the petitioner. Shri Dhananjay Awasthi has filed two applications. By the first application, the department is seeking privilege under Section 123 of Evidence Act, 1872 on the grounds given in paragraphs 5, 6 and 7 as follows:- "5. That the process of finalizing a search action is a detailed process were by the satisfaction note is put up by the Assistant Director of Income Tax (Investigation) before the Joint/Additional Director of Income Tax (Investigation). In case the superior authority is satisfied with the contents he records his own satisfaction and then it is forwarded to the Director of Income Tax (Investigation) who after examination records his own satisfaction and eventually the Director General of Income Tax (Investigation) gives his final approval, after this warrant of authorization for conducting searches are issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department has prayed for modifying the order or to recall it keeping in view of the interest of the revenue. It is further stated that if the High Court finds it necessary to release the seized article, the completion of administrative formality in coordination of various wings of the department may be taken into consideration and one month's time be granted to the department to comply with the order of the High Court dated 4.5.2011. Prima facie we find from the punchnama of the articles prepared that none of the articles or material may be required physically to be produced before the ITAT for the purposes of deciding the appeal. The copies of the documents and hard disk could be easily obtained in the presence and under signature of the petitioner. The department has already committed gross default of the provisions of Section 132-B (1) (i) providing in the first and second proviso and sub section (2) and (4) for release of the articles on application made by the persons from whom the articles have been seized, within 120 days from the date on which the list of the authorisation for search under Section 132 or for requisition under Section 132-A, as the case may be, was exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided by the ITAT against the petitioner the department cannot return the seized assets because the department does not have the power to divide the assets in proportion of the ITAT order also the department is filing appeal against the ITAT order regarding the gift of Rs. 8 Lacs received from Sri Sanjeev Juneja, hence it is prayed that for substantial justice and to balance the equity the assets of the petitioner are being retained. 5. That the present affidavit is being filed in order to demonstrate the bonafide of the respondent and to seek further directions in the present circumstances. 6. That the department has taken into cognizance the order dated 17.5.2011 and wants to comply the order in letter and spirit but after the order of the ITAT the department is constrained to return the seized assets as it is no longer possible or feasible to return the assets as major portion of the quantum have been decided in the favour of the department, hence it is prayed that the Hon'ble High Court may suitable modify the directions contained in order dated 17.5.2011 so as to meet out the current situation which has arisen after the ITAT order dated 1.7.2011. 7. That it is bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he validity of the search and seizure operations open; the proceedings pending before CIT (A) as well as the right of the petitioner to file appeal against the order of the ITAT, we direct that in case the petitioner furnishes security of Rs. 15 lacs, which will be other than cash and bank guarantee, the entire articles including hard disc, documents, jewelery, cash and FDRs seized and lying in the custody of the Income Tax Department shall be released within 15 days from the date the security is furnished, to the satisfaction of the A.O. So far as question of validity of search and seizure is concerned, since we have rejected the application for claiming the privilege, for disclosing the satisfaction note and warrant of authorisation, for conducting searches, the petitioner along with his counsel will be permitted inspection these documents produced in the Court and kept in the sealed cover in the custody of the Registrar General. The inspection will be carried out in presence of the counsel for the department. Learned counsel for petitioner may make an appropriate application to the Registrar General along with the certified copy of this order for inspection of the documents, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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