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TMI Blog2016 (6) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, the court is of the view that the said apprehension can be allayed by calling upon the petitioner to file an undertaking to the effect that in case Shri Vinod Sen stakes such claim, the petitioner would indemnify the Department. The respondent is directed to forthwith refund the balance amount after adjusting the tax dues of the petitioner with interest (if any) in accordance with law subject to the petitioner filing an undertaking before this court that in the event Shri Vinod Sen stakes a claim to the seized amount, the petitioner should indemnify the Department in respect thereof - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 8508 of 2014 - - - Dated:- 3-5-2016 - MS. HARSHA DEVANI MR. G.R.UDHWANI JJ. For the Appellant: Mr. Hardik V Vora, Advocate Mr. Mr. Bhatt, Sr. Advocate with Mrs. Mauna M Bhatt, sr. For the Respondent: STANDING COUNSEL ORAL JUDGMENT (Per : Ms. Harsha devani) 1. By this petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the respondent to release the cash of the petitioner amounting to ₹ 15,84,020/- with interest forthwith. 2. The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withhold the excess cash after adjusting the tax liability once assessment and penalty proceedings are completed and the liability is determined. It was submitted that the liability has already been discharged which has been accepted by the respondent in the order under section 154 of the Act and hence, the excess cash of ₹ 15,84,020/- must be returned forthwith in view of the provisions of section 132B(3) of the Act. It was, accordingly, urged that the petition deserves to be allowed by granting the relief as prayed for therein. In support of his submissions, the learned advocate placed reliance upon the decision of the Punjab Haryana High Court in the case of Rajinder Kumar Verma v. Union of India, (2009) 181 Taxmann 215 (P H), for the proposition that where there is no dispute that the seized articles belonged to the petitioner and in fact, in the order passed by the Income Tax Officer itself, this fact has been acknowledged, and that even the person from whom the articles were seized took the same stand, in such a situation when there is no dispute about the title of the petitioner to the seized goods, the provisions of section 132B(3) cannot be applied. The court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the Act and that the Act does not give any discretion to the income tax authorities to deal with the seized/requisitioned assets in any other manner. 4.1 It was further submitted that efforts have been made to trace Shri Vinod Sen, who, since the date of the seizure, is not traceable and that his stated address with the Ernakulam Police is also not found to be the correct address. It was submitted that a request letter dated 3rd April, 2013 was sent by the Commissioner of Income Tax, Central, Ahmedabad to the Commissioner of Income Tax, Ajmer for centralizing the case of Shri Vinod Sen with Central Circle 2, Surat. However, upon verification by the field office of Bhilwara region, it was reported that no such village exists in the Bhilwara district and hence, they were unable to trace Shri Vinod Sen. It was submitted that the petitioner was requested to provide details of Shri Vinod Sen s whereabouts so that pending proceedings under section 153A of the Act could be completed; however, the petitioner has failed to produce any details, in the absence of which, the Department is not in a position to carry out and finalise the proceedings under section 153A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized. However, the record of the case reveals that on an application for rectification made by the petitioner under section 154 of the Act, the respondent has accepted the contention of the petitioner that the seized cash amount of ₹ 26,00,000/- was not considered while computing the tax liability. Accordingly, by an order dated 4th November, 2013 made under section 154 of the Act, the Assistant Commissioner of Income Tax has allowed credit of ₹ 8,84,040/- to the petitioner for the purpose of computing interest under section 234B considering an amount of ₹ 8,84,040/- (from the seized amount of ₹ 26,00,000/-) as paid under section 140A of the Act on 30th July, 2012 as return of income filed by the assessee for the year under consideration on 30th July, 2012. Interest under section 234B of the Act was charged on tax of ₹ 8,29,902/- from 1st April, 2012 to 30th July, 2012 which came to ₹ 33,196/- in place of ₹ 1,32,620/- as charged in the order under section 143(3) of the Act. Thus, the respondents have themselves treated the cash amount of ₹ 26,00,000/- as belonging to the petitioner and have adjusted the same against the demand r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inod Sen has also admitted that such cash belongs to the petitioner. Evidently therefore, there is no dispute as regards the title of the seized assets (cash). The respondent is, therefore, not justified in not releasing the balance amount to the petitioner on the ground that the cash had been seized from Shri Vinod Sen. Nonetheless, since the respondent has voiced an apprehension that the cash having been seized from Shri Vinod Sen, in case Shri Vinod Sen stakes a claim to the seized amount, the Department would be put in a precarious situation, the court is of the view that the said apprehension can be allayed by calling upon the petitioner to file an undertaking to the effect that in case Shri Vinod Sen stakes such claim, the petitioner would indemnify the Department. 9. For the foregoing reasons, the petition succeeds and is accordingly allowed. The respondent is directed to forthwith refund the balance amount after adjusting the tax dues of the petitioner with interest (if any) in accordance with law subject to the petitioner filing an undertaking before this court that in the event Shri Vinod Sen stakes a claim to the seized amount, the petitioner should indemnify t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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