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TMI Blog2017 (12) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... original petitioner (hereinafter referred to as the petitioner) Mr. Pinakin Chandulal Jaiswal in person and learned advocate Mr. Varun K. Patel for respondent Nos. 1 and 2. 3. The appellant - original petitioner submitted that Special Criminal Application No. 1328 of 2009 came to be filed by the petitioner in which it has been pointed out that the respondent Income Tax Department carried out the search operation on 15.07.1976 at the residence and business premises of the petitioner and the respondent Department seized gold ornaments of 1318 grams. The petitioner filed WTA No.400 of 1982, ITA No.1596 of 1982 and ITA No.651 of 1983 before the Income Tax Appellate Tribunal. The Tribunal passed an order dated 29.09.1986 by which the WTA No. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore this Court was not only based on Section 452 Cr.PC but also covered Right to Property under the Constitution of India. The appellant - petitioner thereafter relied upon Section 132 of the Income Tax Act which empowers the Income Tax Officer to seize only undisclosed wealth or income. However, no power is granted to the respondent Department or its officer to seize declared wealth or income. It is therefore submitted that the Income Tax Department has seized declared gold ornaments during the search and therefore the said action of the respondent Department is ultra vires Section 132 of the Income Tax Act and such action has deprived the petitioner of his right to have property guaranteed under Article 300A of the Constitution of India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned advocate who has appeared before the learned Single Judge has restricted his submission qua prayer A only for the purpose of return of the gold ornaments. Thereafter, the learned Single Judge has granted liberty to the petitioner to prefer an application before the Department for return of the gold ornaments under the relevant provisions of the Act and direction was also given to the respondent Department to consider such an application as per the provisions of the Income Tax Act within stipulated time limit. Thus, there is no substance in the present appeal on merits also and therefore the same be dismissed. 8. Having heard the appellant and learned advocate appearing for the respondents and having gone through the material produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Appeal is not maintainable. Clause 15 of the Letters Patent provides as under: "15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction.- And We do further ordain that an appeal shall lie to the said High Court of Judicature at [Madras], [Bombay], Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of a revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naments in question which were declared in W.T. Returns of 1972-73 in 1974. With regard to the said submission, it is required to be noted that the learned Single Judge has granted liberty to the petitioner to prefer an application before the respondent Department for return of the gold ornaments under the relevant provisions of the Income Tax Act and while granting the said liberty, learned Single Judge has also directed the respondent Department to consider such application as per the provisions of the Income Tax Act. Thus, we are of the view that when the learned Single Judge has granted the liberty to the petitioner to submit an application before the respondent Department and the respondent Department is directed to consider the same, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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