9911796707
TMI Blog1999 (12) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... with the writ petition vide exhibits 1(A) to 1(M). It is further submitted that he had taken a loan of Rs. 4,77,000 on June 6, 1986, from Chordia Gems as per the books of account maintained by R. S. jewellers which amount was withdrawn in cash by the petitioner's munim, Shri Jagan Nath Bhalla, from the bank accounts on the dates mentioned in the petition and as per the certificates of the bank attached as annexures 4, 5, 6 and 7. It is stated that the relevant entries had also been made in the cash books of different amounts withdrawn on this account. This amount is said to have been handed over along with import documents to one Shri Kanti Kumar Dugar, respondent No. 6, a broker and resident of Kothari Bhawan, Jaipur, for making remittance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted raids on the business premises of Duggar Exim Linkers, a partnership concern of respondent No. 6, the books of account and documents were seized including the documents in regard to the transaction in hand. It is stated that the statement of the petitioner was also recorded and the petitioner had informed and confirmed the position as stated above. It is the case of the petitioner that out of the sum so seized, it included the amount of Rs. 4,77,000 of the petitioner for the purpose as mentioned above which was being held by Shri K. K. Dugar on behalf of the petitioner firm. The explanation of respondent No. 6 was also asked as required under section 127 of the Income-tax Act by respondent No. 4. In view of the abovesaid circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents in not returning the amount of Rs. 4,77,000 to the petitioner was not in accordance with law and challenges the order passed under section 132(5), section 132(4) of the Act read with rule 112A of the Rules to be illegal. It is further submitted that it was incumbent upon the officer concerned to have afforded an opportunity of hearing to the petitioner before passing the order or during the enquiry and the authorities should have recorded the statement of the petitioner as well and a prayer has been made for quashing the order dated October 16, 1986, and to return the amount of Rs. 4,77,000 out of the seized amount of Rs. 5,12,800. No one appears on behalf of the respondent-Income-tax Department. From a perusal of the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the court and I may not be wrong to say that the Department has completely failed to look into its interest in prosecuting the case. Left with no alternative when no one is appearing in the case and the case is already a part heard matter ; the records have not been produced and counsel engaged by the Department has no instructions, I have no option but to decide the case which is pending right from 1987 on the material available in the writ petition with the assistance of counsel for the petitioner. A written statement has been filed on behalf of respondent No. 2, Commissioner of Income-tax. It is stated in the written statement that the averments made by the petitioner are to be proved on record. It is further submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong to the person from whom they were seized, it would be open to him to take proceedings under section 132(5) against that third party who made the claim instead of the person from whom the goods were seized. In the case of K. A. Karim and Sons [1984] 149 ITR 172 (Ker), it was held that the functions of the Income-tax Officer are quasi-judicial and his action should be bona fide and in consonance with the principles of natural justice. One of the rules of natural justice is that no decision shall be given against a party without affording him reasonable opportunity of hearing. Some amount was seized by the Enforcement Directorate during a search from the residence of K, who was the managing partner of a firm. Proceedings were started aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Officer under section 132(5) was, therefore, liable to be quashed." Yet in another judgment relied on by the petitioner in the case of Vindhya Metal Corporation v. CIT [1985] 156 ITR 233 (All), it was held in the circumstances of the case that : "(i) that the mere fact that V was in possession of a huge amount of cash and did not have documents regarding its ownership and the fact that his name was not found in the list of income-tax assessees could not be treated as sufficient information leading a reasonable man to the inference that the amount would not be disclosed for income-tax purposes. The conditions precedent for the exercise of power under section 132A was lacking and the order made under it was liable to be quashed ; (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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