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TMI Blog1984 (4) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... ornaments, rods, etc. The petitioner's case was that he had given the silver to the bullion dealer the same day at about II in the morning for testing its purity with the intention to sell. The petitioner's case further was that he was asked by the bullion dealer to leave the silver at his place and come a little later so that the testing may be done and the price determined. When the petitioner went to the place of the bullion dealer after some time as required, he noticed that there was an income-tax raid and he could not get back the silver given by him to the bullion dealer, for it had also been seized. He made an application for the release of the silver to the Commissioner of Incometax, Allahabad, on December 28,1980, and to the Income-tax Officer (B Ward), Varanasi, on April 25, 1981. Subsequently, he made an application to the Income-tax Assistant Commissioner (Assessment), Varanasi, on July 3, 1982. His stand further was that the order passed under section 132 of the Incometax Act, 1961, dated January 29, 1981, by the Income-tax Officer (B Ward), Varanasi, was bad in law as the silver weighing 7.660 kg. belonged to him and not to the bullion dealer. On behalf of the Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince we have heard the learned counsel for the petitioner on merits, we proceed to decide the case on merits. The first question for consideration is as to the scope of section 132(5) and (7) of the Act The relevant provisions of section 132(5) and (7) read as follows : "(5) Where any money, bullion, jewellery or other valuable article or thing (hereafter in this section and in sections 132A and 132B referred to as the assets) is seized under sub-section (1) or sub-section (1A), the Income-tax Officer, after affording a reasonable opportunity to the person concerned of being heard and making such enquiry as may be prescribed, shall within ninety days of the seizure, make an order, with the previous approval of the Inspecting Assistant Commissioner,- . . ......... and retain in his custody such assets or part thereof as are in his opinion sufficient to satisfy the aggregate of the amount referred to in clauses (ii) and (iii) and forthwith release the remaining portion, if any, of the assets to the person from whose custody they were seized : ..... .. Provided further that where a person has paid or made satisfactory arrangements for payment of all the amounts referred to in clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aggregate of the amounts calculated under clauses (ii) and (iia). The second proviso stipulates that where a person has paid or made satisfactory arrangements for the payment of the amount referred to in clauses (ii), (iia) and (iii) or any part thereof, the Income-tax Officer may, with the previous approval of the Commissioner, release the assets or such part thereof as he may deem fit in the circumstances of the case. It is apparent from the above that after the search and seizure had been made in accordance with law, a duty is cast on the authorised officer to make an order within 90 days of the seizure after making an enquiry and affording an opportunity of being heard to the person from whom the offending goods were seized. The aforesaid order should comply with the requirements of clauses (i) (ii), (iia) and (iii) of sub-section (5) of section 132 of the Act. Section 132(5) pertains to the seizure of goods of the person against whom the search was contemplated under section 132(1) of the Act. It has nothing to do with the goods of a third party. As a matter of fact, the goods of a third party do not come within the ambit of section 132(5) of the Act. Sub-section (7) of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect. We find force in the above contention raised by the learned counsel for the Revenue. In the case of Dharangadhra Chemical Works Ltd. v. State of Saurashtra [1957] AIR 1957 SC 264, the question was whether the relationship between the parties was one as between an employer and an employee or between master and servant. Their Lordships held that that was a pure question of fact. The decision of the Tribunal on a question of fact is not liable to be questioned in proceedings under article 226 of the Constitution, unless it is shown that the finding is wholly unsupported by any evidence. In the case of Nagendra Nath Bora v. Commr. of Hills Division, AIR 1958 SC 398 (headnote), their Lordships laid down that "one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law apparent on the face of the record and not every error either of law or fact". It was further laid down that a writ petition under article 226 of the Constitution does not take the place of an appeal. Its purpose is only to determine on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found that the bars of silver belonged to M/s. Chetmani Enterprises. There was no finding that these bars of silver did not belong to M/s. Chetmani Enterprises but to someone else. The finding arrived at by the Income-tax Officer was based on a consideration of the relevant evidence on the record. In view of the above finding, the Income-tax Officer was not required to go into the question whether the seized goods belonged to the petitioner. That question would have arisen if on the basis of available evidence on the record, the Income-tax Officer came to the conclusion that the silver bars did not belong to M/s. Chetmani Enterprises but belonged to someone else, viz., the petitioner. In that event the Income-tax Officer could proceed under section 132(7) of the Act and follow the procedure laid down in section 132(5) of the Act against the petitioner. If he was otherwise satisfied that the silver bars belonged to the petitioner, he could also have passed an order for its release but those considerations would only arise if there was a finding that the silver bars did not belong to M/s. Chetmani Enterprises. Since the finding in the case on the basis of the relevant evidence was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons other than those from whose premises the goods were seized. The other expression "objects for any reason to an order made under sub-section (5)" shows that an order made under sub-section (5) of section 132 of the Act could be agitated for any reason by a person who felt aggrieved. It is, therefore, apparent that the petitioner had an alternative remedy by filing an objection before the appropriate appellate authority within the time provided by law. He had not availed of that opportunity and instead he had filed this writ petition in this court. On this ground, his writ petition is not maintainable. It is well settled that if there is an alternative remedy, the High Court may refuse the grant of relief. In the case of C. A. Abraham v. ITO [1961] 41 ITR 425 (SC), it was laid down that the petitioner could not be permitted to invoke the writ jurisdiction of the High Court when he had adequate remedy open to him by an appeal under the Act. The argument was that if there was a violation of the principles of natural justice, the existence of an alternative remedy was not a bar to the issue of writ. It is well settled that the High Court in exercise of its powers under article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on concerned" in section 132(5) can refer only to the person against whom a warrant is issued and not the person who was in actual possession. The person who was in physical possession of the asset and from whom the actual seizure was effected ought to have been given an opportunity of being heard under the principles of natural justice. This contention is not acceptable to us for the reason that in the present case, it was not established that the petitioner was in physical possession of the silver bars and the actual seizure was effected from him. The finding is that it was seized from the premises of Chetmani Enterprises and not from the petitioner. Consequently, the question of giving an opportunity to the petitioner did not arise. Reference was also made to the case of Gita Devi Dhurka v. ND [1977] Tax LR 722 (Mad) by the learned counsel for the petitioner. It was held in that case that if the Income-tax Officer was prima facie of the view that when notice under rule 112A was issued, the seized goods did not belong to the person from whom they were seized, it would be open to him to take proceedings under section 132(5) against the third party who made the claim instead of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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