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TMI Blog2021 (8) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... ates. Respondents Through: Mr. Arnav Kumar, Advocate for R-1. Mr. Zoheb Hossain, Senior Standing Counsel with Mr. Pivul Agarwal and Parth Semwal, Junior Standing Counsel for revenue RAJIV SHAKDHER, J. (ORAL): [Court hearing convened via video-conferencing on account of COVID-19] 1. The substantive prayers made in the writ petition are as follows: - (i) Pass and issue an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction directing the Respondents to release the jewellery and cash seized by the Respondents from the Locker on 03.01.2018; (ii) Pass and issue an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction directing the Respondents and Income Tax Department to decide the appeals in a time-bound manner and expeditiously; 2. On the previous date i.e., 13.08.2021, we had, after hearing the learned counsel for the parties, at great length, captured the contours of the dispute, which arose for consideration, in the instant matter. 2.1. In order to avoid prolixity, and for the sake of convenience, the relevant part of the order dated 13.08.2021 is set forth hereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondents/revenue, says that, the two provisos appended to Section 132B(1)(i) of the Act, have to be read literally, i.e., the application had to be made to the AO, who had to then satisfy himself, as regards the extent of existing liability, and only, thereafter, could an order have been passed one way or the other. 2.7. In other words, it is Mr. Hossain s submission that, since the application dated 09.02.2018 was addressed to the Principal Director of Income Tax (Investigation) -1, the application was not viable in law, and therefore, no right whatsoever could be said to have emerged in the favour of the petitioner based on the second proviso to the said Section, i.e., Section 132B(1)(i) of the Act. 2.8. It is relevant to note that, Mr. Vashisht, in support of his submissions, has relied upon the following judgments: (i) Mul Chand Malu (HUF) v. Assistant/Deputy Commissioner of Income-tax, [2016] 69 taxmann.com 437 (Gauhati). (ii) Nadim Dilip Bhai Panjvani v. Income Tax Officer, Ward no. 3, [2016] 66 taxmann.com 124 (Gujarat). 2.9. Likewise, insofar as Mr. Hossain is concerned, he relied upon a judgement of the Division Bench of the Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner claims that the weight of the jewellery seized is 1950.47 grams. [See Annexure P-20, which is appended on page 129 of the paper book.] Thus, as is evident, as far as the weight of the jewellery is concerned, the difference is small. 4. Given the aforesaid circumstances, we are of the view that, there is weight in the submission of Mr. Vashisht that the provisions of Section 132B of the Act get triggered, once the period of 120 days from the date of the last of the authorisation for search under Section 132 of the Act expired. In this case, though the application was made by the petitioner for the release of her jewellery, which was seized, within the stipulated timeframe, it was directed to the Principal Director of Income Tax (Investigation)-1, with a copy to, amongst others, the Deputy Commissioner of Income Tax, Circle-14(1), who was deployed in the same circle [i.e. circle 14] where the AO was positioned. 4.1. In this context, the submission of Mr. Hossain, as noticed above, is that, the application, dated 09.02.2018, was not addressed to the AO, and hence, was not viable in law. In our view, in the facts and circumstances of this case, this submission cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he total demand would scale up to ₹ 7,53,55,008/-. The value of the security, according to the respondents/revenue [which includes jewellery worth of ₹ 6, 51,49,568/- and cash amounting to ₹ 54,74,000/-], is ₹ 7,06,23,568/-. 5.3. It is pertinent to note that, the petitioner i.e., the assessee has preferred appeals in respect of the assessment orders passed visa-vis AYs 2018-2019 and 2015-2016. These appeals, we are told, are pending adjudication before the Commissioner of Income Tax (Appeals). 5.4. Given the fact that the respondents/revenue had enough in the form of security, it did not deem it necessary to seek recovery of the aforementioned outstanding demand, although, the application for stay moved by the petitioner was rejected. [See Annexures P-39 and P-40, which are appended on pages 178 and 190 of the case file.] 6. Thus, having regard to the aforesaid, we are of the view that, the offer made by Mr. Vashisht to furnish security in the form of unencumbered immovable property and cash, accompanied by an undertaking of the petitioner that she would not part or create third party rights in the jewellery, [if released], to allay the appreh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order, dated 13.08.2021. 4. Therefore, this writ petition is disposed of, in terms of the directions contained in paragraph 6.1 (i) to (iv) of our order, dated 13.08.2021. Consequently, the pending application shall also stand closed. 5. Needles to add, the parties will act with due expedition, in terms of the directions contained in the order dated 13.08.2021, though, not later than six weeks from the date of the receipt of the copy of this order. Insofar as the pending appeals are concerned, it is expected that they will be disposed of, at the earliest, as this would be the interest of the petitioner/assessee, as well as the respondents/revenue. ------------------ Notes: 1. 6. Moreover, it must be remembered that there is no presumption that every person knows the law. It is often said that everyone is presumed to know the law, but that is not a correct statement: there is no such maxim known to the law. Over a hundred and thirty years ago, Maule, J., pointed out in Martindale v. Falkner [(1846) 2 CB 706 : 135 ER 1124] : There is no presumption in this country that every person knows the law: it would be contrary to common sense and r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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