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TMI Blog2008 (4) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit the same in the treasury and consequent to the decision of the case to be handed over to the appropriate person who would be entitled to the same. 2. A brief facts in a nutshell as alleged by the prosecution was that the police, Neemuch, Cantonment had on April 24, 2004 seized 123.233 kgs. of silver from Maruti van bearing registration No. RJ-01-5373 on suspicion of the goods being stolen property. The proceedings of seizure were undertaken by P. S. Neemuch, Cantonment under section 41/102 of the Criminal Procedure Code and an application by the petitioner, the Director of Income-tax, Bhopal as well as an application by M/s. Payal Selection and Company, Jodhpur was filed before the Chief Judicial Magistrate, Neemuch who ordered the handing over the custody of the seized silver to the Director of Income-tax and being aggrieved by this order dated May 29, 2004. Revision No. 64 of 2004 was filed by the respondent M/s. Payal Selection and Company before the Sessions Judge, Neemuch, who by the impugned order dated July 7, 2004, issued the directions to the Chief Judicial Magistrate to handover the silver to the treasury as mentioned above and being aggrieved the Director of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax Act is a special law, which has been enacted for a specific purpose of realization of taxes, due from the citizens. The provisions of a special law always override the provisions of a general law and under section 132A of the Act, the requisition officer would be the person entitled to seize assets. Relying on Union of India v. Judicial Magistrate (Eastern Railway) [1983] 140 ITR 553 (All) ; AIR 1983 All 553, learned counsel has stressed the fact that the court had in the said case held that it was not the function of the magistrate to embark upon an inquiry into the nature of the assets and ownership of the same in a summary way and when the Chief Judicial Magistrate had directed the delivery of the assets to the assessee, the court had on revision held that the order passed by the magistrate was erroneous and illegal and directed that the seized assets be handed over to the Income-tax Officer or the authorized officer. 7. To bolster his submissions, learned counsel relied on CIT v. Shri Ram Fibres Ltd. [2005] 272 ITR 562 (Delhi), Ibrahim Othayoth v. Sub-Inspector of Police [1998] 232 ITR 320 (Ker), Shikharchand Jain v. CIT [1983] 140 ITR 552 (MP), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d back by the Department after following the due procedure of law. 10. Learned counsel for the respondent-company, on the other hand has opposed the contention of learned counsel for the petitioner and stated that the seized assets were not in pursuance of any action taken by the Income-tax Department, since the employees of the respondent-company were merely returning with the silver from Ratlam Jewellers, Mandsaur where it was taken for executing the job work and the police had seized the silver under section 102 of the Criminal Procedure Code suspecting it to be stolen property which was also contrary to the facts and circumstances of the case. The respondent-company had made due application under section 451/457 of the Criminal Procedure Code for returning of the goods on supurdginama stressing that the time factor was an important aspect in the entire case; learned counsel for the respondent stated that the application was moved before the Chief Judicial Magistrate, Neemuch on April 26, 2004, thereafter, by the alleged authorization under section 132A of the Income-tax Act, the Income-tax Department also filed an application before the Chief Judicial Magistrate, Neemuch fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 132A of the Act; only if the seizure relates to pre-assessment stage its assessment was computed then the custody from the court could be obtained by the Department by filing application under section 226(4) of the Income-tax Act. 12. I find from the perusal of the said case that the apex court has refused to look into the question whether under section 132A of the Act "the court" would mean custody of the court also since the words in the section pertain to "officer" or "authority". The apex court clearly stated that it would not go into the question as to who may physically seize the assets since the situation had not arisen in the said case as the assessment had been completed. 13. Further, learned counsel for the petitioner relied on CIT v. Balbir Singh [1993] 203 ITR 650 (P H) whereby the High Court of Punjab and Haryana discussing the scope of power under section 132A of the Act held that the order in question can be issued only to an officer or authority and the order on requisition in respect of assets in custody of the court and when the court had issued an order to the Treasury Officer held that the refusal of the Treasury Officer to release the money held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court he may give custody thereof to any person on his executing a bond undertaking to produce the property before the court as and when required and to give effect to the further orders of the court as to the disposal of the same. There can be no transfer or appropriation of any property seized by the police except under the order of the court. Section 132A of the Income-tax Act, 1961, does not authorise any notice to the court as by no stretch of imagination can the court be identified as any officer or authority under any other law for the time being in force as contemplated under clause (c) of section 132A(1) read with clause (a) thereof. Held, (i) that the petitioners' rights under article 21 of the Constitution had been violated by the search and seizure of the properties as per the seizure list; (ii) Respondents Nos. 3 to 5 had acted contrary to law and in fact contravened laws in the course of search and seizure, and by changing the records of investigation had committed serious violation to the system of the discipline of law under which alone they were required to act; (iii) There was no occasion for respondents Nos. 4 to 6, namely, the Income-tax Officer in W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereas in the matter of Sadruddin Javeri [2000] 243 ITR 579 (AP) the order has been passed by the Division Bench of the Andhra Pradesh High Court that the order could not have been passed by the Chief Judicial Magistrate under section 132A of the Act since it is binding precedent under these circumstances and I am bound by the same. 17. Then, it would also be profitable to consider under these circumstances the case of CIT v. Balbir Singh [1993] 203 ITR 650 (P H) I find that the question has been considered whether an order on requisition under section 132A of the Income-tax Act can be issued to a "court" and not only to an "officer" or "authority" as prescribed under section 132A of the Act and whether the court would not amount to "officer or authority" in respect of section 132A of the Act and has still not been settled, since there are contrary views as already stated above. However, this court need not go into the controversy since it is dependent on the question whether the proceeding under section 102 of the Criminal Procedure Code would bar the filing of the application under section 132A of the Income-tax Act by the Department and whether the provisions of a special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these circumstances had affirmed the decision of the High Court in its writ jurisdiction. In the present case, the Commissioner of Income-tax was not in the possession of such information as to arrive to a conclusion that the silver pertains to undisclosed assets of the assessee. Moreover, silver was found in the possession of the employees of the respondent-company and neither the police nor the Commissioner of Income-tax had at this stage of the proceedings gathered any information on record regarding the ownership of the silver to dispute the version of the respondent-company. It was then fallacious on the part of the Chief Judicial Magistrate, Neemuch, to have entertained the application under section 132A of the Income-tax Act and directed the handing over of the seized silver/assets to the Department. 19. Thus, I find that the order of the learned Sessions Judge is in accordance with law and needs no interference. The petition is dismissed as sans merit. Stay granted earlier is vacated. The petitioner is directed to handover the silver in the court of the Chief Judicial Magistrate to comply with the directions issued by the sessions court by depositing the same in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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