9911796707
TMI Blog1980 (10) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... e President of India promulgated the Voluntary Disclosure of Income and Wealth Ordinance, 1975. The Ordinance, was subsequently replaced by the Voluntary Disclosure of Income and Wealth Act, 1976 (8 of 1976) (hereinafter referred to as " the Act "). The petitioner filed voluntary returns as per ss. 14(1) and 15 of the Act. She also filed the necessary declarations in Forms B and C to the Commissioner of Incometax, Tamil Nadu-V. The petitioner paid a sum of Rs., 3,11,740, being the tax thereon as provided under s. 5 of the Act, i.e., 50% before March 31, 1976, and the balance on April 19, 1976. The petitioner also informed the Asst. Collector of Central Excise, Pondicherry, and forwarded to him extracts of the entry in G.S. 10 regarding the gold and gold ornaments owned or possessed by her and declared under the Act. The petitioner further complied with all the formalities required under s. 16A of the. Act. The petitioner then requested the Deputy Director of Inspection, I.T., to release the gold and gold jewellery seized from her premises. On December 18, 1976, the Deputy Director of Inspection wrote to the petitioner that the gold and gold jewellery would be released on January 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Disclosure Scheme could not be deemed to be a declaration under the Gold (Control) Act. In view of the fact that the gold had been discovered and seized long prior to the commencement of the Act, there can be no disclosure. On September 3, 1972, the Central Excise Range Officer, Chidambaram, who had associated himself with the seizure made by the I.T. authorities, sent a report to the Assistant Collector of Central Excise of what took place at the time of seizure. The Asst. Collector of Central Excise instructed the range officer on September 8, 1972, to record a statement from the party. The Range Officer, Chidambaram, informed the Asst. Collector that the party had already made a statement direct to the Asst. Collector. In view of this proceeding, which had been initiated by the central excise authorities, the petitioner could not claim immunity from the provisions of the Gold (Control) Act and the Customs Act. In these circumstances, it is submitted that the petitioner is not entitled to the issue of a writ of mandamus. Mr. K. Srinivasan, the learned counsel for the petitioner, made the following submissions. There was a search and seizure of the petitioner's premises on Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. (3 The petitioner had not complied with s. 16A of the Act and had not made a declaration as contemplated under s. 16A of the Act. (4) The gold and gold jewellery had been seized under the Gold (Control) Act by the I.T. authorities prior to the declaration made by the petitioner under the Act. Consequently, the case fell under s. 16(5) of the Gold (Control) Act and, therefore, the petitioner's claim for immunity could not be countenanced. Even otherwise, the central excise authorities had associated themselves with the I.T. authorities in the search and seizure conducted on September 3, 1972. Therefore, the seizure must be deemed to have been made by the central excise authorities also. The range officer having made a report to the Asst. Collector, Central Excise, and the latter having asked the range officer to get a statement from the petitioner would show that some other proceeding had been initiated prior to the voluntary disclosure said to have been made by the petitioner. In the circumstances, the petitioner will not be entitled to the immunity claimed by her in view of s. 16(5) of the Gold (Control) Act. It is admitted by the first respondent, the Commissioner, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t own, possess or control the gold and gold jewellery in respect of which she had made the voluntary disclosure since as on that date the gold and gold jewellery had already been seized by the I.T. Dept., has no substance and has to be overruled. In W.P. No. 3710 of 1977 (P. P. Kanniah v. ITO [1981] 129 ITR 414 (Mad)), I have held that till the I.T. authorities exercised the power of sale conferred on them under S. 132B(1)(iii) and sold the gold and gold jewellery seized under s. 132 of the I.T. Act, it could not be said that the gold and gold jewellery had ceased to be the property of the person from whom they had been seized. In other words, I have held that till the power of sale is exercised by the I.T. authorities, the gold and gold jewellery could only be said to be under distraint in the hands of the I.T. authorities. Therefore, from the mere fact that the gold and gold jewellery had been seized in 1972, long prior to the promulgation of the Act, it could not be said that the petitioner could not have made any voluntary disclosure as provided under the Act. Further, when once the first respondent has accepted the disclosure made by the petitioner and passed appropriate order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be, is or are declared in the form prescribed under subsection (1), and in the manner specified in sub-section (8), of that section before the 1st day of February, 1976. (ii) where the gold is primary gold, such gold is either sold to any licensed dealer under intimation to the Gold Control Officer of the rank of an Assistant Collector of Central Excise or of Customs before the 1st day of February, 1976, or is made into ornaments and a declaration in this behalf is made in the form prescribed under sub-section (1), and in the manner specified in sub-section (8), of section 16 of the Gold (Control) Act, before that day." From the above, it can be seen that s. 16(1)(A) applies in the case of licensed dealers and s. 16(1)(B)(i) and (ii) applies in all other cases, and in order to get immunity from penalty, prosecution, etc., under the Customs Act and the Gold (Control) Act, a licensed dealer should satisfy the following conditions: (1) he must have made a voluntary disclosure of his income under s. 3(1) and his wealth under S. 15(1) of the Act. (2) The gold in respect of which the declaration is made must be owned, possessed or controlled by him in his capacity as a licens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is, therefore, seen that in order to get immunity from the penal provisions of the Gold (Control) Act, it is necessary for a person who takes advantage of the Act not only to make a declaration under s. 16 of the Act but also comply with the requirements of the Gold (Control) Act, that is to say, he or she will have to make a declaration in accordance with s. 16(8) of the Gold (Control) Act. Rule 4 of the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968, reads as follows: " 4. (1) The declaration or further declaration, referred to in section 16, shall be in Form No. G. S. 3. (2) The register referred to in sub-section (9) of section 16 shall contain the following particulars, namely: 1. Serial number. 2. Date of receipt of the declaration. 3. Name and address of the person making the declaration. 4. Quantity of gold declared (including previous declaration, if any). " Form No. G. S. 3 prescribed says that the form is only intended for being used by persons other than licensed dealers. The learned Central Government standing counsel was not able to draw my attention to any prescribed form which has to be used by a licensed dealer for making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income and Wealth Scheme, 1975 regarding ". The letter was addressed to the petitioner's son, Balasubramanian. The letter acknowledged Balasubramanian's letter furnishing an extract of the entries of voluntary disclosure statement. It further stated that as per the Govt. of India press note, Balasubramanian was required to take into account as dealer the primary gold and make necessary entries as receipt in the dealer's account. A copy of the letter was also forwarded to the Range Officer, Chidambaram, for information and necessary action. This was followed by communication C.No. XVII/ 14/2/76 G.C. 11 dated June 26, 1976, addressed to the Range Officer, Chidambaram, with a copy marked to the petitioner's son, Balasubramanian. It called the attention of the range officer to the letter dated May 28, 1976, and further called upon the Range Officer, Chidambaram, to submit the required report. In the copy marked to Balasubramanian he was asked to report whether the primary gold had been accounted for as receipt in the dealers' account or not. From the register placed before me by the learned counsel for the petitioner, it was evident that on July 16, 1976, the central excise authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... books of the petitioner, it could not be said that a proper declaration had been made by the petitioner. The entire argument of the learned counsel, in my opinion, is misconceived. The petitioner's son, Balasubramanian, had forwarded the extract of G.S. 10 to the Asst. Collector of Central Excise, Pondicherry, as early as on January 5, 1976. The forwarding letter clearly stated that the entry in G.S. 10 included the gold and gold jewellery declared by the petitioner as owned and possessed under the Voluntary Disclosure Scheme of 1975 before the first respondent. It is not disputed that the Asst. Collector of Central Excise, Pondicherry, was the Gold Control Officer within the meaning of the Gold (Control) Act. The Asst. Collector of Central Excise, Pondicherry, took follow up action on the letter dated January 5, 1976, sent by Balasubramanian and directed him to bring 335 gms. of primary gold in the dealers' account. He also directed the Range Officer, Chidambaram, to verify whether the necessary entries have been made in the books of the petitioner. The Range Officer, Chidambaram, inspected the books and in token thereof has initialled the same. It is also not disputed and it can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of s. 16(5) of the Act. The first limb of Mr. Balasubramaniam contention based on s. 16(5) is that the gold had been seized under the Gold, (Control) Act before the petitioner made a declaration under ss. 3(1) and 15(1) of the Act. The argument of Mr. Balasubramanian is that the search and seizure was made jointly by the I.T. Dept. as well as the central excise authorities and since both the authorities could not retain possession of the seized gold and gold jewellery, the possession was handed over to the I.T. authorities. This argument is based on the fact that range officer of Central Excise and an Inspector of Central Excise assisted the I.T. authorities at the time of search and seizure of the gold and gold jewellery on September 3, 1972. Section 58 of the Gold (Control) Act states that any Gold Control Officer authorised in this behalf by the Administrator may, if he has any reason to suspect that any provision of this Act has been, or is being, or is about to be contravened, enter and search, at any reasonable time, any refinery or the business premises of a licensed dealer or a certified goldsmith, and any Gold Control Officer, not below the rank of a Superintendent of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y virtue of s. 16(5) of the Act. The second limb of the contention of Mr. Balasubramanian based on s. 16(5) of the Act is that at the time the voluntary disclosure was made, proceeding under the Gold (Control) Act was pending before the gold control authorities. This contention has only to be stated to be rejected. Support for this contention is sought to be derived from the letter dated September 4, 1972, addressed by the range officer, Central Excise, to the Asst. Collector of Central Excise, Pondicherry, by which the latter informed the former about the seizure of gold made by the I.T. authorities on September 3, 1972, and the further letter "sent by the Asst. Collector of Central Excise, Pondicherry, to the Collector of Central Excise, Madras, on September 7, 1972. The learned counsel also relied upon the fact that the range officer had been asked to take a statement from the petitioner. do not think that merely from these, it can be said that any proceeding was pending in connection with the gold before the date of declaration made by the petitioner under the voluntary disclosure scheme. This is fortified by the fact that the Asst. Collector of Central Excise, Pondicherry, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
