SRI.P.L.TONY V. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE

WP(C)/23790/2018

AI Insights

The case involves Sri P.L. Tony, a jewelry proprietor, who faced search and seizure proceedings by the income tax authorities, resulting in the seizure of gold. The authorities conducted a physical verification of the stock and found discrepancies, leading to the seizure of 1911.76 grams of gold from the petitioner's residential premises. The petitioner, aggrieved by the subsequent assessment and seizure, filed a writ petition seeking the return of the seized gold and challenging the assessment orders. The court's decision provided a mechanism for the petitioner to secure interim custody of the seized gold while the legal proceedings continued.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 697850 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 01-08-2018
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: ANIL NAIR; R SREEJITH; MEKHALA BENNY; ACHYUT PADMARAJ
• Keywords: Assessment Order; Gold Seizure; Income Tax; Search and seizure; Statutory Appeal
• Section: 132; 132(B)

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940 WP(C).No. 23790 of 2018 ------------------------ PETITIONER ---------- SRI.P.L.TONY, PANTHALLOOKARAN HOUSE, KODAKARA PO,THRISSUR-680684. BY ADVS.SRI.ANIL D.NAIR SRI.R.SREEJITH KUM.MEKHALA M.BENNY SRI.ACHYUT K PADMARAJ RESPONDENT(S): -------------- 1. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, THRISSUR-680001. 2. THE PRINCIPLE COMMISSIONER OF INCOME TAX (CENTRAL), KOCHI-682018. BY SRI.JOSE JOSEPH, SC, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.V. WP(C).No. 23790 of 2018 (W) -------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 TRUE COPY OF MAHAZAR. EXHIBIT P2 TRUE COPY OF PROCEEDINGS DATED 15.02.2018. EXHIBIT P3 TRUE COPY OF LETTER DATED 27.01.2018. EXHIBIT P4 TRUE COPY OF ORDER DATED 19.02.2018. EXHIBIT P5 TRUE COPY OF REQUEST DATED 16.02.2018. EXHIBIT P6 TRUE COPY OF REMINDER DATED 3.04.18. EXHIBIT P7 TRUE COPY OF ORDER DATED 05.07.18. EXHIBIT P8 TRUE COPY OF RELEVANT PAGES OF CIRCULAR NO.7/2003 DATED 05.09.2003. EXHIBIT P9 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2010-11. EXHIBIT P10 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2011-12. EXHIBIT P11 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2012-13. EXHIBIT P12 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2013-14. EXHIBIT P13: TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2014-15. EXHIBIT P14: TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2015-16. EXHIBIT P15 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2016-17 ALONG WITH CALCULATION STATEMENT. EXHIBIT P16 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2010-2011. EXHIBIT P17 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2011-2012. EXHIBIT P18 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2012-2013. EXHIBIT P19 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2013-2014. EXHIBIT P20 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2014-2015. WP(C).No. 23790 of 2018 (W) -------------------------- EXHIBIT P21 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2015-2016. EXHIBIT P22 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2016-2017. EXHIBIT P23 TRUE COPY OF THE STATEMENT OF THE PETITIONER DATED 23.2.2015. EXHIBIT P24 TRUE COPY OF THE STATEMENT OF THE PETITIONER ON 24.2.2016. EXHIBIT P25 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 25.10.2017 ISSUED TO THE PETITIONER. EXHIBIT P26 TRUE COPY OF THE REPLY DATED 25.11.2017 FILED BY THE PETITIONER. RESPONDENTS EXHIBITS: NIL --------------------- /TRUE COPY/ K.V. P.S.TO JUDGE 06.08.2018 DAMA SESHADRI NAIDU, J. ================================== W.P.(C) No.23790 of 2018 ====================================== Dated this the 1st day of August, 2018 JUDGMENT The petitioner, a proprietor dealing in jewellery, faced search and seizure proceedings. The revenue found, on physical verification of the stock, that it was less by 3947.95 grams. Thereafter, the authorities also searched the petitioner's residential premises, where they found 19 packets of gold lockets weighing 1911.76 grams. The search and seizure took place on 23.02.2016. Eventually, the authorities completed the assessment on 29.12.2017. 2. Aggrieved, the petitioner filed a statutory appeal after depositing 20% of the disputed tax. Now, the petitioner has come up with this writ petition seeking the following reliefs: “a) Call for the records leading to issuance of Ext.P7 and quash the same by issuing a writ of -2- W.P.(C) No.23790 of 2018 certiorari. b) To issue a writ of mandamus or such other writ, order or direction, directing the respondents to return the gold seized during the course of search as being violative of Sec.132 of the Income Tax Act. c) Pending hearing and final disposal of the Writ petition, this Hon'ble Court be pleased to direct the respondents to release the goods seized vide Exhibit P1.” 3. In response to the submissions made by the petitioner's counsel, the learned Standing Counsel has strenuously contended that the petitioner ought to have filed an application under Section 132(b) of the Income Tax Act. This application must have been filed within 30 days after the seizure of the gold. He has nevertheless submitted that the petitioner may, as well, provide the bank guarantee, without prejudice to the revenue's rights and secure interim custody. 4. In response, the learned counsel for the petitioner -3- W.P.(C) No.23790 of 2018 submitted that the petitioner has already paid 20% of the disputed tax as a pre-deposit, at the time of his filing the appeal. Therefore, he seeks that amount deducted if at all this Court decides to put the petitioner on terms, to have the interim custody of the seized gold. 5. In this circumstance, I hold that the 1st respondent will release the seized gold to the petitioner on his furnishing bank guarantee for the gold, excluding 20% he has already deposited. With these observations, I dispose of this Writ Petition. I clarify that this arrangement of interim relief will not affect the rights of either party to the proceedings. I also observe that petitioner must keep the bank guarantee alive till the disposal of the statutory appeal. Sd/- DAMA SESHADRI NAIDU JUDGE sd "