TMI Blog1994 (10) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 293 of the Income-tax Act, 1961. The learned judge having decided the issue against the petitioners by the impugned order, this revision has been filed challenging its validity. A brief narration of certain basic facts is necessary to appreciate the contention raised. The case of opposite party No. 1 is that she is the daughter of Banshidhar Agarwal through his first wife, Mani Debi, whereas opposite parties Nos. 2 to 6 (defendants Nos. 1 to 5) are the sons and daughters of the said Banshidhar Agarwal through his second wife, Kamil Debi. Mani Debi, the mother of opposite party No. 1 died in the year 1958. She had stridhan property of about 200 tolas of gold ornaments. She left behind a will bequeathing the gold ornaments to opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tead of filing a written statement challenged the maintainability of the suit by filing the petition. According to them, their officers in exercise of the powers under section 132 of the Income-tax Act, 1961 (hereinafter referred to as "the Act") searched the house and godown of opposite party No. 2--defendant No. 1, and seized the ornaments in question. After considering the facts and circumstances of the case, the order was passed under section 132(5) of the Act holding that all the assets seized during the course of search and seizure operation shall be retained. The further case of the petitioners is that the order made under section 132(5) of the Act was not appealed against and as such it has become final. Since the proceeding of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary implication. The principles governing the question as to when exclusion of civil court's jurisdiction can be inferred have been indicated in several judicial pronouncements. In Secretary of State v. Mask and Co., AIR 1940 PC 105, at page 110, the Judicial Committee observed: " It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. " A perusal of the order dated September 27, 1990, made under section 132(5) by the Income-tax Officer, Bolangir, which is annexure-1 to the revision petition, shows that on the strength of warrant of authorisation issued by the Director of Income-tax (Investigation), Hyderabad, search and seizure operations were conducted in the residence-cum-business premises of opposite party No. 2 who is an assessee under the Act. In the course of the search, assets in the shape of cash, jewellery, gold ornaments, silver art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust the jurisdiction of the civil court in the case at hand one has to examine whether the Income-tax Officer under sub-section (5) or the Chief Commissioner or the Commissioner under sub-section (11) of section 132 would be able to grant the relief claimed by opposite party No. 1 that the seized gold ornaments are subject to partition, it being the stridhan property of her mother who bequeathed the same in a will. As the matter, I am of the view, neither the Income-tax Officer nor the named authority under sub-section (11) of section 132 would be able to grant the aforesaid relief. Opposite party No. 1 is not an assessee and she is a third party so far as the proceeding initiated against opposite party No. 2 under section 132 of the Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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