Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2020 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (8) TMI 243 - HC - Income TaxRelease of Custody of cash invoking Section 451 of the Cr.P.C. - petitioner seeking custody of cash, invoking Section 451 of the Cr.P.C.- power of the authorities to requisition for delivery of unexplained assets or cash from the custody of the concerned officer or the authority in possession of the same - HELD THAT:- Unexplained amount of cash was possessed by a person, has to apply to the court under Section 226(4) for payment of the money due under the tax. This Court by order dated 28.5.2020 has called upon the petitioner to report whether assessment proceedings have been initiated and finalised and also to report the amount recoverable towards payment of tax etc. under the Act. The petitioner submitted a statement on 11.6.2020 intimating that assessment was completed as against the first respondent making a demand for an amount of ₹ 20,12,420/- towards tax and interest etc. It was intimated that the amount directed to be retained in JFCM Court being only ₹ 15,23,480/- was insufficient to cover the entire liability of the first respondent, assessee. It is contended that when penalty leviable under Sections 271(1)(c) is also quantified, the assessee will be liable for payment of more amount. Going through the counter affidavit filed by the first respondent, his contention appears to be that the cash seized from his possession is an accounted money for which he is not liable to be assessed for the amount as fixed by the authorities under the Act. The assessment order dated 29.12.2018 produced before this Court shows that the first respondent was assessed after following the procedure prescribed by the Act. He cannot therefore contend in this proceeding that he is not liable for payment of tax, interest and penalty unless the order itself is challenged before the appropriate authority competent to entertain appeal under the Act. As to the amount for which he could be finally held liable, it is for the authorities under the Act to determine and quantify the sum. Such an inquiry cannot be undertaken by the Magistrate while deciding the petitions filed under Section 451 of the Cr.P.C. seeking release of cash amount from the court. Therefore, the apportionment of the amount as between the claimants and release of 40% of the cash amount in deposit to the petitioner as if such portion of the amount would satisfy the claim of the Income Tax authorities is factually and legally wrong. That part of the impugned order allowing the first respondent to get release of 60% of cash in deposit on tender of bank guarantee, therefore, requires to be modified. Appropriate remedy open to the Income Tax officer is to apply Section 226(4) of the Act for payment of money towards tax and other amounts due. That means, once the assessment proceedings have become final and conclusive, the authorities under the Act are entitled to apply to the learned Magistrate for release of the portion of amount due and recoverable from the first respondent under law. The amount necessary for satisfying the liability of the first respondent will have to remain in the custody of the court despite any claim being raised by parties demanding interim custody, pending finalisation of the assessment proceedings.
|