TMI Blog1993 (4) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... equently released on bail. A copy of a seizure report was forwarded to the Income Tax Authorities. On 28th July, 1989, the Directors (Investigation) of Income Tax Authorities issued notice under Section 131 of the Income-tax Act, 1961 (hereinafter referred to the Act) to the petitioner directing him to produce books of account for the year 1989-90, Bank s statement, Income Tax File number. 3. It appears from the records produced by the respondent authorities that pursuant to the notice under Section 131, the petitioner in fact produced the books of account and documents as directed before the Income Tax authorities. It also appears that the Income Tax authorities made enquiries as to the source of amounts standing in the books of account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -91 has been assessed by the Income Tax Officer and a final assessment order was passed under Section 143 on 19th March, 1991. 8. As far as the Customs Authorities are concerned, the criminal proceeding which had been started by the Customs Authorities against the petitioner was dismissed against the petitioner. The goods seized were released to the petitioner on 9th January, 1991. The money, however, was not released. The petitioner accordingly filed this writ application for, inter alia, a direction on the respondents who were originally only the Customs Authorities to release the amount of Rs. 3,10,000/- to him. 9. By an order dated 9th January, 1991 K.M. Yusuf, J. directed the Customs Authorities to release at least Rs. 1,50,000/- t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed before this Court for hearing. 11.The Income-tax Authorities have filed an affidavit-in-opposition. No affidavit-in-opposition has been filed by the Customs Authorities. 12. At the hearing the petitioner has contended that there was no justification for the Customs Authorities to continue to retain the sum of Rs. 3,10,000/- after the order of the Additional Collector of Customs (Preventive) on 20th December, 1989. As far as the Income-tax Authorities are concerned, the petitioner has submitted that the pre-condition for exercise of power under Section 132A(1) of the Act was absent. The petitioner had, in fact, disclosed the amount of Rs. 3,10,000/- in his books of account which had been checked by the Income-tax Authorities at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r so as to deprive the Income-tax Officer of the jurisdiction to issue a Notice under Section 132A(1). 15. In my view, the writ petitioner is entitled to succeed in this writ petition. This conclusion is based on the following reasons:- 16. There cannot be any question of suppression, if the fact is not a material one. In other words, if the Court would have in any event, irrespective of the Notice under Section 132A(1), passed the order prayed for, the fact of not mentioning of the Notice would not be fatal to the writ petition. The language of Section 132A of the Act, in so far as it is relevant, reads as follows :- 132A. (1) Where the (Director General or Director) or the (Chief Commissioner or Commissioner) in consequence of info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mere fact that there was a large amount of money available with the petitioner would not by itself mean that the petitioner would not disclose the amount. There must have been some other factor which should have induced the Income-tax Officer to at least believe that the petitioner would not, in fact, disclose the amount. As it happens, the petitioner did disclose the amount. In the Return for the Assessment Year 1990-91 the petitioner has specifically referred to the amount on the Assets side. The notice under Section 132A is issued for the purpose of ensuring that the moneys which could have been secreted are, in fact, brought to light. This is followed by a summary estimation of income under Section 132(5) culminating in a final order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding on the assumption that he did have such jurisdiction when the Notice was, in fact, issued. 21. The last contention of the respondents that disclosure made by the petitioner was not adequate may be relevant to a proceeding under Section 147(148) of the Act but cannot be considered at this stage after the final order of assessment has been made on the basis of the Return as filed. 22. The Notice under Section 132A(1) has spent its force. There can be no warrant for the Income-tax Authorities to hold on to the amount of Rs. 3,10,000/- any more. The Special Officer appointed pursuant to the order of this Court is, therefore, directed to hand over the amount of Rs. 3,10,000/- to the petitioner within a period of one week from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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