TMI Blog2012 (7) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the authority in order to enable him to form an opinion/reason to believe that the amount in question has not been or would not have been disclosed for the purpose of IT Act - writ petition fails and is hereby dismissed - WRIT PETITION NO. 3626 OF 2007 - - - Dated:- 5-5-2011 - SHANTANU KEMKAR AND ABHAY M. NAIK, JJ. P.M. Choudhary for the Petitioner. R.L. Jain and Ms. Veena Mandlik for the Respondent. ORDER Ahhay M. Naik, J. This writ petition under Article 226 of the Constitution of India has been preferred against the warrant of authorization dated 11.06.2007 issued under Section 132A(1) of the Income Tax Act, 1961, whereby respondent No. 1 requisitioned the amount of Rs. 26,00,000/- seized from petitioner No. 2 by Police Station In-charge, Chandan Nagar Police Station, Indore. 2. Briefly stated relevant facts are that at about 2.45 AM on 10.06.2007, the City Superintendent of Police, Indore intimated telephonkally the ITO (Investigation) about the seizure by Police Station In-charge of Chandan Nagar Police Station, Indore of cash amount of Rs. 1,23,50,000/- from the possession of four persons on checking of luxury bus number MP-41 P-0150 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o was an employee of the petitioner's firm. He was intercepted on 10.06.2007, when he was carrying the money from Indore to Ahmedabad in a bus, by Chandan Nagar Police and the amount in question was seized from him. The factum of seizure was intimated by the Police Authorities to Income Tax Department. Consequently, respondent No. 1 issued a warrant of authorization on 11.06.2007, in exercise of its powers under Section 132A(1) of the IT Act and has proposed to requisition the said amount of Rs. 26,00,000/- seized from the possession of petitioner No. 2. It is submitted that the aforesaid warrant of authorization issued by respondent No. 1 requisitioning thereby the seized cash from the Police Authorities is illegal and without jurisdiction for want of satisfaction of the conditions precedent for assumption of jurisdiction under Section 132A of the IT Act. According to the petitioner, there was no information in possession of respondent No. l, which would lead to information of belief about the existence of any of the conditions specified in clauses (a) to (c) of the said provision. According to the petitioner, the authorization was issued merely on account of the seizure, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on from whose possession or control such assets have been taken into custody by any officer or authority under any other law for the time being in force, then, the [Director General or Director] or the [Chief Commissioner or Commissioner] may authorise any [Additional Director, Additional Commissioner,] [Joint Director], [Joint Commissioner], [Assistant Director [or Deputy Director]], [Assistant Commissioner [or Deputy Commissioner] or Income-tax Officer] (hereafter in this section and in sub-section (2) of section 278D referred to as the requisitioning officer) to require the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, to deliver such books of account, other documents or assets to the requisitioning officer: (2) On a requisition being made under sub-Section (1), the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, of that sub-section shall deliver the books of account, other documents or assets to the requisitioning officer either forthwith or when such officer or authority is of the opinion that it is no longer necessary to retain the same in his or its custody. (3) Where any bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the regularity of the action. If it is found that action has been taken maliciously or power is exercised for collateral purpose, the same is liable to be struck down by the Court. It has been further held that power exercised by the Commissioner under Section 132 is not a judicial or quasi-judicial power and that the Court cannot substitute its own opinion for that of the Commissioner." 9. The Apex Court in the case of Union of India v. Ajit Jain [2003] 260 ITR 80/129 Taxman 74 has held that the intimation simplicitor by CBI, without something more, did not constitute "information" within the meaning of Section 132 of IT Act. 10. Scope of writ jurisdiction in a case containing the challenge to authorization under Section 132A of the IT Act is in our opinion well explained by the Rajasthan High Court in the case of Sohanlal Mundra v. Union of India [1996] TLR 960 (Raj.) in the following passage: - "It is further true that when issuance of an authorisation under section 132A of the Income Tax Act, 1961, is challenged in a court of law, it will be open to the petitioners to contend that on the facts or information disclosed no reasonable man could have arrived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority must have reason to believe that the person concerned has assets which have not been or would not have been disclosed for the purpose of the Act." 14. Shri P.M. Choudhary appearing for the petitioner placed much reliance on the decision of the Apex Court in the case of CIT v. Vindhya Metal Corpn. [1997] 91 Taxman 192 wherein it has been held that if the amount is seized by the GRP from the possession of a traveller, who at that time, had no documents as to the ownership or possession of sum and whose name was not borne on the General Index Register of ITO of the place which that traveller belonged to, warrant of authorization on the basis of mere aforesaid information, is not sustainable in law, because no reasonable person could have entertained a belief that the amount seized represented income that traveller person would not have disclosed for the purpose of IT Act. 15. Keeping in mind the above settled principles of law, we would now advert to the facts of the present case. Facts of The Case Police of Chandan Nagar Police Station, Indore on information seized amount of Rs. 26,00,000/- from Amish Kumar s/o Karsan Bhai Patel. He was carrying the money to Ahm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the contrary, he has clearly stated that the money was to be delivered to Govind Bhai Patel at Ahmedabad office of the firm. Nothing was disclosed about relation of Govind Bhai Patel with the petitioner firm. Thus, the explanation furnished by Amish Kumar Patel from whose possession the money was seized was not found satisfactory by the department and the aforesaid material was in possession of the authority when on 11.06.2007 the warrant of authorization was issued. Thus, we find that there was sufficient information in possession of the authority in order to enable him to form an opinion/reason to believe that the amount in question has not been or would not have been disclosed for the purpose of IT Act. 17. In the case of Vindhya Metal Corpn. ( supra ), the Apex Court affirmed the order of High Court quashing the warrant of authorization on the ground that there was nothing before the Commissioner to suggest that it was, in fact, wholly or in part, Income of any person connected with Vinod Kumar Jaiswal so as to induce a belief that, if called upon, Vinod Kumar Jaiswal would not have disclosed it for the purpose of the Act. In the instant case, Amish Kumar Patel in his ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
