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TMI Blog2013 (3) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... does not appear to be justified in these circumstances. The continued detention and retention of these Gold ornaments and jewellery of petitioner - assessee by the respondent- Income-tax Department is without any valid reason - in favour of assessee. - Civil Writ Petition No.5513/2012 - - - Dated:- 28-1-2013 - Vineet Kothari,J. Mr. Dinesh Mehta, for the petitioner Mr. K.K. Bissa, for the respondents JUDGMENT 1. The writ-petitioner has made the following prayer/s in the present writ petition: (i) the impugned communication dated 16/4/2012 (Annexure 17) issued by the Respondent No.3 may be quashed. (ii) respondents may be directed to release 1004.8 gms of gold ornaments seized from the petitioner during the course of search on 18/1/2007. (iii) an exemplary cost of Rs.1,00,000/- may be awarded to the petitioner and same may be directed to be recovered personally from the erring officers. (iv) Any other order or direction which this Hon'ble Court deems just and proper may kindly be passed. 2. A search u/s 132 of the Income Tax Act, 1961, was Conducted at the residential house of the petitioner on 18.01.2007 and inter-alia, 1004.8 grams gold jewelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. 5. The respondents have also relied upon a Circular issued by the Central Board of Direct Taxes (Annex.8) dated 21st January, 2009, which is also quoted below: F. No.286/6/2008-IT (Inv.II) Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes Room No.254, North Block New Delhi, the 21st January, 2009 To, All Chief Commissioners of Income Tax (CCA) All Chief Commissioners of Income Tax (Central) All Directors General of Income Tax (Inv/Intell.) Sir/Madam, Sub:- Search and Seizure Cases- Release of Seized Assets other than Cash-Regarding. Reference is invited to Board's Instruction No.11/2006 in F. No.F. No.286/138/2006-IT (Inv.II) dated 1.12.2006 wherein certain issues relating to the release of cash deposits in the PD Accounts were dealt with. In respect of release of seized assets, other than cash, there is need to modify the existing instructions for redressal of public grievances. 2. In this regard, Board had issued directions vide F.No.286/217/98-IT (Inv.II) dated 02.02.1999 and F.No.286/97/ 2003-IT (Inv.II) dated 03.03.2004. In supersession of all instructions on the subject of release of seized asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the valuation of the seized assets determined at the time of search and seizure operation; and (ii) makes a written request to release the seized assets and provides unconditional and irrevocable bank guarantee to the extent of the value of seized assets. (e) The Board is also aware of the fact that some assessees have great attachment to the seized assets and are willing to exchange such seized assets for an equivalent amount of cash. The replacement of seized assets with cash also makes it easier for the Department to adjust this cash against tax liability. Hence, it has been decided that the seized assets can also be released at any time, with the approval of the CIT or CCIT provided that: (i) the assessee accepts unconditionally the ownership of the seized assets and also the valuation of the seized assets, determined at the time of search and seizure operation; (ii)makes a request in writing requesting release of seized assets against equivalent amount of cash to be provided by him (iii)pays to the CIT a draft of an amount equal to the value of the seized assets and (iv) Agrees in writing that the amount may be deposited in the PD account and may be used for adjustme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been made under the impugned order Annex.17 dated 16.04.2012. He, therefore, submitted that assessee was asked to give the bank guarantee for the value of the assessee's jewellery for its release. 8. In rejoinder to this, learned counsel for the petitioner submitted that there is no justification for demanding the bank guarantee for the entire value of the jewellery seized, which was not justified in the first instance but the entire demand of tax and penalty having been paid by the assessee, the release thereof cannot be withheld by the respondents authorities unnecessarily and arbitrary and the same has caused serious prejudice to the assessee besides lot of mental agony and deprivaty. 9. A bare perusal of the said Circular indicates that detention of the assets has been provided and permitted only so long as there is some outstanding demand of tax and penalty against an assessee or expected liability of such tax or penalty; obviously to safeguard the interest of Revenue for the realization or recovery of such demand of tax, interest and penalty. But, in the present case, admittedly there is no demand of tax, interest and penalty outstanding against the petitioner for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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