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2016 (3) TMI 757

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..... come Tax department. So there was no occasion to seek release of such assets from police and that too without impleading Income Tax Department. Money so seized can be released by competent authority under provisions of Act 1961 Thus no application for release of money before Magistrate/Session Court under provisions of Cr.P.C. was maintainable. - Criminal Revision No. 1338 of 1995 - - - Dated:- 4-3-2016 - Sudhir Agarwal, J. For the Appellant : R. R. Agarwal For the Respondent : Govt. Adv. ORDER Hon'ble Sudhir Agarwal, J. 1. Heard learned counsel for the parties. 2. On 1.12.1994 while making a routine checking of vehicles by the police authorities of Police Station Dohrighat, district Mau, a sum of ₹ 1,85,000/- was found in possession of one Nazre Alam, who was travelling by Yamha Motor Cycle No. UP-50 A/1534. On inquiry, he stated that money belonged to his maternal uncle Gurfan son of Hafiz Sultan, who had given to him for delivering the same to Sri Wazir Ahmed, resident of Nai Bazar, Chauri Chaura. The statement of opposite party 1 was found incorrect, on inquiry made by Station Officer, Dohrighat and it was found that Wazir Ahmed was not .....

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..... ered ₹ 1,85,000/-. It is also observed that a warrant under section 132-A of Act, 1961 requisitioning the money seized by police, it was incumbent upon police to first seek permission of Judicial Magistrate under section 457 Cr.P.C. to transfer money otherwise the police was not competent to do it. With regard to proceeding of Income Tax department no document was produced by the police authorities before court below. 8. Learned counsel appearing for revisionist contended that section 457 Cr.P.C. has wrongly being relied by Session Judge for reason that Act 1961 is a special Act and shall override otherwise provisions of Cr.P.C. Once requisition has been made by Income Tax authority under section 132A, Magistrate is not entitled to go on for an inquiry into nature of assets and ownership etc.. In support he placed reliance on a decision of this Court in Union of India Vs. Judicial Magistrate (Eastern Railway), Mughal Sarai and another, 1983 (140) ITR 553. 9. From record it transpires that police on a routine checking of vehicles on 1.12.1994 found a sum of ₹ 1,85,000/- with Nazre Alam opposite party 1, who was travelling by Yamha Motor Cycle No.UP-50A/1534. He exp .....

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..... righat on 13.12.1994. This order under section 132(5) was served on opposite party 1 on 10.4.1995. Order under section 132(5) was passed by Income Tax Officer after taking prior permission of Deputy Commissioner, Income Tax, Gorakhpur. Income Tax Officer created a liability of ₹ 1,98,966/-, which included tax interest and penalty for the year 1995-96 as the amount seized under section 132(5) was less than total tax liability. An objection against order under section 132(5) was filed by opposite party 1 under section 132(11). 10. In the meantime, it appears that opposite party 1 and 2 filed an application under section 194 of Motor Vehicles Act before Additional Chief Judicial Magistrate, Mau requesting for release of assets/money i.e. ₹ 1,85,000/- seized from possession of opposite party 1. Application was rejected by Additional Chief Judicial Magistrate vide order dated 28.1.1995 holding that assets having been requisitioned and seized by Income Tax Officer, Magistrate has no jurisdiction and this order was set aside by Sessions Judge, Mau by impugned judgement dated 29.7.1995. Section 132A(1)(c), 2 and 3 relevant for this purpose reads as under: 132A. (1) Wher .....

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..... rised officer occurring in any of the aforesaid sub-sections (4a) to (14), the words the requisitioning officer were substituted.] 11. Section 132(5) of Act 1961 reads as under: 5. Where any money, bullion, jewellery or other valuable article or thing (hereafter in this section and in sections 132A and 132B referred to as the assets) is seized under sub- section (1) or sub- section (1A), as a result of a search initiated or requisition made before the 1st day of July, 1995, the Income Tax Officer, after affording a reasonable opportunity to the person concerned of being heard and making such enquiry as may be prescribed, shall, within one hundred and twenty days of the seizure, make an order, with the previous approval of the Joint Commissioner,- (i) estimating the undisclosed income (including the income from the undisclosed property) in a summary manner to the best of his judgment on the basis of such materials as are available with him; (ii) calculating the amount of tax on the income so estimated in accordance with the provisions of the Indian Income- tax Act, 1922 (11 of 1922 ), or this Act; (iia) determining the amount of interest payable and the a .....

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