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2016 (3) TMI 757 - ALLAHABAD HIGH COURT

2016 (3) TMI 757 - ALLAHABAD HIGH COURT - TMI - Warrant of authorization under section 132-A (1) - seeking release of such assets from police - application for release of money before Magistrate/Session Court under provisions of Cr.P.C. - Held that:- Section 132 (5) has specifically been omitted w.e.f. 1.6.2002 but it was existing when proceedings of case in hand were initiated, hence its subsequent omission would not be affected. On a reading section 132-A (1) (c), 2 and 3 read with section 132 .....

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uthority has already requisitioned assets under section 132A from Police officials, who had thereafter delivered the same to competent authority of Income 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 mainta .....

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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 residing at Chauri Chaura, rather he is residing in Saudi Arabia. 3. Consequently, police authorities wrote a letter to Income Tax Officer, Mau informing seizure of money and .....

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ion of opposite party 1. In pursuance of warrant of authorization issued by Director, Income Tax (Investigation) Kanpur, the aforesaid money was requisitioned by Income Tax Officer (C.I.B.) Gorakhpur from Station Officer Dohrighat and thereafter, a draft demand was drawn in favour of Commissioner, Income Tax, Allahabad P.D. Account from Punjab National Bank Dohrighat. 5. The opposite party 1 filed application before Addl. Chief Judicial Magistrate requesting for release of aforesaid money. It wa .....

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hief Judicial Magistrate when they filed application for release of the money, registered as Case No.41 of 1995 nor impleaded the said department in Criminal Appeal No. 3 of 1995, which was allowed by Sessions Judge, Mau vide impugned judgement dated 29.7.1995. Only State was impleaded as opposite party and Government Advocate appointed by the State of U.P. to represent State appears to have been heard by the courts below. Release application was filed under section 194 of Motor Vehicle Act 1988 .....

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petent 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 asset .....

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one Wazir Ahmed, friend of Gurfan. Statement of Nazre Alam opposite party 1 was found correct on inquiry made by Station Officer, Dohrighat. Sri Wazir Ahmed was not found residing at Chauri Chaura the address disclosed by opposite party 1 but is residing abroad i.e. Saudi Arabia. Police consequently informed about aforesaid assets and some loose document found from the possession of opposite party 1 to Income Tax Officer, Mau vide letter dated 3.12.1994. Income Tax Officer in his turn sent a le .....

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y, on 13.12.1994 Sri Janardan Tripathi, Income Tax Officer (C.I.B.) Gorakhpur requisitioned ₹ 1,85,000/- from Police Station, Dohrighat, who prepared a Demand draft in favour of Commissioner, Income Tax, Allahabad P.D. Account from Punjab National Bank Dohrighat and remitted assets which was seized by the Income Tax Department on 1.12.1994. On 15.12.1994 Additional Director, Income Tax, Gorakhpur enquired from Income Tax Officer, Mau about issuance of notice under Rule 112-A of Income Tax .....

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rded. Another notice was issued on 5.4.1995 fixing 10.4.1995. No reply was given by opposite party 1 to notice dated 5.4.1995, hence Income Tax Officer, Mau passed order under section 132(5) read with Rules 111 and 112 of Income Tax Rules, 1962 for seizure of money requisitioned from Station Officer, Dohrighat 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 Dep .....

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strate, 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) W .....

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of 1922), or this Act by any person 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 [Principal Director General or] Director General or [Principal Director or] Director] or the [Principal Chief Commissioner or] Chief Commissioner or [ Principal Commissioner or] Commissioner] may authorize any [Additional Director, Additional Commissioner,][Joint Director], [Joint Commissioner], [Assi .....

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ty 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 books of account, other documents or assets have been delivered to the requisitioning officer, the provisions of sub-sections (4A) to (14) (both inclusive .....

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fficer" 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 .....

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11 of 1922 ), or this Act; (iia) determining the amount of interest payable and the amount of penalty impossible in accordance with the provisions of the Indian Income- tax Act, 1922 (11 of 1922 ), or this Act, as if the order had been the order of regular assessment; (iii) specifying the amount that will be required to satisfy any existing liability under this Act and any one or more of the Acts specified in clause (a) of sub- section (1) of section 230A in respect of which such person is in de .....

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r previous year or years such income or any part thereof relates, he may calculate the tax on such income or part, as the case may be, as if such income or part were the total income chargeable to tax at the rates in force in the financial year in which the assets were seized and may also determine the interest or penalty, if any, payable or impassable accordingly: Provided further that where a person has paid or made satisfactory arrangements for payment of all the amounts referred to in clause .....

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