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2016 (5) TMI 579 - DELHI HIGH COURT

2016 (5) TMI 579 - DELHI HIGH COURT - [2016] 384 ITR 545 - Seizure of the stock of gold and cash challenged - release of seized goods seeked - Held that:- The premises of the petitioners was raided on 11.07.2005 nearly 11 years ago. 6 Kilograms of gold bars and currency was seized therefrom. Till date, there is no justification forthcoming for either the conduct of the raid or for seizure of the said articles. There is nothing on record to show that any proceedings for assessment/re-assessment w .....

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20590/2010 (stay), LPA 250/2011 & CM Nos.5488/2011 (for stay), 5489/2011 (for condonation of delay), LPA 511/2011 & CM No.10888/2011 (for condonation of delay) - Dated:- 12-5-2016 - Badar Durrez Ahmed And Sanjeev Sachdeva, JJ. For the Petitioners : Mr Rakesh Gupta, Ms Poonam Ahuja, Mr Somil Agarwal, Mr Rohit Kumar Gupta and Ms Monika Ghai, Advocates For the Respondents : Mr Rahul Chaudhary, Sr. Standing Counsel for ITD, Mr Anuj Aggarwal with Mr Shubhanshu Gputa, Advocates JUDGMENT Sanjeev Sachde .....

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Tax Act, 1961 (hereinafter referred to as the Act ). 3. On 11.07.2005, a search and seizure operation was carried out at the premises of the Petitioner No. 1 (i.e. Gauri Shankar Goel Director of M/s J.P. Goel and Sons Private Limited) by the Enforcement Directorate. Gold weighing 6 Kilograms and Indian currency amounting to ₹ 1,41,000/- was seized under the Foreign Exchange Management Act, 1999 (FEMA for short). 4. The petitioners challenged the seizure and requested release of the gold a .....

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no case could be made out in respect of the seized stock of gold bars and the Indian currency and the matter had been referred to the Income Tax Department for taking such action as may be deemed fit by them. On 22.07.2009, Income Tax Department was put to notice in the said WP(C) No. 3908/2008. The Assistant Director of Income Tax (Investigation) filed an affidavit contending that warrant of authorization under Section 132 (A) of the Act had been issued on 17.07.2009 and the warrant of attachme .....

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e disposed of Writ Petition (C) 3908/2008 holding that from the affidavit of the Directorate of Enforcement, it was admitted that there was no legal justification for seizing the 6 Kilograms of gold from the business premises of the petitioner by the Enforcement Directorate. There was no FEMA violation in that regard and with regard to seizure of cash of ₹ 1,49,000/-, no legal justification has been shown by the Enforcement Directorate and the case was merely referred to the Income Tax Dep .....

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epartment had done after issuance of warrant on 17th July, 2009 under Section 132 (A) of the Act. The writ petition was allowed with the direction to the respondent/Income Tax Department to immediately release the 6 Kilograms of gold as well as Indian currency amounting to ₹ 1,49,000/- seized from the premises of the petitioner and his brother, Shankar Lal Goel, petitioner No. 3 herein. The warrant under Section 132 (A) issued by the Income Tax Department on 27th July, 2009 was also quashe .....

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the findings returned by the learned single Judge in the impugned order to the effect that Section 37 of the FEMA could not be invoked to seize Indian currency was erroneous. 9. On the other hand, the Income Tax Department has impugned the order in LPA No. 250/2011 primarily on the ground that it was justified in invoking the powers under Section 132 (A) of the Act and in executing the warrants of authorization and taking into custody six kilograms of gold bars and the Indian currency amounting .....

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. It is contended that original documents recovered from the petitioners were sought from the Directorate of Enforcement and the said original seized material was received on 4.4.2011. It is contended that the case of Gauri Shankar and Ors, the petitioners herein has been centralized with ACIT, Central Circle-15, New Delhi in the charge of Commissioner of Income Tax, Delhi (Central)-II, New Delhi vide order No. F.No./CCIT(Central)/Centralization/2010-11/2984 dt. 25.11.2010 and the factual report .....

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ings for assessment/re-assessment pertaining to the said seized articles have been initiated against the petitioners. There is no material brought on record by the respondents to justify either the seizure or retention of the said 6 Kilograms of gold bars and Indian currency amounting to ₹ 1,49,000/- seized from the business premises of the petitioner. 12. Additionally, at the time of hearing of the present petition, learned counsel appearing for the Income Tax Department contended that it .....

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tedly, the gold and currency were seized from the premises of the petitioners. To overcome any technical objection, it is contended that the petitioners are competent to take possession of the seized articles on behalf of M/s J.P. Goel and Sons Private Limited also and the said goods and articles may be released to M/s J.P. Goel and Sons Private Limited through its Director, Mr. Gauri Shankar Goel. 14. The premises of the petitioners was raided on 11.07.2005 nearly 11 years ago. 6 Kilograms of g .....

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