TMI Blog2004 (4) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing on the last occasion. On the prayer of learned counsel for the Revenue the matter was adjourned for hearing today on the ground of non-availability of the learned Additional Solicitor-General. On that date the hearing could have been concluded but for the adjournment prayed for by learned counsel on the ground as above. Today he prayed for further adjournment. I feel the matter cannot be adjourned because it is a partly heard matter. Mr. Poddar concluded his submission on the last occasion. He submitted that there is no lawful reason for withholding 9 per cent. Reserve Bank of India Bonds, 99, valued at Rs. 7.2 crores in total. He submits that under the provisions of the block assessment the aforesaid securities were seized pursuant to seizure followed by preparation of panchanama. Block assessment of the petitioners have been completed. Even regular assessment has also been completed. Even after completion of all these the securities were retained on the plea that there is a deemed dividend which is required to be assessed. The assessing authority completed the block assessment in relation to the said bonds and held the amount covered thereby was undisclosed income of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ournment and he has produced a document in support of the factum obtaining adjournment. Under such circumstances, he contends that retention and/or detention of the securities are wholly unauthorised and not permitted under the law. Learned counsel for the respondent has drawn my attention to paragraph (i) of the affidavit-in-opposition. He submits that admittedly appeal has been preferred against the order of the Commissioner (Appeals) and such appeal is pending before the Income-tax Appellate Tribunal. According to him, this appeal is the continuation of the original proceedings, namely, the assessment. It is true the Commissioner of Income-tax (Appeals) has reversed the order of the Assessing Officer, but then it has not reached its finality. According to him, the liability is to be determined and it will be crystallised only when the decision of the Tribunal will be passed. He further submits that the effect of appeal in revenue matters stands on a different footing from that of the civil proceedings. Therefore, he submits that these Reserve Bank of India bonds should not be released at this stage and it will be premature. Having heard the respective contentions of learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle in the case of Pankaj Guljarilal Gupta v. Collector of Customs [1995] 75 ELT 47 (Cal). Similar view has also been taken by the Madhya Pradesh High Court in the case of Agrawal Warehousing and Leasing Ltd. v. CIT [2002] 257 ITR 235. The Allahabad High Court has also taken the same view in the case of Hariharnath Agarwal and Sons (HUF) v. CIT [1996] 221 ITR 486. In view of the aforesaid consistent observations of the apex court and the various High Courts I do not find any reason to deviate therefrom. Therefore, the question is as to whether as on today or even on the date of filing of the writ petition whether there was any existing liability within the meaning of section 132B or whether such liability has been determined or not. In view of the order of the Commissioner (Appeals) there is no existing liability at all and the determination which was made by the Assessing Officer has been set aside. The aforesaid section is not intended to be made applicable for future course of action but will be applicable in praesenti. That is clear from two provisos mentioned in the aforesaid section. Therefore, I appropriately quote the said section 132B in its entirety. "132B. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assessing Officer or, as the case may be, the Tax Recovery Officer under authorisation from the Chief Commissioner or Commissioner under sub-section (5) of section 226 and the Assessing Officer or, as the case may be, the Tax Recovery Officer may recover the amount of such liabilities by the sale of such assets and such sale shall be effected in the manner laid down in the Third Schedule. (2) Nothing contained in sub-section (1) shall preclude the recovery of the amount of liabilities aforesaid by any other mode laid down in this Act. (3) Any assets or proceeds thereof which remain after the liabilities referred to in clause (i) of sub-section (1) are discharged shall be forthwith made over or paid to the persons from whose custody the assets were seized. (4) (a) The Central Government shall pay simple interest at the rate of eight per cent, per annum on the amount by which the aggregate amount of money seized under section 132 or requisitioned under section 132A, as reduced by the amount of money, if any, released under the first proviso to clause (i) of sub-section (1), and of the proceeds, if any, of the assets sold towards the discharge of the existing liability re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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