TMI Blog2003 (4) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... d October 29, 2001, under section 144A of the Income-tax Act, 1961, for proceeding under section 158BD, read with section 158BC. Annexure 10 to the writ petition and the direction dated December 12, 2001, issued by the Additional Commissioner of Income-tax to the Deputy Commissioner of Income-tax, annexure 12 to the writ petition and for refund with interest of the seized amount. The petitioner has also prayed for a mandamus restraining the respondents from proceeding with block assessment under section 158BC. Heard learned counsel for the parties. It is alleged in paragraph 2 of the petition that the petitioner is assessed to income-tax for the last 20 years. The Voluntary Disclosure of Income Scheme, 1997 (VDIS), a copy of which is annexure 1 to the petition provided in section 64 that any person can make a declaration under section 65 of any income chargeable to tax for any assessment year mentioned in section 64(1). In case the declarant was a person other than a company or firm, the tax was to be charged at 30 per cent. of the voluntarily disclosed income. Section 64(2) of the said scheme provided that persons against whom notices under section 142 or 148 of the Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence the amount seized be returned to him. The petitioner then on January 19, 1998, wrote a letter to the Commissioner of Income-tax, Meerut, that the amount of Rs. 6,10,000 which was seized from the petitioner by the officials of the Income-tax Department on October 17, 1997, be returned to him as this amount was already declared under the scheme and tax of Rs. 2,55,000 has already been deposited before the seizure. He had also sent a letter dated January 20, 1998, to the Commissioner of Income-tax, Meerut. The true copies of these letters are enclosed as annexures 5 and 6 to the petition. On December 10, 1999, the petitioner received the notice dated December 3, 1999, for submitting the return for block assessment vide annexure 7 to the petition. On January 31, 2000, the petitioner filed his return before respondent No. 3. On February 2, 2001, the petitioner wrote a letter to the Assessing Officer, respondent No. 3 stating the full facts vide annexure 8 to the petition. In reply to various queries of respondent No. 3 the petitioner submitted his reply dated October 25, 2001, stating that he was entitled to make declaration under section 65 of the Scheme and hence he cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, chartered accountant, and he had come to the hotel to give it to Amarjeet Singh Lamba. When he was confronted with the sworn statement of his driver, he admitted that he had brought the money from his home and he had taken this money as loan from Amarjeet Singh Lamba 10-15 days ago and had come to return it. He refused to answer any further question and denied having any financial or business connection with Amarjeet Singh Lamba, despite the statement that he had taken the money from him. He also did not explain the nature of entries in the documents found from his possession and seized. Hence, the authorised officer was of the opinion that the money was unaccounted and the documents contained incriminating entries relating to earning of income on which tax had not been paid. The petitioner did not object to the seizure. In paragraph 8 of the counter affidavit it is stated that the declaration under the Voluntary Disclosure of Income Scheme was prepared and sent by post on October 18, 1997, to the Commissioner of Income-tax, Meerut, from Delhi along with the challan and the copy of general entry dated October 17, 1997. There was no mention of seizure of cash or documents under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 132 was issued in the name of the petitioner or for his premises. There is also no dispute that no action was taken against the petitioner under sections 132(1), 132A or under section 133A of the Income-tax Act. Hence, in our opinion the petitioner was fully eligible to make a declaration under section 64 of the said Scheme for which certificate under section 68(2) had already been granted. As such, in our opinion, the petitioner was entitled to the immunity under section 68 and was entitled for the refund of the amount seized. In paragraph 22 of the counter affidavit it has been admitted by the Department that when the Scheme came into force no notice under section 142(1) or 148 was issued to the petitioner, nor any action under section 132 or 133A was taken against him. In paragraph 27 of the counter affidavit the department has admitted that the petitioner was not a resident of the search premises and no separate search warrant had been issued in his name. In our opinion, the petitioner did not suffer from the infirmity as contemplated under section 64 of the Voluntary Disclosure of Income Scheme, 1997, Scheme. In Killick Nixon Ltd. v. Deputy CIT [2002] 258 ITR 627 ..... 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