TMI Blog2006 (3) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... , the respondents are directed to depute one of their officials, not below the rank of an Inspector to go to the petitioner-company on every working day at a fixed time and permit the customers to redeem the jewels, if they are genuine persons. In case, any suspicion that any customer is a benami or a fictitious person, the deputed inspector may not allow them to redeem. The redeemed amount from the genuine customers is ordered to be deposited in a separate interest bearing account. If there is any inconvenience in following this proposal, liberty is given to the parties to approach this court. Notice." The main ground on which the impugned proceeding is challenged is that the conditions necessary for invoking section 132 are not satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a given point of time and so prohibitory order under section 132(3) was issued and the conditions have been satisfied. W.P. No. 932 of 2006 has been filed by the same petitioner for the issuance of a writ of mandamus directing respondents Nos. 1 to 3 to refund the petitioner a sum of Rs. 17,78,326 recovered by the first respondent from the fourth respondent out of the amounts standing to the petitioner's credit with the fourth respondent together with interest thereon. In the affidavit filed in support of the writ petition, apart from reiterating the contentions raised in W.P. No. 38997 of 2005, the petitioner in paragraph No. 10 of the affidavit has stated as follows: "10. Under section 132(1), the inspecting officers are authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nks to pay the amount to the Department. The stand taken by respondents Nos. 1 to 3 is thus totally untenable on facts and in law. 16. On the above facts, the petitioner called upon the first and fourth respondents to inform the provision of law under which the first respondent has called upon the fourth respondent to pay to him the amount standing to the petitioner's credit in the fourth respondent bank and further put the first and fourth respondents to notice that the only provision under the Income-tax Act which permits such recovery is section 226 which applies only to a tax defaulter. The petitioner is not a tax defaulter and none of the respondents have alleged that any tax is due from the petitioner. Hence the provisions of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the petitioner and the respondents. Accordingly, a joint memo dated February 23, 2006, signed by the respective learned counsel for the petitioner and the respondents has been filed, which reads as follows: "Issues agreed by both parties. 1. Strong room will be opened by the Department. 2. Amounts kept in a separate account as per High Court orders dated December 21, 2005, will be deposited in an F.D. for 2 years in the same bank in the petitioner's name which the petitioner cannot foreclose. 3. Amounts taken by the Department by closing F.D. will be redeposited in F.D. for 2 years in the same bank in the petitioner's name which the petitioner cannot foreclose. 4. Gold and jewellery seized will remain with the Department. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness concerns." Referring to the abovesaid averments, learned senior counsel submitted' that the allegation of the respondents itself is that Rajappa and his family members have deposited Rs. 1.2 crores with the petitioner, but the same was not reflected in the books of account. Admittedly, as stated in paragraph No. 16 of the counter-affidavit, Shri D. Rajappa and his family members have availed of loan for more than Rs. 3.5 crores from the Benefit Fund out of the total loan of Rs. 5 crores. Hence, prima facie the amount which was available in the current account and seized by the Department could not be said to be that of Rajappa and his family members and on the other hand the amount which was available in the current account would onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to refund the cash seized and the amounts withdrawn from the current account of the petitioner held with the fourth respondent-bank. Accordingly, the respondents are directed to refund the cash seized and the amounts withdrawn from the current account of the petitioner with the fourth respondent-bank, viz., a sum of Rs. 17.78 lakhs immediately on receipt of a copy of this order. Further, the petitioner and the respondents are directed to abide by clauses 1, 2, 3, 4, 6 and 7 contained in the joint memo. The joint memo filed by the petitioner and the respondents will form part of the records. Further, it is made clear that this court has not expressed any opinion on the merits of the case. It is open to the respondents to proceed furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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