TMI Blog2020 (12) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent No.5 before the CIT(A) Mumbai, who is the competent authority to render findings on the factual aspects of the matter, we do not deem it fit to interfere in the matter at this stage. Therefore, we decline to exercise our writ jurisdiction under Article 226 of the Constitution of India in view of pendency of the appeal before the CIT(A). - WRIT PETITION NO.2928 OF 2019 - - - Dated:- 22-12-2020 - UJJAL BHUYAN AND ABHAY AHUJA, JJ. Mr. Sushant Murthy a/w Shyamli Hajela i/by H M Legal Associate- Advocate for the Petitioner. Mr. Arvind Pinto -Advocate for the Respondent. Mr. Fraser M. Alexander Advocate for the Respondent No. 5 (THROUGH VIDEO CONFERENCING) PC. Heard. 2. By this Petition filed under Article 226 of the Constitution of India, 1950, Petitioner is seeking to set aside the impugned order dated 31st July, 2019 passed by Respondent No.1 on Petitioner's application under Section 132 (B) of the Income Tax Act, 1961 (the Act ), for release of 7kg of gold seized by the authorities on 28th November 2016 from Respondent No. 5. 3. Prayers made by the Petitioner in this Petition are as under: A. Issue a Writ of Certiorari or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of Respondent No. 5. Statements of Respondent No. 5 were recorded. It is submitted that the said 7kgs of gold belonged to the Petitioner and 1kg was for the stock-in-trade of Respondent No.5 for his business purpose. 8. Petitioner made application for release of the seized gold to Respondent No.1 on 4th October, 2017. 9. However, since the Principal Commissioner had failed to decide the said application dated 4th October, 2017 for release of 7kgs of seized gold even after 23 months, Petitioner filed Writ Petition No. 1202 of 2019 before this Court seeking similar reliefs as in this petition. 10. On 24th June, 2019, this Court had passed the following order in the said writ petition: 1 The above Writ Petition is filed by the petitioner seeking directions against the respondents to release 7 Kgs. of gold belonging to the petitioner and seized from Shri Gaurav Surana. The petition has also sought further directions not to include the petitioner s stock-in-trade in the assessment of Gaurav Surana. The petitioner has annexed an application dated 4.10.2017 made to the Principal Commissioner of Income Tax-32 seeking redressal of their grievance. They have stated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant documents during the search proceedings. Even on the premises of M/s. Asher Eternity Bless Jewel, 68/72, 4th Floor, Ambika CHS, Champa Gali, Office no.406/B, Kalbadevi Road, Mumbai 400 002, neither the details related to the gold seized was available nor the details were provided by Shri Gaurav Vinod Surana. 3. In this respect, a report was called from the ACIT-32(1), Mumbai, in which he has observed as under:- (i) It is found from the Exhibit G of the Writ petition no.1202 of 2018 filed by the applicant that the applicant in reply to the Question no.9 of the statement u/s. 131 dated 28.11.2016 has stated as under:- I submit the issue vouchers given to Asher for 2 kgs on 01.11.2016 and for 5 kg on 26.11.2016. Further, on 26.11.2016 another 2 kg gold was given to him along with necessary voucher. The 2 kg issued on 01.11.2016 was converted into new gold ornaments and received from M/ s. Asher Eternity Bless Jewel, Mumbai on 22.11.2016 at Trichy. I also submit the necessary transactions entered in our books of accounts viz. Gold Manufacturing account, Finished ornaments Stock book. (ii) Shri. Gaurav Vinod Surana in his statement u/s. 132(4) dated 28.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the applicant during the proceedings, hence the provisions of 132B of the Act is not applicable. 4. An opportunity was also given to the applicant i.e. M/s. New Lakshmi Jewellery vide letter dated 10.07.2019 to file submissions before the Pr.CIT-32, Mumbai as per the directions of the Hon ble Bombay High Court s order dated 24.06.2019. In response to the letter, the assessee vide his written submission dated 18.07.2019, $ 30.07.2019 has stated the seized material forms part of the stock-in-trade handed over to the proprietor Asher Eternity Bless Jewel, Mumbai for doing job work of making ornaments. This fact has been verified by the Assistant Director of Income Tax (Investigation), Trichy on the date it was seized at the Airport. He had also confirmed that the stock had been purchased by the petitioner and a report as to the genuineness of the transaction had also been submitted in this regard and also prayed for release of the seized gold. 5. I have gone through the submissions of the assessee and the report of the ACIT-32(1), Mumbai. On perusal of the above, it is found that the gold bullion has not been seized from the hands of the claimant i.e. M/s. New Lakshmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. Act is hereby dismissed. 5.4 This order is passed in compliance to the directions of the Hon ble Bombay High Court s order in the Writ Petition No.1202 of 2018 dated 24.06.2019. 13. Being aggrieved by the said order of rejection, Petitioner has filed the present writ petition seeking the reliefs set out above. 14. Respondent Nos.3 and 5 have filed their reply affidavits. 15. In its reply, Respondent No.5 has stated that the Intelligence Unit Officer at the Mumbai Airport had not considered the requisite voucher regarding 7kgs of gold received from the Petitioner. His statements were recorded in duress and he has retracted the statements given to the tax authorities. He had also made a request to conclude the assessment and return the 8kgs of seized gold. Following the seizure, the Income Tax Department completed the assessment of Respondent No.5 for A.Y 2017-18 and raised a demand of ₹ 2,26,52,883/- as tax payable by Respondent No.5. On that basis, the seized gold has not been released by the Respondent authorities. Against the order of assessment, Respondent No.5 has filed appeal. During the hearing, copy of the assessment order as well as copy of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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