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TMI Blog2020 (12) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... sue a Writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India, calling for the records of the Petitioner's case and after going into the validity and legality thereof to quash and set aside the impugned order dated 31.07.2019 passed by the Principal Commissioner of Income Tax - 32, Mumbai, B. Issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the Respondents to a. forthwith release the 7 kgs of gold seized from Mr. Gaurav Surana on 28.11.2016. b. exclude the 7 kgs of sized gold belonging to the Petitioner from the assessment of Mr. Gaurav Surana." 4. Petitioner is a partnership firm engaged in the business of trading in gold jewellery in Tiruchirappalli, Tamil Nadu. In the usual course of business, Petitioner obtains metal gold loans from Banks and gets the same converted into gold jewellery through job-workers for onward sale to end customers either in India or abroad. It is stated that gold is procured from the Banks under loan agreements/delivery challans and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Writ Petition that the Principal Commissioner has failed to decide the application even after 23 months. The petitioner has through his Advocate, therefore, prayed for appropriate reliefs. 2. In view of the above, it would be appropriate to issue necessary directions to the Principal Commissioner of Income Tax-32 to decide the application filed by the petitioner dated 4.10.2017 at the earliest. In the circumstances, the following order is passed:- (i) The Principal Commissioner of Income Tax-32 is directed to dispose of the application dated 4.10.2017 filed by the petitioner and pending since the last several months, within a period of six weeks from the date of this order. (ii) The Principal Commissioner shall give personal hearing to the petitioner if they so desire. 3 All contentions of the parties are kept open." 11. Pursuant to the aforesaid order, Petitioner was given an opportunity to file submissions vide letter dated 10th July, 2019 after which written submissions dated 18th July, 2019 and 30th July, 2019 were filed by the Petitioner before the Principal Commissioner. 12. Thereafter, vide order dated 31.07.2019, Respondent No.1 has rejected the Petitioner's app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lary, 3, Chinnakdai Street, Tiruchirapalli-620002, Tamilnadu on 01.11.2016 for the manufacturing of gold jewellery pertaining to 2 KG of 24 KT bullion, which I agreed for job work. Accordingly, voucher for manufacture was raised by M/s. New Lakshmi Jewellery, Tiruchirapalli on 01.11.2016. Further, again on 26.11.2016 I received another call from M/s. New Lakshmi Jewellery, 3, Chinnakdai Street, Tiruchirapalli- 620002 for the manufacturing of gold jewellery pertaining to 5 KG of 24 KT bullion, which I agreed for job work. Accordingly, voucher manufacture was raised by M/s. Lakshmi Jewellery, Tiruchirapalli on 2.11.2016. With respect to the remaining 1 KG bullion, I do not have any supporting document." (iii) Shri. Gaurav Vinod Surana in his retraction affidavit dated 09.12.2016 submitted by the petitioner as Exhibit 'D-1' in para xii has stated as under; "Later on they asked me to show the papers for the same. That is when I searched my bag I found only one voucher of 5000 gms dated 26-11-2016 along with other voucher of 2000gms dated 01-11-2016 which accidentally I carried in my bag from Mumbai and I couldn't locate the other voucher No.2014 of 2000gms dated 26-11-2016. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .11.2016. The application u/ s. 132B has been filed in this office on 04.10.2017 i.e. after ten months for the release of the seized gold bullion which itself proves that it is an afterthought and completely violation of the principles laid down in the section 132B of the Act for filing application for release of seized money/ bullion before the concerned Pr. Commissioner of Income Tax. It is pertinent to note that the seized assets in any form can be released only after the recovery of any liability emanating out of it. It is further added that no report regarding the genuineness of transaction has been received in this office from the ADIT (Inv.), Trichy as claimed by the applicant M/s. New Lakshmi Jewellery, Trichirapalli. It is self declaration by the applicant that the seized gold bullion of 8kg pertaining to his business only. However on the contrary, the facts are not coincided as the assessee Sh. Gaurav Surana himself admitted that the gold of 8 kg. is to be treated as unaccounted and from undisclosed sources and in absence of any satisfactory documentary evidence, it has been seized. 5.1 The assessment in the case of Shri Gaurav Surana has been completed in this case vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is not aware of the factual details of the Petitioner since it is not assessed under him and he is not the assessing officer of the Petitioner. Therefore, he does not have the particulars of the Petitioner and is unable to comment on the gold loans availed of by the Petitioner nor has he examined the documents submitted by the Petitioner. He has denied that the seizure is in violation of section 132(1)B(iii) of the Act. He has confirmed the seizure of 8kgs of gold from Respondent No.5 on 28th November, 2016 as he was unable to explain the source thereof stating that the confirmation letter dated 12th January, 2017 of Respondent No.5 appears to be an after thought as the seizure had occurred on 28th November, 2016. It is stated that the assessment was made on the returns filed by Respondent No.5 and since he was not in a position to explain the source of the gold, the same was added to his income and the assessment completed. 17. We have heard learned Counsel for the parties, perused the papers and proceedings and also given our anxious consideration to the matter. 18. We observe from the above that there is a dispute on the factual aspects of the matter regarding ownership of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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