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Judgment
The petitioner claims directions for release of the seized gold being 1069.790 grams as legally due to it u/s 132B(3) of the income tax Act, 1961, and consequential orders including compensation. The petitioner claims to be a dealer in gold chains and had sent two consignments to one M/s. Sangam Chains, Mumbai, with whom he has regular dealing, on July 7, 2001. On July 9, 2001, certain seizure operations were conducted in the luggage van of Ashram Express which departed from Ahmedabad. Certain articles including the petitioner''s jewellery were seized; a panchnama was apparently drawn. This led to initiation of other proceedings and statement of Ashok Kumar Ambalal and Company was recorded to establish the ownership of 548.04 grams gold chains sent by the present petitioner. The said Ashok Kumar Ambalal and Company deposed that the gold chains weighing 548.04 grams belonged exclusively to the writ petitioner; copies of the bills were also annexed to the affidavit. In view of these, an intimation u/s 158BD was sent by the Assessing Officer at Ahmedabad to the writ petitioner''s Assessing Officer confirming that the seized jewellery belonged to the petitioner. A letter was issued later u/s 158BD on July 17, 2006. By assessment order dated June 1, 2007, the Assessing Officer accepted the assessee''s explanation with respect to the consignment of 548.04 grams gold chain sent to Ashok Kumar Ambalal and Company and did not reckon it as part of the assessee''s undisclosed income. With regard to the second part of the consignment, i.e., 521.770 grams gold chains, the Assessing Officer determined the same to be the assessee''s undisclosed income. The assessee''s appeal was accepted by the Commissioner of income tax (Appeals) on May 17, 2010. The Commissioner of income tax (Appeals) deleted the addition of the amount representing the value of 521.770 grams of gold. The Revenue apparently accepted this order, the order had thus become final. The Commissioner of income tax (Appeals)''s order especially paragraphs 3.5 and 4.1-4.2 are as follows:
3.5 The Assessing Officer accepted the claims of the assessee in respect of the gold chains sent through M/s. Ashok Kumar Ambalal and Co. However, in respect of the gold chains sent through M/s. Mahendra Kumar, the Assessing Officer held that the gold chains were not part of the ''declared/explained income/asset'' and determined its value at Rs. 2,15,642 as undisclosed income of the assessee. Aggrieved by this order the appellant is in appeal.
In the grounds of appeal, the appellant has filed on both technical grounds and on the merits.
4.1 The technical objections contained in grounds 1, 2, 3, 4, 5, 6, 7, 9, 10 and 13 and the additional grounds are rejected for the reasons that section 158BD proceedings were initiated in this case as a result of requisition made u/s 132A on July 17, 2001, following a search by the Enforcement Wing u/s 37(3) of the FEMA on the luggage van of Ashram Express on July 9, 2001. Thus, grounds 1, 2, 3, 4, 5, 6, 7, 9, 10 and 13 and the additional grounds are dismissed.
4.2 However, there is merit in the objections of the appellant relating to the treatment of Rs. 2,15,642 as undisclosed income by the Assessing Officer. Sh. Mangal Singh, a partner in the appellant firm, admitted in his statement on oath recorded on April 26, 2007, before the Assessing Officer that gold chains were sent through 2 angadias, M/s. Ashok Kumar Ambalal and Co. and M/s. Mahendra Kumar to M/s. Sangam Chains, Mumbai. As per the assessment record, the copy of the ledger account of M/s. Sangam Chain, Mumbai, recording the sale of gold chains weighing 1069.79 grams as per Bill No. 027 dated July 7, 2001, was also furnished. Also on record is a confirmation from M/s. Sangam Chain, Mumbai, in support of the claim of the appellant that gold chains weighing 1069.79 grams as per Bill No. 027 dated July 7, 2001, were sent through 2 angadias, M/s. Ashok Kumar Ambalal and Co. and M/s. Mahendra Kumar. In the light of these evidence and also in the absence of any contrary findings by the Assessing Officer, the addition arising out of the transaction of Rs. 2,15,642 through M/s. Mahendra Kumar is unjustified. As a result, grounds 8,11, and 12 of the appeal are allowed.
The writ petitioner submits that despite the finality which the order of the Commissioner attained and despite several letters and representations, its gold jewellery has not been released so far.
After notice was issued to the parties, the Assessing Officer filed a return and affidavit admitting the basic facts. The affidavit also states that:
Affidavits were detained by the petitioner from angadias stating that the gold jewellery of 548.04 grams belonged to the petitioner-assessee.
The Assessing Officer in the assessing order did not dispute the ownership of gold jewellery of the petitioner-assessee.
The Assessing Officer at Ahmedabad sent intimation to the Assessing Officer at Delhi confirming that gold jewellery (548.04 grams) belongs to the petitioner-assessee.
The Assessing Officer accepted in the assessment order that 548.70 grams of gold belonged to the petitioner-assessee. Other consignment of 521.75 grams was treated as undisclosed income.
The Commissioner of income tax (Appeals) in the appeal order deleted the addition made by the Assessing Officer in case of 521.750 grams gold jewellery, which is accepted by the Revenue.
The assessee submitted an application for release of gold jewellery in the absence of any outstanding demand.
The Assessing Officer issues an order stating that no seized materials were received by him in case of the assessee. The assessee writes a letter on December 15, 2010, to the Assessing Officer, Ahmedabad, regarding not receiving the seized materials by the Assessing Officer at Delhi. The seized materials were not handed over to the Assessing Officer at Delhi.
The assessee-petitioner is the bona fide claimant of gold chain aggregating 1069.79 grams. Gold jewellery of 1069.79 grams which was seized belonged to the petitioner-assessee. As regarding the gold chain weighing 548.04 grams, the Assessing Officer accepted the ownership of the assessee. As regarding the gold chain weighing 521.75 grams, the Commissioner of income tax (Appeals) deleted the addition made by the Assessing Officer, the Department also accepted the order of the Commissioner of income tax (Appeals). There is no demand outstanding against the assessee-petitioner.
As per the provisions of section 132B(3) of the income tax Act, the assessee is entitled to get its seized material released. The Department is making all efforts to ensure that the seized material is returned to the assessee by the next date of hearing.
During the hearing, the learned counsel for the Revenue submitted that the concerned Assessing Officer has no clue as to the whereabouts of the seized materials and that he is making all efforts to trace the same from the other authorities including the Enforcement Directorate. Counsel also stated that the gold jewellery cannot in any event be released until confirmation is obtained from other statutory authorities that no dues exist against the petitioner vis-�-vis the seized articles.
This court is of the opinion that once the order of the income tax authorities achieved finality and the Revenue did not choose to go in appeal, further arguments about whether the gold is lying with the income tax authorities or the Enforcement Directorate, is really an academic submission. The material on record either in the form of the Assessing Officer''s order or the Commissioner of income tax (Appeals)''s order" nowhere disclosed that seizure by the income tax authorities was made from the custody of the Enforcement Directorate. The Assessing Officer''s affidavit is also silent about this. By all accounts, the material on record suggests a joint search of the luggage van at Ahmedabad which resulted in proceedings u/s 158BD. Having regard to the conspectus of these facts, the respondents-income tax authorities are directed to forthwith take all steps and ensure that the gold jewellery is released to the petitioner within two weeks from today and file an affidavit of compliance within three weeks from today.
List on January 28, 2013.
April 8, 2013.--It is an admitted fact that since the last date of hearing all the jewellery has been returned to the petitioner at Ahmedabad. Now, nothing remains with the respondents. However, since the petitioners were driven to litigation to retrieve the jewellery even after the order was passed by the Commissioner of income tax (Appeals) as far back as on May 17, 2010, we feel that the petitioner ought to be awarded costs. Thus, while disposing of this writ petition, as no further directions are necessary, we direct that the respondents, in particular, respondent No. 6 shall pay costs of Rs. 15,000 to the petitioner within two weeks.
The writ petition stands disposed of. All pending applications stands disposed of.