2021 (4) TMI 354 - HC - Income Tax

Court Orders Response to Seized Cash Appeal, Mandates Hearing & Decision in 4 Weeks Following Election SOP.

The HC disposed of the Writ Petition, directing respondents to consider the petitioner's representation for the return of seized cash, taking into account ... Release of seized cash - Standard Operating Procedure of the Election Commission - mandamus under Article 226 - investigative determination of ownership of seized property - right of personal hearing in administrative adjudicationMandamus under Article 226 - release of seized cash - investigative determination of ownership of seized property - Whether this Court should grant a positive direction for immediate release of the seized cash to the petitioner - HELD THAT: - The court declined to issue a positive direction for immediate release because the respondents have not admitted liability and the claim as to ownership of the seized cash is under investigation. In such circumstances, a writ of mandamus directing release cannot be issued without completion or outcome of the inquiry establishing entitlement. The court noted the respondents' position that investigation must determine whether the cash belongs to the Trust (the school) or to the managing trustee in his individual capacity, and treated the petition for immediate release as premature. [Paras 18, 21]No positive direction for immediate release; writ for mandamus refused on the present record because there is no admission of liability and the matter is under investigation.Standard Operating Procedure of the Election Commission - release of seized cash - right of personal hearing in administrative adjudication - Whether the respondents should be directed to consider the petitioner's representations and pass final orders - HELD THAT: - The court directed the first and second respondents to consider the representation dated 18.03.2019 and to pass final orders on merits and in accordance with law after giving due consideration to the Election Commission's Standard Operating Procedure and the Division Bench judgment of the Patna High Court in M/s. Indian Traders v. State of Bihar and others. The respondents were to afford the petitioner sufficient opportunity, including a right of personal hearing, and to complete the exercise within four weeks from receipt of the order. The direction is administrative and procedural, requiring expeditious consideration rather than an immediate substantive release without investigation. [Paras 22, 23]Respondents directed to consider and decide the representations on merits in accordance with law (including the SOP and relevant judicial precedent), after giving the petitioner a personal hearing, within four weeks.Final Conclusion: The petition for a mandamus directing immediate release of the seized cash is refused because liability has not been admitted and the ownership is under investigation; however, the respondents are directed to expeditiously consider the petitioner's representations, apply the Election Commission SOP and the cited Patna High Court decision, afford a personal hearing, and pass a reasoned order within four weeks. Issues Involved:1. Legality of the seizure of cash by the State Surveillance Team/Flying Squad.2. Compliance with the Standard Operating Procedure (SOP) of the Election Commission of India.3. Authority of the Income Tax Department to retain the seized cash.4. Prematurity of the Writ Petition filed by the petitioner.5. Consideration of representations for the return of the seized cash.Issue-wise Detailed Analysis:1. Legality of the Seizure of Cash:The petitioner, a registered Public Charitable Trust running educational institutions, claimed that cash amounting to Rs. 68,14,000 was seized by the State Surveillance Team/Flying Squad on 12.03.2019 while their Managing Trustee was en route to deposit the money in the bank. The petitioner asserted that the seizure was unjustified as the cash belonged to their School and was accounted for.2. Compliance with the SOP of the Election Commission of India:The petitioner argued that the Standard Operating Procedure (SOP) issued by the Election Commission of India on 29.05.2015 was not followed. Specifically, Paragraphs 7, 8, and 16 of the SOP mandate the registration of an FIR within 24 hours of seizure and the release of cash if no FIR is filed within seven days. The petitioner contended that no FIR was registered, and thus, the retention of the cash was illegal.3. Authority of the Income Tax Department to Retain the Seized Cash:The respondents, represented by the Income Tax Department, maintained that the investigation was ongoing to determine whether the seized cash belonged to the Managing Trustee in his individual capacity or to the School. They argued that the Writ Petition was premature as the investigation had not concluded, and thus, they could not release the cash.4. Prematurity of the Writ Petition:The respondents contended that the Writ Petition was filed prematurely without waiting for the outcome of the investigation. They emphasized that only after the investigation could it be concluded whether the cash belonged to the School or the Managing Trustee, and thus, the petition was not maintainable.5. Consideration of Representations for the Return of the Seized Cash:The petitioner submitted several representations to the District Election Officer/District Collector and the Assistant Director of Income Tax Department (Investigation) requesting the return of the seized cash, citing urgent financial needs for the School. Despite these representations, the cash was not returned, prompting the petitioner to seek judicial intervention.Judgment:The Court acknowledged that the respondents had not admitted liability to release the seized cash and that the investigation was still pending. Therefore, a positive direction for the release of the cash could not be issued under Article 226 of the Constitution of India. However, the Court directed the respondents to consider the petitioner's representation dated 18.03.2019 expeditiously, taking into account the SOP of the Election Commission of India and the Division Bench Judgment of the Patna High Court in a similar case. The respondents were instructed to provide a personal hearing to the petitioner and pass final orders within four weeks.Conclusion:The Writ Petition was disposed of with directions to the respondents to consider the petitioner's representation and make a decision on the release of the seized cash in accordance with the law and relevant SOPs. No costs were awarded, and the connected miscellaneous petition was closed.