TaxTMI 
TaxTMI 
2024 (10) TMI 1371
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.... in hand of Rs. 34,02,005/- be released. 2. Succinctly stated, the facts of the case are that an amount of Rs. 34,02,005/- was seized by the respondent from the bank locker belonging to the petitioners. After the seizure, petitioners applied within 30 days explaining their source of acquisition of such assets and prayed for release of money. Petitioners had disclosed to the respondent about the cash in their lockers prior to the seizure vide letters dated 17.01.2023 and 21.08.2023. The seizure took place on 21.09.2023. Petitioners had filed application on 09.10.2023 and 06.11.2023 before the authorities for release of the cash, however, the respondent has not passed any orders on the same. Consequently, the petitioners were forced to fil....
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....n under Section 132 or requisition under Section 132A of the Act. 4. Counsel for the petitioners has placed reliance on M/s Harish Forex Services Pvt. Ltd. vs. Assistant Director of Enforcement D.B. Civil Writ Petition No.14857/2022 decided by the Division Bench of this Court on 03.01.2024, wherein Division Bench has held that the second proviso to Section 132B of the Act is mandatory in nature and the respondents in that case were directed to pass orders for release of the assets pursuant to the search conducted within four weeks. Counsel has also placed reliance on Mitaben R. Shah Vs. DCIT 2010 (2) TMI 684 (Gujarat High Court), Ashish Jayantilal Sanghavai (Prop. Of M/S Vir Impex) Vs. ITO 2022 (4) TMI 1285 (Gujarat High Court), Khem Cha....
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....d assets. "[Provided that where the person concerned makes an application to the Assessing Officer within thirty days from the end of the month in which the asset was seized, for release of asset and the nature and source of acquisition of any such asset is explained] to the satisfaction of the Assessing Officer, the amount of any existing liability referred to in this clause may be recovered out of such asset and the remaining portion, if any, of the asset may be released, with the prior approval of the [Principal Chief Commissioner or] Chief Commissioner or [Principal Chief Commissioner or] Commissioner, to the person from whose custody the assets were seized: Provided further that such asset or any portion thereof as is....
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.... asset after recovering the liability may be released with prior approval of appropriate authorities to the person from whose custody the assets were seized. Thus, for applying the second proviso, there has to be some satisfaction of the Assessing Officer. This clearly goes to show that once the Assessing Officer has arrived at a satisfaction with regard to the existing liability and with regard to the return of the assets, then the second proviso would apply and the assets or part of the assets as the case may be shall be released within a period of 120 days. Thus, the second proviso is mandatory and the same would come into play only after the satisfaction of the Assessing Officer and the determination by him and after approval of the app....
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....rt held that the second proviso to Section 132B is not mandatory as in absence of statutory intent shown to exist, it may not be inferred through the process of legal reasoning-that if no order is passed within a period of 120 days, seized assets must be released notwithstanding its impact on the recovery of existing and likely demands. Division Bench of Allahabad High Court has dealt with the judgments given by Gujarat High Court and has not subscribed to the reasoning given by Gujarat High Court and Gauhati High Court. Division Bench of Allahabad High Court held that the provision does not stipulate any consequence of automatic release as the assets would first have to be invoked by the assessee by filing a proper application, then if con....
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....is Court in the judgment of Harish Forex Services Pvt. Ltd. (supra), has not discussed Section 132B (4)(a) & (b) of the Act and on bare reading of the proviso to Section 132B, the same was held to be mandatory. The said judgment is per incuriam as provisions of Section 132B(4)(a) & (b) of the Act has not been dealt with by the Division Bench. Division Bench in Harish Forex Services Pvt. Ltd. (supra) has also not considered the fact that second proviso has been made subject to the first proviso. 15. We are of the considered view that the judgment of the Allahabad High Court has dealt with Section 132B(4)(a) & (b) of the Act and has rightly come to the conclusion that the second proviso to Section 132B of the Act does not contemplate autom....