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TaxTMI 
TaxTMI 
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2025 (12) TMI 1531
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.... factual background surrounding the case is that the petitioners herein, were subjected to a search and seizure operation at their residence which was conducted by the respondent/Revenue from 09.10.2024 to 11.10.2024, based on a search warrant authorized by the respondent no.3 under Section 132 of the Income Tax Act, 1961 (the Act). 3. During the search, the following gold and jewellery were seized by the Revenue: i. Gold (coins etc.) - 104 Grams; ii. Jewellery - 4,808 Grams approx. being the value/weight based on the converted gold weight while the actual net weight is 2,519 Grams; iii. The total value of the jewellery found was Rs. 5,39,76,316/- out of which jewellery amounting to Rs.1,51,16,209/- was released and the seizure was of Rs. 3,88,60,107/-. 4. Ms. Kavita Jha, learned Senior Advocate appearing for the petitioners herein, stated that the search and seizure were illegal. As per her, the petitioner no.1, for and on behalf of himself and the rest of the petitioners addressed a letter to the department dated 25.11.2024 submitting the documents and pointing out that all the seized gold/jewellery was disclosed by the petitioners in their respec....
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....the specified period as undertaken before this Court. However, the impugned order was passed only on 18.07.2025, 11 days after the date of the order of this Court, dismissing the application filed by the petitioners under section 132B of the Act and rejecting the release of jewellery/gold on completely perverse and frivolous grounds. 7. It is her submission that the impugned order is bad in law as the same has been passed by completely disregarding the fact that all the seized gold/jewellery has been duly disclosed by the petitioners in their respective ITRs/WTRs. The petitioners are regular and compliant income tax assessees under the Act. She stated during the search and seizure operation, the Revenue Officials gathered and seized all the jewellery/gold ornaments from the respective bedrooms of the petitioners despite them categorically pointing out to the Officials that the jewellery/gold is part of their disclosed incomes: i. WTRs filed by the petitioners and the earlier HUF's; ii. Jewellery Valuation Report obtained from time to time by the petitioners, jointly and severally; iii. ITRs for different assessment years filed by the petitioners. 8.....
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.... Director of Income-tax/Commissioner authorizing the search at the time of furnishing the search report. (iv) In all cases, a detailed inventory of the jewellery and ornaments found must be prepared to be used for assessment purpose. 3. These guidelines may please be brought to the notice of all the officers in your region." 11. These instructions, she stated, are mandatory in nature and should have been strictly complied with. She also stated that the valuation of the jewellery under consideration is Rs.3.88 crore which is just one percent of the petitioners' total disclosed wealth, which is Rs.574.97 crore. It is also her submission the Revenue has reproduced a truncated version of the table of the WTR of the petitioners whereby the disclosures in the hands of (i) RD Gupta, HUF; (ii) Dinesh Gupta; (iii) Shashank Gupta; (iv) Diksha Gupta, have been eliminated. Hence, the value of jewellery in their hands has been completely ignored. The petitioners have also placed before us their value of assets as disclosed by them, which according to them is squarely covered by the CBDT circular reproduced above. Details of the WTR for AY 2015-16, as placed on record by the petit....
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.... this methodology by the petitioners and vehemently opposes it. As per her, the method of valuation adopted by the Revenue is alien to the valuation principle as well as the provisions of the Act. She further stated that it would be wrong to allege that the valuation report has been obtained after the date of search as the petitioners being a big family with various members and descendants conduct a valuation exercise on a routine basis, every 5-6 years. 15. It is her submission that the valuation report submitted by the petitioners dated 29.06.2017 was obtained by the petitioners from a government registered valuer under section 34AB of the Wealth Tax Act, 1957. This report provides all the necessary details such as name and address of the registered valuer, contact details, registration no. being CAT VIII-141 and hence, merely in the absence of the PAN of the valuer, this report cannot be brushed aside. Instead, Revenue should have conducted independent enquiries to test the authenticity of this report. As per her, the petitioners submitted all the available documents with the department before the lapse of the statutory time period of 120 days. 16. She stated the tone and ....
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....She stated that there is no outstanding demand against the petitioners no.1,3 and 4, as on the date of search. After the introduction of data management on the ITBA Portal, the data pertaining to each and every assessee is available and accessible to the officers exercising jurisdiction over such assessees. Hence, the contention of the respondent that time was taken for transfer of assessment records to his office is nothing but a bald excuse which is required to be outrightly rejected. 20. She questioned how the records of the assessees had not been received by the officials when the impugned order itself mentions that the cases of these assessees have been centralized. 21. She also submitted that the respondents have alleged an outstanding demand of Rs. 89,84,934/- against petitioner no.2 as per the order dated 18.03.2024, but the same disregards their own order dated 03.09.2025 under Section 154/143(3), wherein the said demand has been reduced to Rs. 21,24,398/-. She stated this order of 18.03.2024 suffers from various mistakes which are apparent form the record. For this, the petitioner no. 2 moved an application for rectification under Section 154 of the Act. She further....
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....anting a blanket moratorium for the period of 120 days loses logicality. .........:" 25. She also drew our attention to the case of Mitaben R Shah vs DCIT: SCA No.10659 of 2009, of the Gujarat High Court to say that withholding of assets seized, beyond the period of 120 days is not tenable in law. Similarly, she also highlighted the decision in the case of Mul Chand Malu (HUF) vs. ACIT/DCIT: 384 ITR 46 (Gauhati), whereby, the Gauhati High Court held as under: "8. The above quoted Section 132B was discussed and interpreted by a Division Bench of the Gujarat High Court in Mitaben R. Shah v. Dy. CIT [2011] 331 ITR 424. In that case, like in the case at hand, no decision was taken by the Revenue Department within 120 days from the date on which the last authorization for search under Section 132 was executed despite filing of an application within 30 days for release of seized assets. And the Revenue Department later dismissed the application for release of assets after the expiry of 120 days on numerous grounds. The Court held that when an application is made for the release of assets under first proviso to Section 132B(1)(i) of the Act explaining the nature and s....
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..... He stated that Shashank Gupta could not provide any justification or documentary evidence to substantiate the source of the purchase of the said jewellery/gold and therefore, in view of the CBDT instruction no.1916 of 11.05.1994, jewellery/gold worth Rs. 3,88,60,107/- were seized, and the balance jewellery and gold were released. 31. He stated pursuant to the search the PANs of the Petitioners were centralized to Central Circle-31. The PAN of Rajesh Gupta was transferred from Central Circle-15, Delhi on 25.02.2025. The PAN of Mrs. Renu Gupta was transferred from Ward 28(1), Delhi, on 06.12.2024. The PAN of Shashank Gupta was transferred from Ward 28(1), Delhi, on 06.12.2024 and the PAN of Ms. Diksha Gupta was transferred from Ward 53(1), Delhi, on 25.01.2025. 32. He further stated appraisal report in the case of BDR Group was received in the office of answering respondent on 08.04.2025, while the seized material was handed over on 08.04.2025 & 05.05.2025. The assessment record in the case of Rajesh Gupta was received from Central Circle-15, Delhi on 16.04.2025. The assessment records in the case of Renu Gupta, Shashank Gupta & Diksha Gupta are still pending with the Jurisdi....
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....he search proceedings, the assessee was not able to produce any bill/invoice/valuation report to justify that the jewellery was declared by them in their WTR. He also relied upon their WTR to state that no inventory of the jewellery/gold was mentioned therein. The assessee only mentioned the total amount representing the value of the jewellery held on the last day of the financial year in question. 37. It is also submitted by him that in terms of the settled principle of law under Section 132 of the Act, in the case of any person who is in possession of inter-alia, any gold (coins) or jewellery and such gold (coins) or jewellery represents either wholly or partly income or property which has not been disclosed, then in such case Revenue has the power to seize any such gold (coins) or jewellery, if found unexplained at the time of search. In light of the same, the contention that the search is illegal, as alleged by the assessees is devoid of any merit. 38. Mr. Menon also stated that the petitioners herein have questioned the methodology used during the valuation at the time of the search, however, this valuation was carried out at the premises of the petitioners and was accep....
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....jump in the valuation of jewellery in the possession of Rajesh Gupta and Renu Gupta for the AY 2015-16, the value of jewellery with Rajesh Gupta was Rs. 36,82,585/- and with Renu Gupta was Rs. 56,69,749/-, but on 29.06.2017, the jewellery in their possession amounted to Rs. 3,05,42,663/-. No addition or documentary evidence has been provided by them to show that this income was co- terminus to the income declared by them in their ITRs for the relevant AYs. He further stated that as per Schedule III of the Wealth Tax Act 1957 read with Section 7 of the same Act, the valuation being represented in the WTRs/ should represent the latest value of gold as on the valuation date. He also stated that in the absence of documentary evidence to show the purchase or inheritance of the jewellery, the same was lawfully seized by the Revenue 44. He stated that Renu Gupta also mentioned in the application for the release of the jewellery that she received jewellery worth Rs. 1,67,94,003/- as a result of the oral partition between the members of the HUF on 01.10.2024, however, the same needs to be verified from the members of the HUF during the course of the assessment proceedings. Reliance was p....
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....he provision in view of the aforesaid principle that a right created by a legal fiction is ordinarily, only a product of express legislation. 48. He stated that the expression "as is referred to in the first proviso" as against the words "assets seized under section 132" signifies the clear legislative intent of the second proviso to not be applicable to any seized material but only to the seized material with respect to which the conditions mentioned in the first proviso are fulfilled. 49. He has also referred to Section 132B(4) of the Act which provides for payment of interest on the seized items on the expiry of 120 days as provided in the second proviso to Section 132B(1)(i), and stated where the law provides for a certain consequence on the happening of an event, no other consequence can be read in. He has relied upon Notes of Clauses to the Finance Act, 2002, whereby Section 132B was first introduced, the relevant extract of which is reproduced as under: "It is proposed to substitute section 132B to harmonise the provisions contained therein with the provisions for assessment in search cases laid down under Chapter XIV-B, and to further provide for release of a....
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....econd proviso to Section 132B(1)(i) of the Act. 30. That being the only consequence provided, we find it difficult to persuade ourselves to the reasoning of the Gujarat High Court in Mitaben R. Shah vs. Deputy Commissioner of Income-Tax And Another (supra)-the sheet anchor of the submissions advanced by Senior Advocate for the petitioner, perusal of that decision reveals, mandatory intent was read into the language of Section 132B(1)(i) of the Act by relying on the reasoning/ratio in Cowasjee Nusserwanji Dinshaw vs. Income Tax Officer : (1987) 165 ITR 702. That was a case of proceeding under Section 132 (8) of the Act and not Section 132 B of the Act, as it then existed. *** 31. On the test of consequences provided, Cowasjee Nusserwanji Dinshaw (supra) case was a different case altogether. It provided a statutory injunction against retention of books of accounts and other documents beyond a period of 180 days, unless reasons for their continued retention were recorded in writing with the approval of the Commissioner. In absence of reasons recorded and approval granted prior to the expiry of 180 days time limit, the seized books of accounts and documents had to be ....
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.... way, it may be done in that way or not at all, we find the same to be inapplicable to the present law. In our opinion, the provision in question [Section 132B(1)(i)] being directory, the jurisdiction of the Assessing Authority to deal with the petitioner's application dated 15.09.2022 did not lapse or abate upon expiry of the period of 120 days. Since that stipulation of law is only directory, it survives to the Assessing Authority to deal with the application, even today. 35. We may also observe at this stage, if on due application of mind, the Assessing Authority reaches a conclusion that the nature and source of Rs. 36,12,000/- seized from Om Prakash Bind was duly explained and if assessing officer is adequately satisfied that that amount was neither required for satisfaction of any outstanding demand or satisfaction of demand that may arise pursuant to the assessment proposed to be made, such refundable amount would attract liability of interest under Section 132B(4) of the Act read with Rule 119A of the Rules. 36. In view of the above, we decline to issue the writ of Mandamus as prayed. Instead, we dispose of the writ petition with a direction on the Ass....
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....tory functionary is asked to perform a statutory duty within the time prescribed, the same would be directory and not mandatory. 55. He submitted that although Section 132 B (1)(i) allows the assessee to seek release of the seized items, the decision taken by the AO under the first proviso is a tentative view on the satisfaction of the explanation provided by the assessee regarding the nature/source of acquisition of the seized asset. As per him the assessee does not suffer a final or determinative view as a result of the order and may still provide further explanation and supporting documents justifying the acquisition of the assets. If the AO is satisfied with the explanation provided by the assessee, he may release the seized assets, without availing the same for recovery against the existing liabilities and demands that may arise in the search assessment. 56. He also submitted that it is well-settled that judicial review under Article 226 is not directed against the decision but is confined to the decision-making process. To substantiate this, he relied upon the judgment in the case of Bachan Singh v. Union of India, (2008) 9 SCC 161 and Union of India v. Lt. Gen. Rajendr....
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....tem. The form of statement prescribed for Rule 18(2)(ii) is Form O-8. He relied on this to state that the jewellery belonging to an assessee is to be supported/accompanied by a Statement or a Report describing each item of jewellery, which must form part of the return of the assessee. Hence, this argument of the petitioners is devoid of any merit. 61. He submitted that the original application filed by the assessee on 25.11.2024 was accompanied by a valuation report dated 31.03.2012 but in this report, the assessee was not able to reconcile the jewellery seized with the disclosures made in the WTR. Subsequently, the petitioners filed another reminder letter dated 23.01.2025 accompanied by another Valuation Report dated 29.06.2015. The AO dealt with the same in detail in the impugned order. He stated that the Valuation Report by itself is not sufficient to prove the nature/source of acquisition of jewellery. 62. To the argument of the petitioners that the Memorandum of Dissolution of the HUF dated 16.11.2024 recording the oral partition was filed, Mr. Menon stated that this document has been executed a month after the search operation which was conducted on 09.10.2024 and in l....
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....oners have pointed out to the officers (a) WTR filed by the petitioners and earlier HUFs, (b) Jewellery Valuation Report; and (c) ITRs of the different AYs; (v) The respondents have wrongly relied upon the CBDT instructions dated 16.10.2023 on the assumption that the instructions are applicable to future liabilities which may arise or may not arise pursuant to the assessment proceedings. As per paragraph 3 thereof the assets can be released if the AO is satisfied that the nature and source of this jewellery is explained; (vi) The CBDT instructions dated 11.05.1994, more specifically paras (i) and (iii), are mandatory in nature and should be strictly complied with; (vii) The respondents have ignored the valuation of the jewellery in the hands of the petitioners; (viii) The value of the jewellery in the WTR and in the valuation report is at the cost of acquisition and not at the market value; (ix) There is lack of clarity as to which rule or concept of conversion rate has been adopted by the Revenue. The valuation report submitted by a valuer dated 29.06.2017 was obtained by the petitioners from the registered va....
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....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 Commissioner or Commissioner, to the person from whose custody the assets were seized : Provided further that such asset or any portion thereof as is referred to in the first proviso shall be released within a period of one hundred and twenty days from the date on which the last of the authorisations for search under section 132 or for requisition under section 132A, as the case may be, was executed. (ii) if the assets consist solely of money, or partly of money and partly of other assets, the Assessing Officer may apply such money in the discharge of the liabilities referred to in clause (i) and the assessee shall be discharged of such liability to the extent of the money so applied; (iii) the assets other than money may also be applied for the dischar....
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....y following the expiry of the period of one hundred and twenty days from the date on which the last of the authorisations for search under section 132 or requisition under section 132A was executed to the date of completion of the assessment under section 153A or under Chapter XIV-B". The period of 120 days (90 days up to September 30, 1984) was previously stipulated in section 132(5) of the Income- tax Act until its omission by the Finance Act, 2002 with effect from June 1, 2002. Section 132(5) also prescribed that the remaining portion of the assets must be "forthwith released" to the person from whose custody they were seized after satisfaction of the tax liability existing against such person. At that time, i.e., prior to the amendments brought about by the Finance Act, 2002, section 132B(4)(b) envisaged payment of simple interest at the rate of 15 per cent. per annum on the retained money computed from the date immediately following the expiry of six months from the order under sub-section (5) of section 132. It is also worth emphasizing that seized assets for which a valid explanation has been furnished and which therefore do not partake of the nature of undisclosed income or....
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....ice it to state that the facts in the said judgment are clearly distinguishable in as much as the question which fell for consideration in that petition before this Court was the date from which the Income Tax Department is liable to pay interest on the amount of money /assets seized from the petitioner therein in the course of search conducted on 02.07.2002 under Section 132 of the Act. In the said case, the search was conducted on 02.07.2002, when an amount of Rs. 35,15,000/- in cash was discovered at the premises of the petitioner, out of which, there was a seizure of Rs. 33,00,000/-. It was the case of the department that during the block assessment proceedings, the assessee could sufficiently explain only part of the cash seized during the search. The block assessment proceedings were completed vide the assessment order dated 30.07.2004. According to the department, the assessee's undisclosed income aggregating to Rs. 12,43,232/- attracted a tax demand of Rs. 7,83,236/- together with a penalty of Rs. 7,83,236/- under Section 158BFA(2) of the Act, raising the total demand of Rs. 15,66,471/- pursuant to the order. The balance amount Rs. 17,33,529/- was released on 27.09.2004. Up....
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....So far as this sum of Rs. 17,33,529 is concerned, interest under section 132B(4) became payable on July 30, 2004, which is the outer limit of the period prescribed under section 132B(4)(b). Since the payment was eventually made on September 27, 2004, the petitioner would be entitled to compensation on account of delay for the period August 1, 2004 to September 27, 2004. We direct that compensation/ damages, in terms of Sandvik Asia, be paid by the respondents to the petitioner on the sum of Rs. 17,33,529 for the period August 1, 2004 to September 27, 2004, at the rate of nine per cent per annum. *** 17. So far as the sum of Rs. 15,66,471 is concerned, the appeal was decided, (in favour of the petitioner), by the Commissioner of Income-tax (Appeals) by orders dated December 15, 2004. The respondents are liable to pay interest on the said sum from November 1, 2002 to December 15, 2004, under section 132B(4)(b). The respondents have without any justification whatsoever paid only a sum of Rs. 31,328 as interest for the period September 1, 2004 to December 31, 2004, (the date of the Assessing Officer's order is July 30, 2004) glossing over and ignoring the period N....
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....than two weeks from the date of receipt of the writ of this Court or from that date of receipt of certified copy of this order, whichever is earlier." 74. In the case of Mul Chand Malu (HUF) (supra) the Gauhati High Court has relied upon the decision of the Gujarat High Court in the case of Mitaben R Shah (supra) and held as under:- "8. The above quoted Section 132B was discussed and interpreted by a Division Bench of the Gujarat High Court in Mitaben R. Shah v. Dy. CIT [2011] 331 ITR 424. In that case, like in the case at hand, no decision was taken by the Revenue Department within 120 days from the date on which the last authorization for search under Section 132 was executed despite filing of an application within 30 days for release of seized assets. And the Revenue Department later dismissed the application for release of assets after the expiry of 120 days on numerous grounds. The Court held that when an application is made for the release of assets under first proviso to Section 132B(1)(i) of the Act explaining the nature and source of the seized assets and if no dispute was raised during the permissible time of 120 days by the Revenue Department, it had no autho....
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....pplication would survive for consideration by the Assessing Authority, in terms of first proviso to Section 132B(1)(i) of the Act. 22. In grammar, the words 'shall' and 'may' indicate different intent. The word 'shall' is normally used to indicate to cause a mandatory effect whereas 'may' indicates action to be taken as per the doers volition. In usage, the difference may also indicate the degree of politeness invoked by the user. However in law though application of the rules of grammar is not excluded, at the same time interpretation in law as to mandatory or directory nature of the word 'shall' is not to be decided solely on the strength of rules of grammar. Well recognized principle in that regard involve looking at the object and purpose and whether consequences of non-compliance have been prescribed in law. 23. In State of U.P. vs. Manbodhan Lal Srivastava: AIR 1957 SC 912, a five-Judge bench of the Supreme Court observed as below: 11. An examination of the terms of Article 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clause of that article. If it were held that the....
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....equence of invalidity or only directory, i.e., a direction the non- observance of which does not entail the consequence of invalidity, whatever other consequences may occur. But in each case the court has to decide the legislative intent. Did the legislature intend in making the statutory provisions that nonobservance of this would entail invalidity or did it not? To decide this we have to consider not only the actual words used but the scheme of the statute, the intended benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention of the same. In the present case we have to determine therefore on a consideration of all these matters whether the legislature intended that the provisions as regards the reference to the Mines Board could be contravened only on pain of invalidity of the regulation." (emphasis supplied) 25. Then, in C. Bright vs. District Collector And Others; (2021) 2 SCC 392 a three Judge bench of the Supreme Court had the occasion to consider whether the word 'shall' used (in Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, ....
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....ory. In a seven-Bench judgment, this Court was considering as to whether the power of the Returning Officer to reject ballot papers is mandatory or directory. The Court examined well-recognised rules of construction to observe that a statute should be construed as directory if it relates to the performance of public duties, or if the conditions prescribed therein have to be performed by persons other than those on whom the right is conferred. 11. In a judgment reported as Remington Rand of India Ltd. v. Workmen, Section 17 of the Industrial Disputes Act, 1947 came up for consideration. The argument raised was that the time limit of 30 days of publication of award by the Labour Court is mandatory. This Court held that though Section 17 is mandatory, the time- limit to publish the award within 30 days is directory inter alia for the reason that the non- publication of the award within the period of thirty days does not entail any penalty. 12. In T.V. Usman v. Food Inspector, Tellicherry Municipality, the time period during which report of the analysis of a sample under Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 was to be given, was held to be direc....
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.... disposal of consumer disputes. In this case, an individual was called upon to file his written statement in contradiction for a pubic authority to decide the issue before it" (emphasis supplied) 27. Upon, that discussion of the law, the Supreme Court then concluded (in C Bright vs. District Collector And Others: (2021) 2 SCC 392) as below: "21. The Act was enacted to provide a machinery for empowering banks and financial institutions, so that they may have the power to take possession of secured assets and to sell them. The DRT Act was first enacted to streamline the recovery of public dues but the proceedings under the said Act have not given desirous results. Therefore, the Act in question was enacted. This Court in Mardia Chemicals, Transcore and Hindon Forge (P) Ltd. has held that the purpose of the Act pertains to the speedy recovery of dues, by banks and financial institutions. The true intention of the legislature is a determining factor herein. Keeping the objective of the Act in mind, the time-limit to take action by the District Magistrate has been fixed to impress upon the authority to take possession of the secured assets. However, inability ....
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.... consequence of non-compliance of Section 132B(1)(i) of the Act is by way of payment of interest at the highest rate provided by the legislature i.e. @ of 18 % per annum. The period for which such interest may become payable has also been specified under that provision. By imposing the levy of interest on the revenue, a plain reading of sub-section (4) of Section 132B(1)(i) of the Act, the legislature itself contemplated cases where orders may remain to be passed by the Assessing Authority within the timeline provided under Section 132B(1)(i) of the Act. Payability of interest may arise only in a case where the order may have remained to be passed within a time stipulation provided under the second proviso to Section 132B(1)(i) of the Act. 30. That being the only consequence provided, we find it difficult to persuade ourselves to the reasoning of the Gujarat High Court in Mitaben R. Shah vs. Deputy Commissioner of Income-Tax And Another (supra)-the sheet anchor of the submissions advanced by Senior Advocate for the petitioner, perusal of that decision reveals, mandatory intent was read into the language of Section 132B(1)(i) of the Act by relying on the reasoning/ratio in ....
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....180 days and the consequence of its non adherence was also provided by way of release of the same. Therefore, 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 time of 120 days, seized assets must be released notwithstanding its impact on the recovery of existing and likely demands. 33. As noted above, similar stipulations of time provided under different enactments have been interpreted to be directory and not mandatory. Therefore, we are unable to pursue ourselves to subscribe to the reasoning that has found its acceptance by the Gujarat High Court in the case of Mitaben R. Shah vs. Deputy Commissioner of Income-Tax And Another (supra), Ashish Jayantilal Sanghavi vs. Income-tax Officer (supra),Nadim Dilip Bhai Panjvani vs. Income-tax Officer, Ward No.3 (supra) and Gauhati High Court in the case of Mul Chand Malu (HUF) vs. Assistant/Deputy Commissioner of Income Tax (supra). 34. Insofar as, learned Senior Counsel for the petitioner has invoked the principle-if an Act is required to be done in a particular way, it may be done in that way or not at all, we find the same ....
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....judgment in the case of Rajasthan High Court in Kanwaljeet Kaur & Anr (supra) wherein the counsels had referred to the aforesaid judgments including the judgments in Harish Forex Services Pvt Ltd v. Assistant Director of Enforcement, DB Civil Writ Petition No.14857/2022 decided on 03.01.2024; Mitaben R. Shah (supra); Ashish Jayantilal Sanghavi (supra); Khem Chand Mukim v Pr Director of Income Tax (Inv.), 2020 (1) TMI 1114 and Dipak Kumar Agarwal (supra) to hold in paragraph 11 onwards as under:- "11. As to whether the second proviso to Section 132B of the Act should be considered to be mandatory and whether the assets seized have to be released after the expiry of 120 days, came up for consideration before the Division Bench of this Court in Harish Forex Services Pvt. Ltd. (supra) and the Division Bench held that the provision is mandatory and the assets have to be released after the expiry of 120 days. Similar controversy arose before the Division Bench of Allahabad High Court in Dipak Kumar Agrawal (supra) and the Allahabad High Court 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 thr....
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....2B (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 automatic release on expiry of 120 days. 16. Consequently, the prayer of the petitioners for refund of the amount cannot be granted. However, since cash has been recovered from Bank locker and even prior to recovery, petitioners have informed the income tax authorities about cash lying in locker, we deem it proper to direct the authorities to decide the application of the petitioners within four weeks from the date of receipt of this order by a reasoned and speaking order after hearing the petitioners. It goes without saying that if the petitioners are able to satisfy their source, the amount has to be refunded with interest as provided under Section 132B (4)(a)& (b)of the Act. 17. In view of ....
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....nsidered view that a prior decision of this Court on identical facts and law binds the Court on the same points of law in a later case. In exceptional circumstances, where owing to obvious inadvertence or oversight, a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. The said principle was also noticed in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. [(2001) 6 SCC 356 : AIR 2001 SC 2293]" 83. In any case, we have already stated that we agree with the conclusion drawn by the Allahabad High Court in Dipak Aggarwal (supra). Insofar as the judgment in the case of Nadim Dilip Bhai Panjvani (supra) and ), Ashish Jayantilal Sanghavi vs. Income-tax Officer (2022) 444 ITR 457 is concerned, there also the Gujarat High Court has followed the mandate of its own judgment in the case of Mitaben R. Shah vs. Deputy Commissioner of Income-Tax And Another (supra) to hold that the Revenue is required to release and handover the seized assets in view of provisions of Section 132B(1). We have already held that in view of the conclusion drawn by the Allahabad High Court as followed....
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....rth Rs. 1,67,94,003/- as a result of the oral partition between the members of the HUF on 01.10.2024, needs to be verified. 87. Having noted the submissions of the parties, the issue is whether in the given facts, a direction can be given for release of the gold / jewellery by this Court in the proceedings under Article 226 of the Constitution. More particularly, when the AO is seized of the matter. The answer to the same, has to be in the negative. 88. This is primarily for the reason that the stand of the petitioners need to be looked into by the AO to come to the conclusion that the seized jewellery/ gold has been explained appropriately with proper evidence. 89. This Court cannot act as the AO by relying upon the stand taken by the petitioners to come to the conclusion that the jewellery need to be released in their favour as they have sufficiently explained the jewellery /gold. In this regard, we may refer to the judgment of the Supreme Court in the case of Principal Director of Income Tax (Investigation) & Ors. v. Laljibhai Kanjibhai Mandalia, 2022 INSC 719 wherein the Court held as under:- "29. In a celebrated judgment of this Court in Tata Cellular v. Unio....
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....680], per Lord Greene, M.R.)" xx xx xx 82. Bernard Schwartz in Administrative Law, 2nd Edn., p. 584 has this to say: "If the scope of review is too broad, agencies are turned into little more than media for the transmission of cases to the courts. That would destroy the values of agencies created to secure the benefit of special knowledge acquired through continuous administration in complicated fields. At the same time, the scope of judicial inquiry must not be so restricted that it prevents full inquiry into the question of legality. If that question cannot be properly explored by the judge, the right to review becomes meaningless. 'It makes judicial review of administrative orders a hopeless formality for the litigant. ... It reduces the judicial process in such cases to a mere feint.' Two overriding considerations have combined to narrow the scope of review. The first is that of deference to the administrative expert. In Chief Justice Neely's words: 'I have very few illusions about my own limitations as a judge and from those limitations I generalise to the inherent limitations of all appellate courts reviewing rate cases. It mus....