Jitendra Agarwal v. Income Tax Department & Anr

Jitendra Agarwal vs. income Tax Department & Anr. S.B.Cri. Revision Petition No.909/08 Date of Order : 05.01.2009 HON'BLE MR. JUSTICE MANAK MOHTA Mr.Pradeep Shah for the petitioner.Mr.Vishnu Kachhawaha , Public Prosecutor.Mr.Varun Gupta for respondent No.1. This revision petition has been filed by the petitioneragainst the order dated 24.07.08 passed by the learned Addl.Sessions Judge. No.2 Jodhpur in criminal revision petition No.52/08 by which he reversed the order of the learned Addl.ChiefJudicial Magistrate (Railways), Jodhpur dated 11.04.08,passed in Criminal Misc Case No.98/07, by which he orderedthat the seized amount of Rs.30,00,000/- under section 102Cr.P.C., be handed over to the petitioner. Further the learnedSessions Judge ordered that the Seized amount ofRs.30,00,000/- be handed over to the respondent. The brief facts of the case are as under:- It is revealed from the record that a sum of Rs.30,00,000/- was seized by the Government Railway Policeon 27.10.07 from Jayesh Kumar Patel, stated to be anemployee of the petitioner. It is alleged that no satisfactoryexplanation was given by the Jayesh kumar Patel. The IncomeTax Department was also intimated. Thereafter, the mattercame before the concerned Addl. Chief Judicial Magistrate,(Railways), Jodhpur for disposal of said amount. Whereaspetition was moved on behalf of Jitendra Agarwal that moneywas to be handed over to him, during that process, moneywas seized. It was also submitted that the petitioner is a regularIncome Tax payer and is having a Permanent Account No. Heis doing the business in the name of Haryana Steel Tradersand his Permanent Account No. is AAGP A8641R. On the other hand, the plea of the Income TaxDepartment was that the amount seized is the undeclaredproperty of the petitioner, that is subject to tax and otherpenalty, therefore, the amount be handed over to theDepartment. The learned Addl. Judicial Magistrate ( Railways),Jodhpur, after hearing both the parties, vide order dated11.04.08 over ruled the contention of the Department and ordered to hand over the seized amount on supurdginama tothe petitioner. Against that order, the concerned Departmentfiled revision before the learned Sessions Judge, Jodhpur.Later on that was transferred to the court of Addl.SessionsJudge No.2.Jodhpur, who, vide impugned order set aside theorder of the learned Addl.Chief Judicial Magistrate (Railways)and passed the order that the amount be handed over to theincome Tax Department. Against that the petitioner has filedthe present revision petition. Notice of this revision petition was given to theDepartment , record of the case was called and argumentswere heard. During the course of arguments, learned counsel for thepetitioner reiterated the contentions placed before the learnedlower courts and submitted that it is wrong to allege that theamount seized was undeclared property. But this amount wasto be handed over to the petitioner , he is having a PermanentAccount No. and there is satisfactory explanation of the sum indispute. The learned Magistrate has rightly passed the order ofgiving the same to the petitioner but the learned Sessions Judge, without thoroughly considering and appreciating thefacts of the case, passed an erroneous order in a hastymanner. Notice of this revision petition was given to theDepartment , record of the case was called and argumentswere heard. During the course of arguments, learned counsel for thepetitioner reiterated the contentions placed before the learnedlower courts and submitted that it is wrong to allege that theamount seized was undeclared property. But this amount wasto be handed over to the petitioner , he is having a PermanentAccount No. and there is satisfactory explanation of the sum indispute. The learned Magistrate has rightly passed the order ofgiving the same to the petitioner but the learned Sessions Judge, without thoroughly considering and appreciating thefacts of the case, passed an erroneous order in a hastymanner. Learned counsel for the petitioner further submitted thatthe petitioner is a regular Income Tax payer. Nothing isoutstanding against him. The Income Tax Department has noright to make a prayer for handing over this amount to them. Insupport of his contention, he also placed reliance on thejudgment given in CIT , Jodhpur vs. State of Rajasthan &Ors. [1998 Cri.L.R. (Raj.) 869]. Learned counsel for thepetitioner further submitted that during the pendency of theseproceedings, the petitioner has also filed a return showing histotal income to be Rs.66,61,610/- and the Department hasconveyed the maximum tax liability including interest etc. to theextent of Rs.25,65,000/-. Again on the given facts, a prayerwas made that the Income Tax Department has shown itsmaximum liability recoverable but they have no right to procurethe money which is exclusively of the petitioner. On theaforesaid submissions, a prayer was made to set aside theorder of the learned Sessions Judge and the order of the learned Magistrate be restored and the seized amount behanded over to the petitioner and the revision be allowed. On the contrary, learned counsel for the Income TaxDepartment submitted that the seized amount is theundeclared income of the petitioner. The Income Tax Authorityhas every right over that money, that is subject to tax andother penalty. The learned Addl. Sessions Judge has rightlyacceded their contention and has rightly ordered that theseized amount be handed over to the Department . During the course of arguments, learned counsel furthersubmitted that as the petitioner has filed the return that is to befinalised at the relevant time, but on the basis of return, anamount of Rs.25,65,000/-, including interests became due. Itwas prayed to dismiss the revision petition. I have considered the rival submissions and perused theimpugned order . The seized amount, as discussed aforesaid ,has notbeen claimed by any other person except the petitioner. The learned Chief Judicial Magistrate, after considering the rivalsubmissions, has passed an order to hand over this amount tothe petitioner on supurdginama. Against that order the revisionwas filed on the pretext that this amount is subject to tax andother liability. Therefore, this amount was ordered to be handedover to the Department. During the course of arguments, learned counsel for therespondent specifically stated that on the basis of return filedby the petitioner, an amount of Rs.25,65,000/- including interestbecame due of the Department. Thus, without going into thedetails of the case , as the petitioner is a regular income taxpayer, he is having his Permanent Account No., he has filedreturn and on the basis of return a maximum liability of tax,including interest, has been calculated that is ofRs.25,65,000/-. At this stage I am of the opinion that theIncome Tax Department has no claim over and above thatamount. Thus, on the basis of aforesaid discussion, the orderpassed by the learned Addl.Sessions Judge dated 24.07.08 is During the course of arguments, learned counsel for therespondent specifically stated that on the basis of return filedby the petitioner, an amount of Rs.25,65,000/- including interestbecame due of the Department. Thus, without going into thedetails of the case , as the petitioner is a regular income taxpayer, he is having his Permanent Account No., he has filedreturn and on the basis of return a maximum liability of tax,including interest, has been calculated that is ofRs.25,65,000/-. At this stage I am of the opinion that theIncome Tax Department has no claim over and above thatamount. Thus, on the basis of aforesaid discussion, the orderpassed by the learned Addl.Sessions Judge dated 24.07.08 is quashed and set aside and the order passed by the learnedChief Judicial Magistrate (Railways) dated 11.04.08 is modifiedto this extent that out of the amount seized of Rs.30,00,000/- asum of Rs.25,65,000/- be handed over to the Income TaxDepartment . That will be subject to final out come of theassessment and the remaining amount of Rs.4,35,000/- behanded over to the petitioner. Thus the revision is disposed ofaccordingly. (MANAK MOHTA), J. l.george