Mr.s.a.kamleshkumar Amarchand (Huf v. The Commissioner Of Income Tax, Central-I

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM Mr.S.A.Kamleshkumar Amarchand (HUF) ... Petitioner Vs. 1.The Commissioner of Income Tax, Central-I, No.46, (Old No.108), New Building, Mahatma Gandhi Road, Nungambakkam, Chennai-34. 2.The Deputy Commissioner of Income-tax, Central Circle-I (2), No.46, (Old No.108), New Building, Mahatma Gandhi Road, Nungambakkam, Chennai-34. 3.The Assistant Commissioner of Income-tax, Central Circle-I (2), No.46, (Old No.108), New Building, Mahatma Gandhi Road, Nungambakkam, Chennai-34. ... Respondents Petition filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorarified Mandamus, to call forthe records on the file of the 3[rd] respondent pertaining toproceeding in AADHK0824K dated 17.05.2017, and quash the sameand consequentially direct the respondents to release entiregold, jewellery and cash. For Respondents : Mr.A.P.Srinivas, for R1 to R3 Standing Counsel O R D E R Heard Mr.Kumarpal R Chopra, learned counsel appearing forthe petitioner and Mr.A.P.Srinivas, learned Standing Counsel,appearing for the respondents 1 to 3. With the consent oneither side, the writ petition is taken up for final disposal. https://hcservices.ecourts.gov.in/hcservices/ 2.The petitioner seeks for issuance of Writ ofCertiorarified Mandamus, to quash the order passed by the thirdrespondent dated 17.05.2017, and to direct the revenue torelease the entire gold, jewellery and cash, which were seizedfrom the business premises. 3.It may not be necessary to make an elaborate discussion onthe merits of factual aspects, in the light of the relief to begranted by this Court in this writ petition. 4.Earlier the petitioner had filed a writ petition inW.P.No.14793 of 2016, seeking for issuance of writ of mandamus,to direct the respondents herein to release 20,643.97 gms ofgold and jewellery seized vide Panchanama dated 21.11.2012. Thesaid writ petition was disposed of by order dated 22.04.2016,with a direction to the third respondent viz., the Commissionerof Income Tax (Appeals) – 18, to dispose of the appeal filed bythe petitioner on merits and in accordance with law within aperiod of three months from the date of receipt of a copy ofthis order. 5.With regard to the prayer made by the petitioner forrelease of the gold and jewellery, a direction was issued to thethird respondent herein to consider the petitioner's prayer forrelease of gold and jewellery, taking into consideration theratio in the case of Puspa Ranjan Sahoo v. Assistant Director ofIncome Tax (Inv.) reported in (2012) 252 CTR Reports. Pursuantto the directions, the respondent has passed the impugned order. 6.It is not disputed by the revenue that the entire taxliability payable by the petitioner has been fully cleared.However, it is a matter on record that the petitioner haspreferred an appeal as against the order passed by theCommissioner of Income Tax (Appeals) before the Income TaxAppellate Tribunal (in short “ITAT”) by appeal dated 15.11.2016,the said appeal is now pending before the Tribunal. With regardto levy of interest, the petitioner has filed a petition underSection 220(2A) of the Income-tax Act for waiver, by petitiondated 10.05.2017, and the same is pending before the Prl.Commissioner of Income Tax, Central-I, Chennai. The respondenthas rejected the petitioner's request for release of gold andjewellery, on the ground that the claim for interest underSection 220(2) of the Income-tax Act is outstanding; there is alikelihood of penalty demand on finalization of penalproceedings consequent to the order of the Hon'ble ITAT and noapproval should be given for release where the valuation or theownership of any particular seized assets is disputed, for which the circular of the C.B.D.T. dated 21.01.2009 has been reliedon. the circular of the C.B.D.T. dated 21.01.2009 has been reliedon. 7.Thus, what has primarily weighed in the mind of the thirdrespondent to reject the petitioner's request is that there is alikelihood of levy of penalty upon finalization of theproceedings by the ITAT, apart from the fact that the demand forinterest is yet to attain finality in the light of theapplication filed by the petitioner for waiver. Thus,considering the facts and circumstances of this case, this Courtis of the considered view that the petitioner should approachthe Income-tax Appellate Tribunal for appropriate interimdirection. This is so because, if any orders are passed in thiswrit petition, it may result in conflicting orders, since thelarger issue is now pending before the Tribunal. The Tribunal,in its discretion, taking into consideration the facts of thepetitioner's case and also the fact that the petitioner has paidthe tax, may be inclined to grant appropriate interim relief. 8.A submission has been made by the learned counsel for thepetitioner that apart from search and seizure operationconducted in the business premises of the petitioner, similarsearch and seizure operation was conducted in the businesspremises of the petitioner's brother. Though order ofassessment has been passed against the petitioner's brother,till date they have not paid taxes, but the Department hasreleased the gold and jewellery to the petitioner's brother. Itis submitted that it is not known under what basis, the thirdrespondent has released the gold and jewellery to thepetitioner's brother, especially when they are defaulters inpayment of tax as computed by the Assessing Officer. In myconsidered view, this aspect of the matter can also be placedbefore the ITAT by the petitioner in an application, which theycan move for appropriate interim direction for release of goldand jewellery. 9.Accordingly, this writ petition stands disposed of bygiving liberty to the petitioner to file proper interlocutoryapplication in the pending appeal before the ITAT seeking forrelease of gold and jewellery. It is open to the petitioner toplace all points before the ITAT and if, such application isfiled, the ITAT is requested to give preference to theapplication and consider for an earlier disposal of theapplication, in the light of the fact that the gold andjewellery are in the custody of the Department for over fiveyears. The petitioner is also entitled to raise plea that healone has been discriminated, when his brother has been grantedthe relief for release of the gold and jewellery. The ITAT isrequested to take a decision on the interlocutory application as expeditiously as possible preferably within a period of fourweeks from the date of completion of pleadings in theapplication. Needless to say that the ITAT shall not beinfluenced by any observations made by the third respondent inthe impugned order dated 17.05.2017. No costs. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant RegistrarabrTo1.The Commissioner of Income Tax, Central-I, No.46, (Old No.108), New Building, Mahatma Gandhi Road, Nungambakkam, Chennai-34.2.The Deputy Commissioner of Income-tax, Central Circle-I (2), No.46, (Old No.108), New Building, Mahatma Gandhi Road, Nungambakkam, Chennai-34.3.The Assistant Commissioner of Income-tax, Central Circle-I (2), No.46, (Old No.108), New Building, Mahatma Gandhi Road, Nungambakkam, Chennai-34.+1 cc to M/s.A.P.Srinivas Advocate sr 67157W.P.No.23799 of 2017arivaa04/10/2017 https://hcservices.ecourts.gov.in/hcservices/