Rp/838/2018 Of The Deputy Commissioner Of Income Tax v. P.l.tomy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940 RP.No. 838 of 2018 IN WP(C). 23790/2018 REVIEW PETITIONER/S: 1THE DEPUTY COMMISSIONER OF INCOME TAXCENTRAL CIRCLE, THRISSUR, 680001CENTRAL CIRCLE, THRISSUR, 680001 2THE PRINCIPAL COMMISSIONER OF INCOME TAX(CENTRAL)KOCHI 682 018TAX(CENTRAL)KOCHI 682 018 BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT/S: P.L.TOMYPANTHALLOOKARAN HOUSE, KODAKARA P.O,THRISSUR 680 684. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 26.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RP.No. 838 of 2018 IN WP(C). 23790/2018 ORDER This Court earlier disposed of the writ petition through its judgment dated 01.08.2018; paragraph 5 of the judgment reads: “5. In this circumstance, I hold that the 1[st] respondentwill release the seized gold to the petitioner on hisfurnishing bank guarantee for the gold, excluding 20%he has already deposited.” 2. To have this direction modified, the Department has filedthis review petition. 3. The learned Standing Counsel for the Department drawsmy attention to the Ext.P8 circular, which has, according to him, set out the scope of amendment to Section 132 of the Act,introduced through the Finance Act, 2003. He also asserts thatthe assessed tax comes to Rs.7,80,0,567/-. Earlier, the petitioner paid 20% of the demanded tax, that is Rs.1,54,15,651/-, as aprecondition to prevent further departmental recovery. 4. Now in this writ petition, the petitioner has sought the RP.No. 838 of 2018 IN WP(C). 23790/2018 release of gold. The gold is worth about 55 lakh rupees. As theextracted portion of the order reveals, the question of deducting 20% from the amount to be paid by the petitioner does not arise:20% relates to the assessed tax and it comes to Rs.1,54,15,651/-, but the cost of gold is only about Rs.55,00,000/-. In other words,the deposit of 20% itself is far above the value of the gold. So theamount then paid as a precondition was under differentcircumstances, and that has nothing to do with the value of thegold. 5. Now, pending further adjudication, the petitioner wantsthe release of the gold. For that purpose the petitioner shouldpay, according to the learned Standing Counsel, the entire valueof the gold, without reference to what has been deposited earlier. 6. In response, the learned counsel for the petitionersubmits that the petitioner will deposit the value of the gold byway of bank guarantee rather than in cash. The learnedStanding Counsel agrees for this arrangement. RP.No. 838 of 2018 IN WP(C). 23790/2018 7. I, therefore, modify paragraph 5 of the judgment: remove the portion that allows the petitioner to deduct 20% of the amount already paid; instead, the petitioner can furnish thebank guarantee for the value of gold and get it released. The revision petition thus stands disposed of; the judgmentstands modified. Sd/- DAMA SESHADRI NAIDU JUDGE das