Wp(C)/23790/2018 Of Sri.p.l.tony v. Deputy Commissioner Of Income Tax Central Circle

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940 WP(C).No. 23790 of 2018 ------------------------ PETITIONER ---------- SRI.P.L.TONY, PANTHALLOOKARAN HOUSE, KODAKARA PO,THRISSUR-680684. BY ADVS.SRI.ANIL D.NAIR SRI.R.SREEJITH KUM.MEKHALA M.BENNY SRI.ACHYUT K PADMARAJ RESPONDENT(S): -------------- 1. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, THRISSUR-680001. 2. THE PRINCIPLE COMMISSIONER OF INCOME TAX (CENTRAL), KOCHI-682018. BY SRI.JOSE JOSEPH, SC, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.V. -------------------------- APPENDIX PETITIONER(S)' EXHIBITS----------------------- EXHIBIT P1 TRUE COPY OF MAHAZAR. EXHIBIT P2 TRUE COPY OF PROCEEDINGS DATED 15.02.2018. EXHIBIT P3 TRUE COPY OF LETTER DATED 27.01.2018. EXHIBIT P4 TRUE COPY OF ORDER DATED 19.02.2018. EXHIBIT P5 TRUE COPY OF REQUEST DATED 16.02.2018. EXHIBIT P6 TRUE COPY OF REMINDER DATED 3.04.18. EXHIBIT P7 TRUE COPY OF ORDER DATED 05.07.18. EXHIBIT P8 TRUE COPY OF RELEVANT PAGES OF CIRCULAR NO.7/2003 DATED 05.09.2003. 05.09.2003. EXHIBIT P9 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2010-11. A.Y.2010-11. EXHIBIT P10 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2011-12. A.Y.2011-12. EXHIBIT P11 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2012-13. A.Y.2012-13. EXHIBIT P12 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2013-14. A.Y.2013-14. EXHIBIT P13: TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2014-15. A.Y.2014-15. EXHIBIT P14: TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2015-16. A.Y.2015-16. EXHIBIT P15 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2017 FOR THE A.Y.2016-17 ALONG WITH CALCULATION STATEMENT. A.Y.2016-17 ALONG WITH CALCULATION STATEMENT. EXHIBIT P16 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2010-2011. THE STATUTORY AUTHORITY FOR THE A.Y.2010-2011. EXHIBIT P17 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2011-2012. THE STATUTORY AUTHORITY FOR THE A.Y.2011-2012. EXHIBIT P18 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2012-2013. THE STATUTORY AUTHORITY FOR THE A.Y.2012-2013. EXHIBIT P19 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2013-2014. THE STATUTORY AUTHORITY FOR THE A.Y.2013-2014. EXHIBIT P20 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2014-2015. THE STATUTORY AUTHORITY FOR THE A.Y.2014-2015. EXHIBIT P21 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2015-2016. THE STATUTORY AUTHORITY FOR THE A.Y.2015-2016. EXHIBIT P22 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2016-2017. THE STATUTORY AUTHORITY FOR THE A.Y.2016-2017. EXHIBIT P23 TRUE COPY OF THE STATEMENT OF THE PETITIONER DATED 23.2.2015. EXHIBIT P24 TRUE COPY OF THE STATEMENT OF THE PETITIONER ON 24.2.2016. EXHIBIT P25 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 25.10.2017 ISSUED TO THE PETITIONER. THE PETITIONER. EXHIBIT P26 TRUE COPY OF THE REPLY DATED 25.11.2017 FILED BY THE PETITIONER. PETITIONER. RESPONDENTS EXHIBITS: NIL --------------------- /TRUE COPY/ K.V. P.S.TO JUDGE DAMA SESHADRI NAIDU, J. EXHIBIT P22 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY PETITIONER BEFORE THE STATUTORY AUTHORITY FOR THE A.Y.2016-2017. THE STATUTORY AUTHORITY FOR THE A.Y.2016-2017. EXHIBIT P23 TRUE COPY OF THE STATEMENT OF THE PETITIONER DATED 23.2.2015. EXHIBIT P24 TRUE COPY OF THE STATEMENT OF THE PETITIONER ON 24.2.2016. EXHIBIT P25 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 25.10.2017 ISSUED TO THE PETITIONER. THE PETITIONER. EXHIBIT P26 TRUE COPY OF THE REPLY DATED 25.11.2017 FILED BY THE PETITIONER. PETITIONER. RESPONDENTS EXHIBITS: NIL --------------------- /TRUE COPY/ K.V. P.S.TO JUDGE DAMA SESHADRI NAIDU, J. ================================== W.P.(C) No.23790 of 2018 ====================================== Dated this the 1[st] day of August, 2018 JUDGMENT The petitioner, a proprietor dealing in jewellery, faced search and seizure proceedings. The revenue found, onphysical verification of the stock, that it was less by3947.95 grams. Thereafter, the authorities also searchedthe petitioner's residential premises, where they found19 packets of gold lockets weighing 1911.76 grams. The search and seizure took place on 23.02.2016.Eventually, the authorities completed the assessment on29.12.2017. 2. Aggrieved, the petitioner filed a statutory appeal after depositing 20% of the disputed tax. Now, the petitioner has come up with this writ petition seeking thefollowing reliefs: “a) Call for the records leading to issuance ofExt.P7 and quash the same by issuing a writ of -2- certiorari. b) To issue a writ of mandamus or such otherwrit, order or direction, directing the respondentsto return the gold seized during the course ofsearch as being violative of Sec.132 of the IncomeTax Act. c) Pending hearing and final disposal of the Writpetition, this Hon'ble Court be pleased to directthe respondents to release the goods seized videExhibit P1.” 3. In response to the submissions made by the petitioner's counsel, the learned Standing Counsel has strenuously contended that the petitioner ought to have filed anapplication under Section 132(b) of the Income Tax Act.This application must have been filed within 30 daysafter the seizure of the gold. He has neverthelesssubmitted that the petitioner may, as well, provide thebank guarantee, without prejudice to the revenue'srights and secure interim custody. 4. In response, the learned counsel for the petitioner W.P.(C) No.23790 of 2018 submitted that the petitioner has already paid 20% of the disputed tax as a pre-deposit, at the time of hisfiling the appeal. Therefore, he seeks that amountdeducted if at all this Court decides to put thepetitioner on terms, to have the interim custody of theseized gold. 5. In this circumstance, I hold that the 1[st] respondent will release the seized gold to the petitioner on hisfurnishing bank guarantee for the gold, excluding 20%he has already deposited. With these observations, I dispose of this Writ Petition.I clarify that this arrangement of interim relief will notaffect the rights of either party to the proceedings. Ialso observe that petitioner must keep the bankguarantee alive till the disposal of the statutory appeal. Sd/- DAMA SESHADRI NAIDU JUDGE