Wp(C)/32229/2008 Of L.javerchand Jewellers Pvt.ltd v. Assistant Director Of Incometax (Inv)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WP(C).No. 32229 of 2008(J) -------------------------- PETITIONER(S): --------------------- 1. L. JAVERCHAND JEWELLER PVT. LTD., CHOKSI CHAMBER, SHOP NO.1, BHAVANI MARKET, 2ND FLOOR, IST AGYARI LANE, ZAVERI BAZAR, MUMBAI - 400 002, REP. BY ITS DIRECTOR ANAND J. JAIN. 2. RAMANLAL S. JAIN, S/O. SRI SAKKAR CHAND, KALA CHOWKI ROAD, MIRCHAR, MUMBAI - 400 012. BY ADV. SRI.P.RAGHUNATH RESPONDENT(S): ------------------------ ASSISTANT DIRECTOR OF INCOME TAX (INV), KANNUR. BY SC SRI. JOSE JOSEPH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - -WP.(C) No.32229 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of November, 2008 JUDGMENT Petitioners have approached this court seeking mandamus tothe respondents to release the assets retained forthwith. Challenge is raisedto all further proceedings pursuant to the detention of the assets. Briefly putthe case of the petitioners is as follows:First petitioner is the manufacturer and trader in goldornaments and gold bullion and is an assessee under the Income Tax Actwhile the second petitioner is one of his employees. On 28.10.2006 thefirst petitioner sent ornaments weighing 4149.090 grams to Kerala throughthe second petitioner and one Sri. Lakshman Chowdhari. While the secondpetitioner and Sri. Lakshman Chowdhari were returning after completingtheir business, which are more specifically mentioned in the writ petition,the taxi came to be stopped by the police and who took into custody thebalance gold covering 1125.000 grams. Crime was registered. Firstpetitioner as also the respondent applied for custody of the gold ornamentsunder Section 451 of the Criminal Procedure Code. By Ext.P6 order theMagistrate has granted custody of the assets to the Department. Thereafterrespondent issued notice to the second petitioner vide Ext.P7 calling for WPC.32229/2008. assessment particulars. First petitioner made Ext.P8 representationrequesting to release the gold ornaments, cash and the demand draft takenfrom the second petitioner. It is pointed out that petitioners are regularassessees under the Income Tax Act. Ext.P9 is produced as copy of theacknowledgment for the return for the period ended 31.10.2007. It is thecase of the petitioners that petitioner has produced all the evidences to showthat the seized assets belong to them and it had been properly accounted. Inparticular reference is made to the demand draft in the name of the firstpetitioner for Rs.2,36,241/- payable at Mumbai received from Ms. TalalGold Palace, Thalasserry and it is confirmed by the buyer vide Ext.P4. Soalso reliance is placed on Exts.P1, P2 and P5. 2. I heard learned counsel for the petitioners Sri. PremjitNagendran and Sri.Jose Joseph, counsel appearing for the Department. 3. Learned counsel for the petitioners would submit that thegold may be released to the first petitioner. This is opposed by the learnedcounsel for the respondent. There is an order passed under Section 451 ofthe Cr.P.C., where the gold was given over to the Department. I do not seeany justification in the prayer of the petitioners to give back the goldornaments to the first petitioner. Proceedings are not yet completed andalso the person, to whom the gold is given by the Magistrate and who is WPC.32229/2008. 2. I heard learned counsel for the petitioners Sri. PremjitNagendran and Sri.Jose Joseph, counsel appearing for the Department. 3. Learned counsel for the petitioners would submit that thegold may be released to the first petitioner. This is opposed by the learnedcounsel for the respondent. There is an order passed under Section 451 ofthe Cr.P.C., where the gold was given over to the Department. I do not seeany justification in the prayer of the petitioners to give back the goldornaments to the first petitioner. Proceedings are not yet completed andalso the person, to whom the gold is given by the Magistrate and who is WPC.32229/2008. responsible to produce the same before the Magistrate is the Department.Learned counsel for the petitioners submits that the matter is pending for aperiod of two years and there may be a direction to complete theproceedings expeditiously. I see that the request of the petitioners isreasonable. Learned counsel for the respondent would submit that thejurisdictional officer is the Income Tax Officer, Ward 17(3)(4), 6[th] Floor,Piramel Chambers Parel, Mumbai 400 012. At any rate he submits thatproceedings will be completed within a period of six months from today. Irecord the said submission.The writ petition is disposed of directing that the proceedingswill be completed within a period of six months from today. If the secondpetitioner takes the stand that the first petitioner is the owner of the gold,necessarily notice must be issued to the first petitioner and he must also begiven an opportunity of hearing before passing orders. (K.M. JOSEPH, JUDGE)