SCA/7981/2017 JUDGMENT IN HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 7981 of 2017 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE B.N. KARIA 1 Whether Reporters of Local Papers may be allowed to see judgment ? 2 To be referred to Reporter or not ? 3 Whether their Lordships wish to see fair copy of judgment ? 4 Whether this case involves substantial question of law as to interpretation of Constitution of India or any order made thereunder ? HASMUKH PARSHOTTAMDAS SONI. Petitioner(s) Versus DY. DEPUTY COMMISSIONER OF INCOME TAX....Respondent(s) Appearance: MR JP SHAH, SENIOR ADVOCATE with MR MANISH J SHAH, ADVOCATE for Petitioner(s) No. 1 MR MANISH BHATT, SENIOR ADVOCATE with MRS MAUNA M BHATT, CAVEATOR for Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE B.N. KARIA Date : 19/04/2017 Page 1 of 4 HC-NIC Page 1 of 4 Created On Sun Apr 23 10:15:38 IST 2017 C/SCA/7981/2017 JUDGMENT ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of Constitution of India petitioner has prayed for appropriate writ, order or direction directing respondent to return cash of Rs.89,60,000/- to petitioner against bank guarantee so that respondent can recover tax, in case in assessment it is held that petitioner is not in position to explain source of said amount. [2.0] Heard Shri J.P. Shah, learned Senior Advocate appearing on behalf of petitioner and Shri Manish Bhatt, learned Senior Advocate appearing on behalf of respondent revenue. It is not in dispute that cash of Rs.89,60,000/- has been seized under Section 132 of Income Tax Act. [3.0] It is case on behalf of petitioner that petitioner tried to explain at time of seizure of cash to respondent that cash is from stock-in-trade, and therefore, it is not unaccounted money /cash, and therefore, he has tried to explain source of income. However, despite above, respondent has seized aforesaid cash of Rs.89,60,000/-, and therefore, petitioner has preferred present petition for aforesaid relief. [4.0] Having heard learned Counsels appearing on behalf of respective parties and considering scheme provided under Sections 132 and 132B of Income Tax Act, we are of opinion that after asset is seized, Section 132B of Income Tax Act provides application of seized or Page 2 of 4 HC-NIC Page 2 of 4 Created On Sun Apr 23 10:15:38 IST 2017 C/SCA/7981/2017 JUDGMENT requisitioned assets. Considering proviso to Section 132B of Income Tax Act, concerned person is required to make application to Assessing Officer within thirty days from end of month in which asset was seized for release of asset and if nature and source of acquisition of any such asset is explained to satisfaction of Assessing Officer, thereafter after deducting any existing liability referred to under sub Section 1(i) of Section 132B of Income Tax Act, Assessing Officer with prior approval of authority mentioned in said proviso may release asset (in present case, cash seized). Under circumstances, after asset is seized same is to be dealt with under Section 132B of Income Tax Act. [5.0] Under circumstances, we are of opinion that let petitioner make appropriate application before concerned Assessing Officer to release asset /cash and explain source of acquisition of such asset /cash and thereafter Assessing Officer may pass appropriate order in light of proviso to sub Section 132B (1)(i) of Income Tax Act. It will be open for petitioner to explain Assessing Officer source of acquisition of such cash and same may be considered by Assessing Officer independently, as any observation made by respondent be treated and considered as tentative / prima facie qua seizure of cash in question. [6.0] In view of above, present petition is disposed of at this stage, relegating petitioner to submit application before Assessing Officer within period of one week from today as provided under Section 132B(1)(i) of Page 3 of 4 HC-NIC Page 3 of 4 Created On Sun Apr 23 10:15:38 IST 2017 C/SCA/7981/2017 JUDGMENT Income Tax Act. As and when such application is made Assessing Officer to pass appropriate order in accordance with law and on its own merits as provided under Section 132B (1)(i) of Income Tax Act within period of 10 days thereafter. If, still thereafter petitioner is aggrieved by same it will be open for petitioner to challenge same before this Court which be considered in accordance with law and on its own merits. (M.R. SHAH, J.) (B.N. KARIA, J.) Siji Page 4 of 4 HC-NIC Page 4 of 4 Created On Sun Apr 23 10:15:38 IST 2017 Hasmukh Parshottamdas Soni v. Dy. Deputy Commissioner of Income-tax