KANWAL SHAMSHER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) On February 2, 1973 an officer of the Income-Tax Department duly authorised by the Commissioner of Income-Tax, Delhi (Central) under section 132(1) of the IncomeTax Act, 1961 (hereinafter called "the Act)" carried out search of the residence of the petitioner. He sealed a steel almirah in the premises. A list of articles found in the almirah was prepared and they were put in two packets and sealed. During the search he also found keys of two lockers of the Delhi Safe Deposite Company. One of these lockers No. 2046 stood in the name of the petitioner and the other, bearing No. 1799, was in the joint names of the petitioner and her daughter Mrs. Mala Singh. Both these lockers were scaled. On February 7, 1973 the lockers were opened in the presence of the petitioner and inventories of their contents were prepared and orders under sub-section (3) of section 132 were issued to the Bank restraining it from parting with or allowing the contents to be removed. Sub-section (5) of section 132 of the Act provides that the IncomeTax officer, after affording a reasonable opportunity to the person concerned of being heard and making such enquiry' as may be prescribed, shall within ninety days of the seizure, make an order, with the previous approval of the Commissioner, estimating the undisclosed income and calculating the amount of tax in terms of the sub-section on this income and specifying the amount that would be required to satisfy any existing liability under the Act. The sub-section further provides that the Income-Tax Officer shall retain in his custody the seized assets or part thereof as are in his opinion sufficient to satisfy the dues so calculated "and forthwith release the remaining portion if any, of the assets to the person from whose custody they were seized". The petitioner contends that contents of the two lockers were seized by the authorised officer but after seizure of these assets the Income-Tax Officer failed to make an order within the prescribed period of ninety days and she, is therefore, entieled to a writ of mandamus or any other appropriate writ, direction or order directing the concerned authorities to release the said assets, and to a declaration that the seizure of the assets from the lockers was illegal. She has also prayed for such other order or direction as may be considered necessary. Respondents to the petition are Union of India, Commissioner of Income-Tax, Assistant Director of Inspection and the Income-tax Officer as respondents 1, 2, 3 and 4 respectively.

(2.) In the counter-affidavit filed by Shri S. R. Gupta. Income-Tax Officer, it is stated that consequent upon an information received by the Commissioner of Income-Tax that there was reason to believe that the petitioner was possessed of money, bullion, jewellery etc. which had not been disclosed for the purpose of income-tax, an authorisation under section 132 was issued to carry out search and seizure' at the residential premises of the petitioner. On search being taken, jewellery found in the steel almirah was seized and keys of the two lockers were taken into possession and the lockers were sealed. The sealed lockers were thereafter opened on February 7, 1973 and inventories of their contents were prepared. In respect of one of these two lockers, No. 2046 'the petitioner' on being examined under subsection (4) of section 132, stated that the jewellery and money in this locker belonged to her daughter, Mrs. Mala Singh, except one pair of ear tops which was stated to belong to one Mrs. Mohini Puri In respect of the second locker No. 1799 the petitioner stated that some items in it belonged to her daughter Mrs. Mala Singh and that some other items belonged to the H.U.F. of which she and her brother Shri A. S. Dua were members. These statements of the petitioner, the affidavit says, could not be immediately verified and, therefore, the contents of the two lockers could not be seized and in these circumstances the authorised officer sealed the two lockers and passed orders under section 132(3) for ensuring sate custody of their contents pending enquiry. The contents of the lockers having not been seized, it is maintained, the limitaiton of ninety days prescribed under sub-section (5) of section 132 did not come into plav and the question of releasing the said contents does not arise.

(3.) It may be clarified at this stage that as far as the assets seized from the almirah from the residence of the petitioner are concerned, there is no dispute between the parties to the petition because it is admitted that on February 23, 1973 a notice under section 132 of the Act read with rule 112A of the Income-Tax Rules, 1962 was issued to the petitioner and it is stated at the bar that an assessment has also been made which is the subject-matter of a pending appeal.