SUNITA SINGAL Vs. ASSISTANT DIRECTOR OF INCOME TAX

JUDGEMENT

(1.) THIS is a writ petition whereby the petitioner challenges the order, dt. 14th March, 1988, made by the fourth respondent, the ITO, Special Circle II, Jalandhar, and the order dt. 28th Feb., 1989, passed by the second respondent, the CIT, Central Revenue Building, Jalandhar, and also seeks an order directing the respondents to release and hand over the jewellery alleged to be belonging to the petitioner which was seized on 14th March, 1988. The facts giving rise to the writ petition are as under

(2.) I have heard learned counsel for the parties. It is not disputed by the respondents that the petitioner was not given any opportunity of hearing before the passing of the impugned orders. At the foot of the panchnama, it is mentioned that jewellery was also seized from the person of the two ladies, Smt. Krishna Singal and Smt. Sunita Singal, but six churies and one mangalsutra were returned to them.

(3.) I have considered the submissions of learned counsel for the parties. The merits of the controversy, whether the ornaments belonged to the petitioner or to her father -in -law cannot be gone into in a writ petition under Art. 226 of the Constitution. It seems that the only question which can be gone into in this petition is whether the principles of natural justice have been violated in so far as the petitioner is concerned. Undoubtedly, there has been a violation of principles of natural justice qua the petitioner. The jewellery was seized from a house where the petitioner was staying. Some of the jewellery was seized from her person as is apparent from the panchnama (annexure "J"). The panchnama also mentions the name of the petitioner though it is not clear as to whether her name occurs because she was residing at 34/56, Punjabi Bagh (West), New Delhi, or whether the jewellery belonged to her. In these circumstances, the petitioner was an affected party and she should have been heard by the ITO and also by the CIT. Both these authorities passed the orders without hearing the petitioner, thus infringing her right to be heard and to have her say in the matter. The CIT even failed to dispose of her application under S. 132 (11) of the IT Act. It is well -settled that a party must be heard before passing an order adverse to his/her interests. In the instant case, the petitioner has not been heard and her application under s. 132(11) of the IT Act has not been disposed of. Therefore, I am of the view that the impugned orders cannot be sustained. In the circumstances, however, it will be sufficient if the impugned order dt. 28th Feb., 1989, passed by the second respondent, in so far as it relates to 405.03 grams of gold seized under the panchnama (annexure "J" to the writ petition) is quashed as it has been passed without disposing of the application of the petitioner under S. 132(11) of the IT Act, thereby rendering her application otiose. Accordingly, the order dt. 28th Feb., 1989, passed by the second respondent to the extent indicated above is hereby quashed. The second respondent is also directed to dispose of the application of the petitioner under S. 132(11) of the IT Act after providing her with an opportunity of hearing. It will be open to the second respondent to pass fresh orders on the application of Shri Prithipal Singal under S. 132(11) of the IT Act regarding 405.03 grams of gold in the light of the decision on the application of the petitioner under S. 132(11) of the IT Act, 1961. The application of the petitioner will be decided by the second respondent within six weeks. The rule is made absolute.