K T THOMAS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE first petitioner is the father of the second petitioner and employer of the third petitioner. A search was conducted in the petitioners' premises and an amount of Rs. 21 lakhs in cash and Rs. 31,78,220 by fixed deposit receipts and drafts were seized from their house. According to the petitioners, the cash amount was drawn from the Catholic Syrian Bank by his son at the instance of the authorities themselves. After the seizure, proceedings for assessment for previous years were also started. THEreafter, exhibit P-19 order was passed under Section 132 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). An appeal was filed against exhibit P-19 order (exhibit P-20). Exhibit P-20 appeal was disposed of by exhibit P-22 order under Section 132(12) of the Act. Meanwhile the petitioners approached this court .and as per the interim order an amount of Rs. 48,92,980 was deposited in the Capital Gains Accounts Scheme. THE present grievance of the petitioners is that in exhibit P-22 order all the contentions in exhibit P-20 appeal were not considered and seized money and documents should be returned with interest and to declare that the entire search and seizure are illegal.

(2.) ON going through exhibit P-22 order it is seen that the appellate authority had mainly considered the eligibility for relief under capital gain and held that as directed by the High Court it should be deposited in the bank in Capital Gains Deposit Scheme. Whether they are eligible for relief under capital gains will have to be considered by the assessing authority. With regard to the other contentions raised in exhibit P-20, there is no speaking order. All contentions raised by the petitioners were not considered. Therefore, I set aside exhibit P-22 to that extent and direct the appellate authority to reconsider the matter and pass fresh orders on exhibit P-20 appeal after rehearing the petitioners as expeditiously as possible. The assessment for the previous years also can be completed by the Department. However, the amount demanded in the orders of assessment should not be recovered from the petitioners till fresh orders are passed on exhibit P-20 in the place of exhibit P-22 order. The petitioners have to obtain any stay regarding further recoveries as per assessment order from the appellate authority as provided under the law. Since the question in dispute regarding validity of the search and seizure from the petitioners' house, etc., is a question depending on facts, it cannot be decided by this court as it has to be decided by the departmental authorities after evaluating the facts of the case. The statutory authority has to decide the matter according to law.