INCOME TAX OFFICER Vs. STATE

JUDGEMENT

(1.) V. N. Mehrotra, J. This revision has been filed against the order dated 12th August, 1988 by Sri R. P. Pandey, Special Chief Judicial Magistrate, Allahabad, allowing the application by opposite party No. 2 Ziauddin alias Chunnoo for releasing an amount of Rs. 2,74,065. 00 seized from him.

(2.) IT is in this case not disputed that an amount of Rs. 2,74,065. 00 was seized from the possession of opposite party No. 2 by the authorities under Foreign Exchange Regu lation, Act. The authorities concerned, however, did not press the charge under the Foreign Exchange Regulation Act. The opposite party No. 2 moved an application for release of the entire amount before the Special Chief Judicial Magistrate. The authorities concerned intimated the learned Magistrate that the Income Tax authorities have been informed about the seizure of this amount. An application on behalf of the Income Tax authority was also moved before the learned Magistrate. IT was alleged that under the provisions of Section 132-A of the Income Tax Act, a warrant of authorisation has been issued in favour of the requisitioning officer, Hence the asset should be delivered to him. The learned Magistrate, however, rejected the application by the Income Tax authorities mainly on the ground that under the provisions of Section 132 sub section (8) of the Income Tax Act, the asset could not be retained for more than ninety days and, as in the pre sent case, that period had already expired, the asset is to be handed over to the persor, from whom it was seized.

(3.) A similar question arose for determination in the case Union of India v. Judicial Magistrate (Eastern Railway) Mughal Sarai and another (1) In that "case also certain assets were seized and the person concerned was challenged under Section 41/102 Cr. P. C. read with Section 411 I. P. C. The Commissioner having reason to believe that the assets represented undisclosed income, issued warrants of au thorisation under Section 132-A of the Income Tax Act. The asset was, however, not delivered to the requisitioning authority. The Magis trate concerned direction the delivery of asset to the person from whose possession it was seized. It was held that under Section 132-A of the Income Tax Act, 1961, the re quisitioning officer would be the person entitled to the seized assets and that it was not the function of the Magistrate embark upon an enquiry into the nature of assets and the ownership of the same in a summary way, that enquiry has to be conducted by the Income Tax Officer u/s132 (5) of the Income Tax Act.