RAJENDRA KUMAR JAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) IT is alleged that the petitioner is a sole proprietor of M/s. R.S. Jewellers and is engaged in the business of importing rough emerald from abroad and after finishing them, pass on to M/s Chordia Gems in which he himself is also a partner along with other brothers and father. He is already an income tax assessee.

(2.) IT is stated that vide invoice 3626 dated 28.1.1986 he had imported emerald worth Rs. 3.50 lacs from Real Gems Incorporation, New York as per the documents attached with the writ petition vide Ex. 1(A) to 1(M). IT is further submitted that he had taken a loan of Rs. 4,77,000/- on 6.6.1986 from M/s Chordia Gems as per the books of accounts maintained by M/s R.S. Jewellers which amount was withdrawn in cash by the petitioner's 'MUNIM' Shri Jagan Nath Bhalla from the bank accounts on the dates mentioned in the petition and as per the certificates of the bank attached as Annexures 4, 5, 6 and 7. IT is stated that the relevant entries had also been made in the cash books of different amounts withdrawn on this account. This amount is said to have been handed over along with import documents to one Shri Kanti Kumar Dugar, respondent No.6, a broker and resident of Kothari Bhawan, Jaipur for making remittance to Real Gems Incorporation, New York vide invoice dated 28.1.1986 and import bill dated 4.2.1986 along with the documents. IT is alleged that proper papers were prepared. Relevant entry is also said to have been made in the record. Reliance is also made on Annexure-9 a letter of Reserve Bank of India. However, according to the petitioner the amount could not be deposited because of certain deficiency in the documents and the bank had not accepted the amount and, therefore, respondent No.6 had sent back the said amount to Jaipur through his relative Shri Chain Roop Sethia who was intercepted by the police and brought to Police Station Jaipur wherein for the custody of Rs. 5,12,800/- from his briefcase carried by him which amount was seized by the police officers u/s 132-A of the Income Tax Act through Panchnama and the Panch-nama dated 19.6.1986 was prepared. The statement of Shri K.K. Dugar is said to have been recorded on the same day. IT is stated that the money was seized from the employee of Shri K.K Dugar and Mr. K.K. Dugar had established this fact in his statement in regard to the amount of Rs. 4,77,000/- and on the statement made by Shri Dugar, the matter was verified by the officers of the Income Tax Department from the petitioner as well. The above-said position is said to have been stated by the petitioner to the authorities to the Income Tax Department. In pursuance of the seizure, the Income tax authorities also conducted raids on the business premises of M/s Duggar Exim Linkers, a partnership concern of respondent No.6, books of accounts and documents were seized including the documents in regard to the transaction in hand. IT is stated that the statement of the petitioner was also recorded and the petitioner had informed and confirmed the position as staled above. IT is the case of the petitioner that out of the sum so seized, it included the amount of Rs. 4,77,000/- of the petitioner for the purpose as mentioned above which was being held by Shri K.K. Dugar on behalf of the petitioner firm. Explanation of respondent No.6 was also asked as required u/s 127 of the Income Tax Act by the respondent No.-4.

(3.) NO one appears today on behalf of the Income Tax Department, but a request has been made through proxy for informing the court that even Shri Ashok Gaur is no more the standing counsel for the respondent Income Tax Department. For the reasons that the file has been taken away by the department from him which amounts to as goods as pleading no instructions. It is unfortunate that the department instead of persuing the matter in the court for the reasons best known to it, is engaging and withdrawing the engagement of counsel repeatedly without informing the court or even without seeking permission of the court and I may not be wrong to say that the department has completely failed to look into its interest in prosecuting the case. Left with no alternative when no one is appearing in the case and case is already part heard matter; the records have not been produced and the counsel engaged by the depart-ment has no instructions. I have no option but to decide the case which is pending right from 1987 on the material available in the writ petition with the assistance of the counsel for the petitioner.