P.K. Balasubramanyan, J. - (1.)THE petitioner is a non-resident Indian working in Saudi Arabia. According to him, he purchased 11 gold biscuits weighing 1,100 grams in Saudi Arabia and brought the same to India after paying customs duties and fulfilling other legal formalities. According to the petitioner, for security reasons, he entrusted the gold to respondent No. 3 for being kept safe. It appears that the authorities under the Income-tax Act conducted a raid on the premises of the third respondent and seized these 11 gold biscuits on suspicion that the third respondent had evaded liability under the Income-tax Act. THE petitioner thereupon made a claim before the Commissioner of Income-tax for the release of the gold biscuits to him by exhibit P-7 application. By exhibit P-8, the petitioner was informed that the gold biscuits could not be released to him at that stage. Subsequently, by an order, exhibit P-9, the Assistant Commissioner of Income-tax, the first respondent, rejected the claim of the petitioner for release of the gold to him. THEreafter the petitioner filed an application under Section 132(11) of the Income-tax Act seeking a decision that the gold belonged to the petitioner and to order its release. This application was disposed of by the 4th respondent, the Commissioner of Income-tax by exhibit P-12. In the said order, the Commissioner of Income-tax has stated that it is not possible to release the gold to the petitioner at this stage. THE fourth respondent further observed that if, on further enquiry at the time of assessment, it is found that the gold belonged to the petitioner, the same will be released to him. He also directed that the assessment against the third respondent should be completed expeditiously.
(2.)IN the original petition, the petitioner has challenged the orders, exhibits P-8, P-9 and P-12, and has sought a writ of mandamus directing respondents Nos. 1, 2 and 4 to deliver 1,100 grams, of gold seized from the premises of the third respondent to the petitioner. The prayer in this civil miscellaneous petition is for an interim direction seeking the relief of the release of 1,100 grams of gold to the petitioner pending the disposal of the original petition.
Thus the relief sought by way of this interlocutory application is practically the same as that prayed for in the original petition. Normally, such a relief cannot be granted at the interlocutory stage without disposing of the original petition itself. But notwithstanding this position, learned senior counsel for the petitioner, Sri. Abdul Aziz, contended that at best what the authorities have to look for is security for payment of whatever tax as may be assessed against the third respondent and that the petitioner is willing to furnish immovable property as security to the satisfaction of the authorities for getting the release of the gold to him. He also submits that the third respondent from whose premises the gold was recovered has no objection to the gold being returned to the petitioner. In fact counsel for the third respondent has no objection to the gold being released to the petitioner. But learned standing counsel appearing on behalf of the Department submits that the gold should not be released to the petitioner until the authorities are satisfied that the gold belongs to the petitioner and not to the third respondent. It is pointed out that the gold has been recovered from the premises of the third respondent and the authorities suspected that this has been purchased by the third respondent with unaccounted income. It is, therefore, submitted that unless the ownership of the gold is determined after proper enquiry, the gold could not be released to the petitioner, who claims that it belongs to him.

Prima facie I find force in the submission made by learned counsel on behalf of the Income-tax Department. All that the Commissioner of Income-tax has also observed in exhibit P-12 is that once the assessment is completed and the ownership of the gold is determined, the claim of the petitioner can be considered. Considering the circumstances of this case, I do not think that this is a fit case where this court should direct the gold to be released to the petitioner by way of interlocutory relief in this original petition. The fact that the petitioner has brought some gold from Saudi Arabia after complying with all the relevant regulations does not ipso facto lead to the conclusion that the gold biscuits seized from the third respondent are the same as those brought into this country validly and properly by the petitioner. Under these circumstances, I am not satisfied that the petitioner can be given relief in this interlocutory application. I therefore, dismiss the civil miscellaneous petition.

JUDGMENT

K.S. Paripoornan, J.

1. The petitioner in O. P. No. 8195 of 1993 is the petitioner in C.M. P. No. 14511 of 1993. This writ appeal is filed against the order passed in C. M. P. No. 14511 of 1993 by a learned single judge of this court. The appellant is a non-resident Indian working in Saudi Arabia. According to him, he purchased 11 gold biscuits weighing 1,100 gms. from Saudi Arabia and brought the same to India after paying duties leviable thereon and fulfilling other formalities. He further states that he entrusted the gold to the third respondent in the original petition for being kept safe. A raid was conducted by the Income-tax Department in the premises of the third respondent. The 11 gold biscuits were seized on suspicion that the third respondent has evaded liability under the Income-tax Act. The petitioner filed a claim petition before the Commissioner of Income-tax and asked for the release of the gold biscuits. By exhibit P-8, the petitioner was informed that the gold biscuits could not be released to him at that stage. By exhibit P-9, the Assistant Commissioner of Income-tax rejected the claim of the petitioner to release the gold to him. The petitioner filed an application under Section 132(11) of the Income-tax Act seeking a decision that the gold belonged to him and to order its release. The Commissioner of Income-tax, by exhibit P-12, declined the request. It was stated that it is not possible to release the gold to the petitioner at that stage. The Commissioner also directed that the assessment against the third respondent should be expedited. In the original petition, the petitioner has assailed the order declining to release the gold to him, evidenced by exhibits P-8, P-9 and P-12. A writ of mandamus is sought against the respondents to deliver the gold seized from the third respondent to the petitioner. Pending the original petition, the petitioner prayed that the respondents-officials may be directed to release the gold (1,100 gms.) mentioned in exhibits P-8, P-9 and P-12 to the petitioner on his executing bonds or on such terms and conditions as this court deems fit to impose. The third respondent had no objection to the gold being returned to the petitioner.

2. The learned single judge held that this is not a fit case where this court should direct the gold to be released to the petitioner by way of interlocutory relief. It is too early to say whether the gold biscuits seized from the third respondent are the same as those said to have been brought into this country validly and properly by the petitioner. The interlocutory application was dismissed by order dated August 19, 1993. This writ appeal is filed from the aforesaid interim order.

3. We heard counsel for the appellant, Shri M.M. Abdul Azeez, senior advocate, and also counsel for the respondent-Revenue, Shri P.K.R. Menon, senior advocate.

4. Admittedly, the gold was seized in the premises of the third respondent. The normal presumption is that the gold belongs to him. There are statutory provisions in the Income-tax Act also reinforcing the said presumption. The Revenue suspects that this was purchased by the third respondent with unaccounted income. The petitioner claims that the gold was given by him to the third respondent for safe custody. This is a matter on which the parties are at issue. The ownership of the gold is to be determined after proper enquiry. In this state of affairs, it is only proper that the very matter that is pending for consideration in the original petition is not pre-judged and no party to the litigation should be permitted to steal a march over the other. As to who exactly is the owner of the gold is a matter yet to be determined. Till then, it is imprudent and improper to return the gold to any one of the parties. The very gold seized may be required for evidence in future litigation. It is after considering all these aspects that the learned single judge held that, at this stage, it is not safe to assume or act on the basis that the gold biscuits seized from the third respondent are the same as those brought into this country validly and properly by the petitioner. That is a matter for proof and adjudication. The learned single judge was justified in declining to grant the interim relief as prayed for. We are not satisfied that the interim order passed by the learned single judge is in any way perverse or unreasonable or grossly improper.

(3.)THE writ appeal is without merit. It is dismissed.
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