N.V. Vasudevan, J.M. -
(1.) THIS is an appeal by the assessee against the order dt. 25th March, 2004 of Asstt. CIT-I, Agra (hereinafter called as AO) Under Section 158BC r/w Section 158BD of the Act relating to the block period 1st April, 1986 to 16th July, 1996.
(2.) We shall first take up for consideration ground Nos. 2, 5 and 6 -regarding the validity of the order passed by the AO Under Section 158BD of the Act.
The facts relevant for adjudication of the aforesaid grounds of appeal are as follows. The assessee along with Shri Nirankar Nath Mittal was travelling in a car No. UP-14-C-0040 on 8th Oct., 1995 and while driving on Agra-Tundla road the car driver Shri Mata Prasad stopped it near Central Public School and then two unknown persons forced the assessee and Shri Mittal to hand over whatever money they were carrying in the said car. As per F.I.R. 415/95 Under Section 394 of IPC dt. 8th Oct., 1995 recorded at Thana Itmad-ud-daula in book No. 30534, it was claimed by Shri N.N. Mittal that a sum of Rs. 2,00,000 was looted from them. On 31st Oct., 1995 both assessee and Shri N.N. Mittal addressed communications to S.O. Itmad-daula, wherein, it was pointed out that on 8th Oct., 1995 actually the amount looted was about Rs. 1 crore, out of which Rs. 30,00,000 were claimed to be owned by Shri N.N. Mittal and Rs. 70,00,000 were claimed by the assessee to be his property. On the basis of the F.I.R. lodged by Shri Mittal and information supplied to S.H.O., Itmad-daula, police authorities took action and recovered the amount aggregating to Rs. 72,60,000 from the alleged looters including Ashok Tyagi, Devendra Tyagi and Mukesh Tyagi. However, in the meantime the IT Department took search and seizure operation at the premises of the assessee on 26th Oct., 1995 and thereafter on the following day i.e. 27th Oct., 1995 warrant of authorization Under Section 132A was also issued in favour of the police authorities to hand over the recovered amount which was claimed to be looted to the IT Department. Meanwhile the Department also moved a petition in the Court of IIIrd Addl. District and Session Judge, Agra requesting to direct the police authorities to hand over the recovered amount to IT Department. Vide order dt. 8th July, 1996 the Hon'ble Addl. District and Session Judge, Agra in Criminal Miscellaneous Application No. 54/1995 Under Section 394/411 IPC directed to hand over the amount of Rs. 72,00,000 to the IT Department subject to an undertaking that the responsibility of safety and security of the amount and that the said amount shall not be disposed of without permission of the Court or that of any other Court superior than the said Court as the case may be and if directed by the said Court or any other competent Court, the amount shall be produced as and when so required. Subsequently, a further clarification was also issued by the Hon'ble Court on 7th Jan., 1997 that the order dt. 8th July, 1996 is clear yet for the convenience of the IT Department it was clarified that it has already been incorporated in the order dt. 8th July, 1996 that the amount of Rs. 72,00,000 handed over to the IT Department is an undisclosed income. In such situation, the IT Department is competent under the provision of tax Act to realise, collect and adjust as the case may be, the requisite income-tax from the said amount and also at liberty to take up entire proceedings contemplated under the IT Act subject to the condition already imposed in the order dt. 8th July, 1996 under which the IT Department shall be duty-bound to produce in the Court the amount or any part or balance thereof as and when so ordered by the said Court or any superior Court keeping the condition contemplated in the order dt. 8th July, 1996.
(3.) FROM the perusal of the judgment of IIIrd Addl. District and Session midge, Agra in Criminal Miscellaneous Application No. 64/1995 dt. 8th July, 1996, it is further observed, that the alleged looters of the cash on 8th Oct., 1995 had also claimed that the amount seized by the police on various dates belonged to them. The contention of Ashok Tyagi, Devendra Tyagi and Mukesh Tyagi regarding the sum owned by them which were seized by the police is as under: