Mehrotra, J. - (1.) WHILE travelling from Mirzapur to Calcutta by the Kalka Mail, one Vinod Kumar Jaiswal was detained at Moghal Sarai by the Govt. Railway Police and an attache case containing a sum of Rs. 4,63,000 was seized from him on suspicion that the money was stolen property or had been obtained through some other offence. Vinod Kumar Jaiswal was charged under Section 411, IPC, read with Sections 41 and 102, Cr. PC, before the Railway Magistrate at Moghalsarai. This was on December 25, 1981. The Station Officer-in-charge of Govt. Railway Police, Moghal Sarai, sent an intimation to the I.T. authorities at Varanasi on December 26, 1981, about the seizure of money. On December 26 itself, Vinod Kumar was produced before a Magistrate at Mirzapur. The then IAC, Varanasi, intimated the CIT, Allahabad, on December 29, about the fact of possession of the aforesaid amount by Sri Vinod Kumar and also that he did not have any papers or documents regarding the ownership or possession of the amount. The Commissioner was informed by the IAC that no person by the name of Vinod Kumar Jaiswal was borne on the General Index Register of Income-tax assesses of the ITO at Mirzapur. The Commissioner issued a requisition under Section 132A(1), I.T. Act, 1961, (for brief, "the Act") to the Station Officer-in-charge, Govt. Railway Police, Moghal Sarai, requiring him to hand over the seized sum of money to the ITO (Sri S.N. Kapoor), who had been authorised by a warrant of authorisation to receive it.
(2.) THE IAC of Varanasi authorised search of the residential premises of Rajendra Kumar Pandey, a partner of M/s. Vindhya Metal Corporation, Imamganj, Mirzapur, which is the first petitioner in this writ petition in consequence of a survey under Section 133A of the Act, which was authorised by the ITO,' A' Ward, Mirzapur, for the search of the business premises of the Corporation on December 29, 1981. THE search warrant was issued on the view that Rajendra Kumar Pandey was concealing the real books of account, cash, bullion, jewellery and other valuables which he would not have produced in response to a summons under Section 131 and a notice under Section 142(1) of the I.T. Act. It is said by the petitioner that on December 29, 1981 itself, an I.T. Inspector had visited the premises of the petitioner and had found entered in the books of account that the aforesaid sum of Rs. 4,63,000 had been handed over to Vinod Kumar Jaiswal, who was the nephew of the third petitioner, Santosh Kumar Gupta (Jaiswal), for being carried to Calcutta in connection with the business of the petitioners and a sum of Rs. 17,353 was the cash balance. On December 30, 1981, this sum was carried away by the search party along with the books of account. The Railway Police submitted a final report on January 21, 1982, on its conclusion that the money found in possession of Vinod Kumar in the train did not represent stolen property or property acquired under any offence because the amount belonged to the petitioner firm. Earlier to it, on January 1, 1982, Rajendra Kumar Pandey made an application before the Judicial Magistrate (Railway), Varanasi, praying that the amount which belonged to the petitioners and was being carried by Vinod Kumar who was serving as a munim in the firm (Vindhya Metal Corporation), be released to the applicant or else in favour of Vinod Kumar. On January 4, 1982, the ITO, 'F' Ward, Varanasi, requisitioned the aforesaid amount from the Railway Magistrate in pursuance of the authorisation issued by the CIT under Section 132A. On January 13, 1982, an objection to the prayer made by Rajendra Kumar Pandey was filed by the ITO in the court of the Judicial Magistrate in which a direction for delivery of the amount to the Department by the Station Officer, Govt. Railway Police, Moghal Sarai, was sought. The Magistrate decided the matter by a detailed order of February 3, 1982, and, rejecting the objection of the Department, directed return of the amount to Rajendra Kumar Pandey. On February 4, the ITO served a prohibitory order upon the Station House Officer of the Govt. Railway Police, Moghal Sarai, under Section 28 IB, I.T. Act, after obtainining the approval of the CIT, Allahabad, from making over the amount to Rajendra Kumar Pandey or the Vindhya Metal Corporation. The order dated February 3 was assailed in Criminal Revision No. 177 of 1982, under Section 378, Cr. PC. This court allowed the revision on April 9, 1982, and permitted the I.T. Department to take possession of the sum of Rs. 4,63,000. Meanwhile, on January 13, 1982, the ITO, Mirzapur, called upon the Corporation to explain the nature of possession and the source of acquisition of the assets seized by the Department, namely, cash amounting to Rs. 17,353 on December 30, 1981, and the sum of Rs. 4,63,000 seized by the Govt. Railway Police, Moghal Sarai, on December 25, 1981. On the following day, namely, January 14, 1982, a notice was served upon Rajendra Kumar Pandey as well by the ITO, ' A' Ward, Mirzapur, to explain the nature of possession and the source of acquisition of Rs. 17,353 seized on December 30, 1981. On February 18, 1982, the present petition was filed. This was before the disposal of the criminal revision by this court. The petitioners are the Corporation arid its two partners, Rajendra Kumar Pandey and Santosh Kumar Gupta, while arrayed as respondents are the CIT, Allahabad, and the ITOs of Varanasi and Mirzapur, the first of them being the officer authorised by the CIT.
(3.) WHEN filed, the petition contained the prayers primarily for quashing the order of attachment of money of January 4, 1982, and the authorisation of search warrant as well as the notices dated January 13 and 14, 1982, together with the proceedings in pursuance thereof apart from a direction for return of the sum of Rs. 17,353 and the documents and books of account seized on December 30, 1981. Later, in January 1983, the petition was sought to be amended and on the basis of the facts brought on record through the affidavit filed in support of the amendment application, it was prayed that the order of the CIT dated December 4, 1982, under Section 125(1) of the I.T. Act, transferring the jurisdiction of the petitioner's case to the IAC (Assessment) Range 2, Varanasi, be quashed and the CIT be directed to dispose of the two applications of September 14, 1982, and November 26, 1982, made by the petitioners for dropping the proceedings under Sections 132 and 132A, I.T. Act, 'completing assessment proceedings for the years 1981-82 and 1982-83 expeditiously and objecting to the transfer of the petitioner's case proposed through the notice of the Commissioner dated November 20, 1982, to the IAC (Assessment) 'Range 2, Varanasi, after hearing the petitioners' prayer for a direction for refund of the amount in possession of the Department with interest was also made. The respondents have opposed the prayers made by the petitioners and have shown cause in the form of counter-affidavits sworn by Sarvsri Hira Singh and Bishambhar Nath, the then CIT, Allahabad, Smt. Shalini Sharma, IAC (Assessment) Range 2, Varanasi, and Sri S. N. Kapoor, ITO, ' F' Ward, Varanasi.;