A. Banerji, J. - (1.) AN interesting question arises in this writ petition. The petitioner claims that certain silver bullions which were seized from a trader in bullions belonged to the petitioner and the same had not been released in his favour and that his representations had been rejected illegally. He has prayed in this petition for the issue of a writ of mandamus directing respondents Nos. 2, 3 and 4 to release and return the seized silver weighing 7.660 kg. and for the quashing of the order dated January 29, 1981, in respect of seizure of the silver of the petitioner.
(2.) FIRST the relevant facts : an income-tax raid was conducted against a bullion dealer, Chetmani Enterprises, Varanasi, on November 1, 1980, by the Income-tax Officer (B Ward), Varanasi. The seized articles included 7.660 kg. of silver in the form of ornaments, rods, etc. The petitioner's case was that he had given the silver to the bullion dealer the same day at about 11 in the morning for testing its purity with the intention to sell. The petitioner's case further was that he was asked by the bullion dealer to leave the silver at his place and come a little later so that the testing may be done and the price determined. When the petitioner went to the place of the bullion dealer after some time as required, he noticed that there was an income-tax raid and he could not get back the silver given by him to the bullion dealer, for it had also been seized. He made an application for the release of the silver to the Commissioner of Income-tax, Allahabad, on December 28, 1980, and to the Income-tax Officer (B Ward), Varanasi, on April 25, 1981. Subsequently, he made an application to the Income-tax Assistant Commissioner (Assessment), Varanasi, on July 3, 1982. His stand further was that the order passed under Section 132 of the Income-tax Act, 1961, dated January 29, 1981, by the Income-tax Officer (B Ward), Varanasi, was bad in law as the silver weighing 7.660 kg. belonged to him and not to the bullion dealer. On behalf of the Income-tax Department, a counter-affidavit was filed by the Income- tax Assistant Commissioner (Assessment). It was stated there that a raid was conducted and several items including silver weighing 7.660 kgs. were seized, but the ownership of the petitioner in regard to the said silver was neither admitted nor established. In the order passed under Section 132(5) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), the seized silver had been held to belong to Chetmani Enterprises. That order was passed after taking into consideration all facts and circumstances. It was also stated that after the passing of the order under Section 132(5) of the Act, it was not possible for the Income-tax Officer to pass any further order. Before the order under Section 132(5) of the Act was passed on January 29, 1981, the petitioner had given his statement on oath on December 15, 1980, and he had been heard. The petitioner had a right to make a representation under Section 132(11) of the Act and, in this view of the matter, the writ petition filed by him was not maintainable. A rejoinder affidavit was filed reasserting the contents of the writ petition and denying the assertions to the contrary made in the counter-affidavit. It was also urged that an application under Section 132(7) of the Act had been made on April 25, 1981, and the denial of the receipt of the same was incorrect, as a receipt had also been furnished to the petitioner. It was further urged that the order passed under Section 132(5) of the Act was bad in law, for it did not contemplate any finding on the issue of ownership of the article. It was reasserted that the seized silver belonged to the petitioner and the order passed under Section 132(5) of the Act did not relate to the petitioner and, as such, there was no question of his filing any representation under Section 132(11) of the Act.
(3.) WE have heard Shri R. G. Padia, learned counsel for the petitioner and Shri M. Katju, learned counsel for the Department Before we advert to the questions raised in this petition, it will be relevant to mention here that the impugned order was passed on January 29, 1981, and the present writ petition was filed in this court in October, 1982. There is no adequate explanation for this inordinate delay to approach this court. The writ petition is liable to be dismissed on this ground of laches alone. However, since we have heard the learned counsel for the petitioner on merits, we proceed to decide the case on merits. The first question for consideration is as to the scope of Section 132(5) and (7) of the Act. The relevant provisions of Section 132(5) and (7) read as follows : "(5) Where any money, bullion, jewellery or other valuable article or thing (hereafter in this section and in Sections 132A and 132B referred to as the assets) is seized under Sub-section (1) or Sub-section (1A), the Income tax Officer, after affording a reasonable opportunity to the person concerned of being heard and making such enquiry as may be prescribed, shall, within ninety days of the seizure, make an order, with the previous approval of the Inspecting Assistant Commissioner,--..... ;