A.S.Bains, J. - (1.) THIS judgment will dispose of C.W.P. Nos. 439 and 438 of 1975 as common questions of fact and law are involved.
(2.) THE facts in C.W.P. No. 439 of 1975 are as under:-- THE Commissioner of Income-tax, Bombay City (Respondent No. 3), exercising his powers under Section 132 of the I.T. Act, 1961 (hereinafter referred to as "the Act"), issued a letter of authorisation in the name of Assistant Director, Intelligence, Bombay, to raid the premises of Smt. Santosh Kumari, petitioner, and in consequence thereof the Assistant Director, Intelligence, visited the residence of the petitioner on 6th September, 1974, and took into possession silver utensils valued at Rs. 16,000 along with six books of account of the firm in which the petitioner was the sole proprietor. He also took into possession 46 books relating to the affairs of her husband, Roshah Lal Aggarwal. On 10th September, 1974, the two lockers maintained by the petitioner jointly with her daughter-in-law were opened. Locker No. 399 was found to be empty but from Locker No. 313 certain gold jewellery of the value of about Rs. 80,000 was seized and taken into possession. On or about 14th September, 1974, another Locker No. 329, which was being operated upon by her son, Anil Kumar Aggarwal (petitioner in C.W.P. No. 438 of 1982), was opened and gold and jewellery of the value of Rs. 3,80,000 was seized and taken into possession, THE Commissioner of Income-tax, Amritsar (respondent No. 1), was informed about the said seizure. In compliance with Rule 112A of the I.T. Rules, 1962 (hereinafter referred to as "the Rules"), the ITO, Batala (respondent No. 2), sent a notice dated 18th September, 1979, to the petitioner to explain or to produce or cause to be produced evidence for explaining the nature of possession and the source of acquisition of the assets seized. Copy of this notice is annex. P-1 to the petition. THEreafter, between 18th September, and 10th October, 1974, the ITO (respondent No. 2) proceeded to Bombay and recorded the statements of various persons and took possession of the articles which had been seized by the Commissioner of Income-tax, Bombay (respondent No. 3). This was done on 10th October, 1974. On 22nd October, 1974, another notice under Rule 112A of the Rules was issued by the ITO, Batala (respondent No. 2), requiring the petitioner to render explanation of the nature of possession and the source of acquisition of the assets. Respondent No. 2, the ITO, with the prior approval of the Commissioner (respondent No. 1), passed an order under Section 132(5) of the Act on 8th January, 1975 (annex. P-4), whereby out of the total seized assets, the jewellery worth Rs. 2,28,140 was retained. It is this order (annex. P-4) which is challenged by way of this writ petition under Articles 226 and 227 of the Constitution of India. In the case of Anil Kumar Aggarwal, petitioner, the order under Section 132(5) of the Act (annex. P-5) is challenged, whereby cash amounting to Rs. 1,75,000 was retained. The only point canvassed by Mr. Bhagirath Dass, learned counsel for the petitioners is that the impugned orders were issued beyond 90 days of the date of seizure and were time-barred. Thus, the only question left for determination, is, whether the orders (annex. P-4 and P-5) dated 8th January, 1975, were issued beyond the period of ninety days and hence void. Admittedly, the orders under Section 132(5) of the Act could be passed within ninety days from the date of seizure. According to Mr. Bhagirath Dass, limitation period is to be counted from 9th and 10th of September, 1974, in case of Smt. Santosh Kumari, petitioner, and from 13th/14th September, 1974, in case of Anil Kumar, petitioner, as it was on these dates that the seizure took place at Bombay, But' according to the respondents, period of limitation is to be counted from the date when the ITO, Batala (respondent No.. 2), who has the jurisdiction to go into the matter, took possession of the seized articles, i.e., on 14th October, 1974, and if the time is to be counted from this date then the orders under Section 132(5) of the Act passed on 8th January, 1975, are within the period of ninety days. Mr. Bhagirath Dass relied upon CIT v. Ramesh Chander [1974] 93 ITR 450 (P & H) and Tej Pal Oswal v. ITO [1979] 118 JTR 21 (P & H). In Tej Pal Oswal's case, the assessee entrusted for safe custody to G, the Bursar of Lawrence School, Sanawar, in which school the assessee's son was studying, a suit case, a tin box and two hand bags containing cash, ornaments, jewellery and some watches. Some time later, the Bursar informed the headmaster of the school about it and the headmaster got into touch with the Superintendent of Police, Solan, and, consequently, the Station House Officer, Solan, seized the above articles from the Bursar. The Superintendent of Police got in touch with the Customs and Central Excise departments and also with the Commissioner of Income-tax. The Customs Department seized from the Station House Officer some of the articles and the I.T. Dept. seized the other articles. The assessee filed a writ petition in the High Court to get back the articles in the possession of the I.T. authorities. The dispute in that case was, whether the seizure by the police will be considered as the seizure by the I.T. authorities. The contention of the I.T. Dept. was that the seizure of articles by the Solan Police was on behalf the I.T. Dept. and was not on behalf of the petitioner under the Cr. PC. It was held that when the Station House Officer gets information about some articles which are suspected to be stolen or regarding which some offence is suspected to have been committed, he is entitled to seize the said articles under the provisions of Section 102, Cr. PC, and the articles so seized will have to be disposed of in accordance with the orders of a court of competent jurisdiction under Section 457 of the Code. This view was taken on the basis of an earlier decision in Ramesh Wander's case [1974] 93 ITR 450 (P&H). In that case, this court examined the question of seizure from the police possession in detail and came to the conclusion that if the seizure by the police is under the provisions of the Cr. PC, the seized property has to be disposed of in accordance with the provisions of the said statute and the I.T. authorities will have no jurisdiction to take away the goods from police custody by issuing a seizure warrant. On that ground, the seizure warrant issued by the ITO was quashed and the respondents were directed to hand over the articles to the Station House Officer, Solan, who was directed to produce the said property before the court of competent jurisdiction which, in turn, was directed to pass proper orders for the disposal of the said property. In my view, these authorities are of no help to the petitioners as the seizure was under a different Act. But, in the present case, the seizure is under the same Act. In the aforesaid authorities, the seizure was by the the police under the Cr. PC but in the present case the seizure is under the I.T. Act first by the Commissioner of Income-tax, Bombay, and later on by the ITO, Batala (respondent No. 2), having jurisdiction over the matter. Reference may be made to the Supreme Court authority Durga Prasad v. H.R. Gomes, Superintendent Prevention , Central Excise, Nagpur, AIR 1966 SC 1209, wherein it was observed as follows (p. 1210): "It cannot be said that the power of seizure must necessarily involve, in every case, the act of physical possession of the person who had a right to seize the articles. It was true that the documents had been sent to Delhi by the Superintendent of Customs and Central Excise for a limited purpose and for a limited period. But he was still in legal possession of the documents, for he had the right to control the use of the documents and to exclude persons who should or should not have access to the documents. The Collector, by his order of seizure, could transfer the legal possession of the documents to himself. The fact that the documents were retained at Delhi for a specific purpose would not affect the legality of the order of seizure." Thus, I am of the view that the date of seizure would be when the ITO, Batala (respondent No. 2) having jurisdiction took possession of the articles on 14th October, 1974, and not on 9th September, 1974, or 13th/14th September, 1974. No other point is urged.
(3.) FOR the reasons recorded I am of the view that the impugned orders were passed within a period of 90 days of the date of seizure and hence valid. In the result the writ petition fails and is dismissed with costs. Counsel fee Rs, 500.;