K.S.RATHORE,J. - (1.) BY way of this writ petition the petitioner made the following prayers: (i) to declare the seizure of gold bullion on 9th Dec., 2004 (Annex. 2) to be null and void; (ii) to declare the search and seizure conducted in the premises of the petitioner on 9th Dec., 2004 (Annex. 3) as void and without there being any authority of law and without jurisdiction; (iii) to direct the respondent -authorities to hand over the goods which have been seized by them to the petitioner forthwith; (iv) to direct the respondent -authorities to handover the cash of Rs. 6.50 lakhs illegally seized by them to the petitioner forthwith (Annex. 3).
(2.) LEARNED Counsel for the respective parties argued at length. The main grievance of the petitioner is that the gold belonging to the petitioner was seized on 9th Dec., 2004. As per Section 132 although the authorities are empowered to search and seize but as per the proviso to Section 132 the bullion, jewellery or other valuable article or thing, being stock -in -trade of the business, found as a result of such search shall not be seized but the authorised officer shall make a note or inventory of such stock -in -trade of the business. Since the bullion and the gold seized by the authorised officer on 9th Dec., 2004 is stock -in -trade of the business, therefore, such bullion cannot be seized and proviso to Section 132 only gives power to make inventory. But here in the instant case 44 kg. gold has been seized by the IT Department. Learned Counsel appearing on behalf of the IT Department Mr. R.B. Mathur does not dispute so far as this proviso to Section 132 but he submits that the petitioner have to submit an application for such seizure (release) under Section 132B. He further submits that the person concerned have to make an application to the AO within thirty days from the end of the month in which the asset was seized, for release of asset and the nature and source of acquisition of any such asset is explained to the satisfaction of the AO, the amount of any existing liability referred to in this clause may be recovered out of such asset and the remaining portion, if any, of the asset may be released, with the prior approval of the Chief CIT or CIT, Co the person from whose custody the assets were seized. Since no application whatsoever has been moved under Section 132B to show and to satisfy the authorities regarding nature and source of acquisition of asset.
(3.) ON the contrary learned Counsel for the petitioner submits that immediately after seizure the petitioner has sent the entire record to the office at Bombay and at Jaipur. Both the offices have returned the same without considering and without explaining any reason as to why the authorised officer is not satisfied with the record and it is only mentioned that since record is not accompanied with the explanation and also not explained in person, therefore, the original record is sent back to the petitioner.;