S.N.JHA, J. - (1.) THIS special appeal is directed against the order of learned Single Judge dt. 19th April, 2005 in SB Civil Writ Petn. No. 186/2005 disposing of the writ petition with some observations. The appellant had filed writ petition seeking declaration that search of the premises and seizure of gold bullion was without any authority of law and null and void, and a direction upon the respondent authorities to handover the seized goods and cash of Rs. 6.5 lakhs to him forthwith.
(2.) THE learned Single Judge under the impugned order dt. 19th April, 2005, without entering into merit of the case, observing that the petition involved several disputed questions of fact and there is provision for release under Section 132B of the IT Act (for short 'the Act'), declined to direct release of gold but permitted the appellant to make application for release before the AO with a direction to the AO to examine the matter and if the appellant satisfies him about the source of acquisition of the gold, to release the same forthwith. The exercise was to be completed within a period of 15 days from receipt of copy of the order. The appellant was directed to co -operate with the respondent authorities. Pursuant to the said order, the appellant filed application under Section 132B of the Act for release of the gold before the Asstt. CIT, Central Circle -12, Mumbai. After hearing and on consideration of the facts and materials, the Asstt. CIT found that the appellant was not the actual owner of the bullion, he was acting as a carrier and name lender (entry giver) or a front man of somebody else and the gold which was the subject -matter was not his stock -in -trade, and accordingly rejected the application for release, vide order dt. 18th May, 2005. At this stage, on 24th May, 2005 the appellant filed this special appeal against the said order of the learned Single Judge dt. 19th April, 2005.
(3.) SHRI R.B. Mathur learned Counsel for the IT Department took a preliminary objection that having filed application for release of gold -thereby accepting the order of the learned Single Judge, it is not open to the appellant to challenge the order in this appeal. On the contrary, counsel pointed out, the appellant can challenge the order in revision under Section 264 of the Act. This Court found prima facie force in the preliminary objection and postponed the hearing for some time to enable learned Counsel for the appellant Shri A. Kasliwal to take instructions. At the resumed hearing Shri Kasliwal informed the Court that the appellant would like to press this appeal. The case was accordingly fixed for final hearing.;