1 Jitendra Agarwal vs. income Tax Department & Anr. S.B.Cri. Revision Petition No.909/08 Date of Order : 05.01.2009 HON'BLE MR. JUSTICE MANAK MOHTA Mr.Pradeep Shah for the petitioner. Mr.Vishnu Kachhawaha , Public Prosecutor. Mr.Varun Gupta for respondent No.1. This revision petition has been filed by the petitioner against the order dated 24.07.08 passed by the learned Addl. Sessions Judge. No.2 Jodhpur in criminal revision petition No. 52/08 by which he reversed the order of the learned Addl.Chief Judicial Magistrate (Railways), Jodhpur dated 11.04.08, passed in Criminal Misc Case No.98/07, by which he ordered that the seized amount of Rs.30,00,000/- under section 102 Cr.P.C., be handed over to the petitioner. Further the learned Sessions Judge ordered that the Seized amount of Rs.30,00,000/- be handed over to the respondent. The brief facts of the case are as under:- It is revealed from the record that a sum of 2 Rs.30,00,000/- was seized by the Government Railway Police on 27.10.07 from Jayesh Kumar Patel, stated to be an employee of the petitioner. It is alleged that no satisfactory explanation was given by the Jayesh kumar Patel. The Income Tax Department was also intimated. Thereafter, the matter came before the concerned Addl. Chief Judicial Magistrate, (Railways), Jodhpur for disposal of said amount. Whereas petition was moved on behalf of Jitendra Agarwal that money was to be handed over to him, during that process, money was seized. It was also submitted that the petitioner is a regular Income Tax payer and is having a Permanent Account No. He is doing the business in the name of Haryana Steel Traders and his Permanent Account No. is AAGP A8641R. On the other hand, the plea of the Income Tax Department was that the amount seized is the undeclared property of the petitioner, that is subject to tax and other penalty, therefore, the amount be handed over to the Department. The learned Addl. Judicial Magistrate ( Railways), Jodhpur, after hearing both the parties, vide order dated 11.04.08 over ruled the contention of the Department and 3 ordered to hand over the seized amount on supurdginama to the petitioner. Against that order, the concerned Department filed revision before the learned Sessions Judge, Jodhpur. Later on that was transferred to the court of Addl.Sessions Judge No.2.Jodhpur, who, vide impugned order set aside the order of the learned Addl.Chief Judicial Magistrate (Railways) and passed the order that the amount be handed over to the income Tax Department. Against that the petitioner has filed the present revision petition. Notice of this revision petition was given to the Department , record of the case was called and arguments were heard. During the course of arguments, learned counsel for the petitioner reiterated the contentions placed before the learned lower courts and submitted that it is wrong to allege that the amount seized was undeclared property. But this amount was to be handed over to the petitioner , he is having a Permanent Account No. and there is satisfactory explanation of the sum in dispute. The learned Magistrate has rightly passed the order of giving the same to the petitioner but the learned Sessions 4 Judge, without thoroughly considering and appreciating the facts of the case, passed an erroneous order in a hasty manner. Learned counsel for the petitioner further submitted that the petitioner is a regular Income Tax payer. Nothing is outstanding against him. The Income Tax Department has no right to make a prayer for handing over this amount to them. In support of his contention, he also placed reliance on the judgment given in CIT , Jodhpur vs. State of Rajasthan & Ors. [1998 Cri.L.R. (Raj.) 869]. Learned counsel for the petitioner further submitted that during the pendency of these proceedings, the petitioner has also filed a return showing his total income to be Rs.66,61,610/- and the Department has conveyed the maximum tax liability including interest etc. to the extent of Rs.25,65,000/-. Again on the given facts, a prayer was made that the Income Tax Department has shown its maximum liability recoverable but they have no right to procure the money which is exclusively of the petitioner. On the aforesaid submissions, a prayer was made to set aside the order of the learned Sessions Judge and the order of the 5 learned Magistrate be restored and the seized amount be handed over to the petitioner and the revision be allowed. On the contrary, learned counsel for the Income Tax Department submitted that the seized amount is the undeclared income of the petitioner. The Income Tax Authority has every right over that money, that is subject to tax and other penalty. The learned Addl. Sessions Judge has rightly acceded their contention and has rightly ordered that the seized amount be handed over to the Department . During the course of arguments, learned counsel further submitted that as the petitioner has filed the return that is to be finalised at the relevant time, but on the basis of return, an amount of Rs.25,65,000/-, including interests became due. It was prayed to dismiss the revision petition. I have considered the rival submissions and perused the impugned order . The seized amount, as discussed aforesaid ,has not been claimed by any other person except the petitioner. The 6 learned Chief Judicial Magistrate, after considering the rival submissions, has passed an order to hand over this amount to the petitioner on supurdginama. Against that order the revision was filed on the pretext that this amount is subject to tax and other liability. Therefore, this amount was ordered to be handed over to the Department. During the course of arguments, learned counsel for the respondent specifically stated that on the basis of return filed by the petitioner, an amount of Rs.25,65,000/- including interest became due of the Department. Thus, without going into the details of the case , as the petitioner is a regular income tax payer, he is having his Permanent Account No., he has filed return and on the basis of return a maximum liability of tax, including interest, has been calculated that is of Rs.25,65,000/-. At this stage I am of the opinion that the Income Tax Department has no claim over and above that amount. Thus, on the basis of aforesaid discussion, the order passed by the learned Addl.Sessions Judge dated 24.07.08 is 7 quashed and set aside and the order passed by the learned Chief Judicial Magistrate (Railways) dated 11.04.08 is modified to this extent that out of the amount seized of Rs.30,00,000/- a sum of Rs.25,65,000/- be handed over to the Income Tax Department . That will be subject to final out come of the assessment and the remaining amount of Rs.4,35,000/- be handed over to the petitioner. Thus the revision is disposed of accordingly. (MANAK MOHTA), J. l.george