High Court Kerala High Court

Prakash Gold Palace (P) Ltd. And … vs The Asst. Commissioner Of Income … on 25 January, 2008

Kerala High Court
Prakash Gold Palace (P) Ltd. And … vs The Asst. Commissioner Of Income … on 25 January, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 168 of 2008()



1. PRAKASH GOLD PALACE (P) LTD. AND ANOTHER
                      ...  Petitioner

                        Vs

1. THE ASST. COMMISSIONER OF INCOME TAX,
                       ...       Respondent

                For Petitioner  :SRI.S.ARUN RAJ

                For Respondent  : No Appearance

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.M.JOSEPH

 Dated :25/01/2008

 O R D E R
                        H.L. DATTU, C.J. & K. M. JOSEPH, J.
                         --------------------------------------------------
                                 W. A. NO. 168 OF 2008
                         ---------------------------------------------------
                          Dated this the 25th January, 2008

                                          JUDGMENT

H.L. DATTU, C.J:

This Appeal is directed against the orders passed by the learned Single

Judge in W.P.(C). No.24585/07 dated 22.8.2007. By the impugned Order, the

learned Judge has modified Ext.P9 order passed by the Assistant Commissioner of

Income Tax, Central Circle-I, Ernakulam dated 12.7.2007.

2. In this Order of ours, we will be referring the parties as arrayed in the Writ

Petition.

3. First petitioner is a manufacturer of gold ornaments. First petitioner claims

that the second petitioner is its employee. It is the claim of first petitioner Company

that it effects large scale sale of gold ornaments to various reputed gold merchants

and traders. It is further stated that it is an assessee under the provisions of the

Kerala Value Added Tax Act and Central Sales Tax Act. It is its further case that the

gold ornaments are principally manufactured in West Bengal and from their stock, it

was transferred to Chennai, and its further case is that the gold ornaments required

in Kerala are usually stock transferred from Chennai to Cochin.

4. Case of first petitioner is that the goods sent from Chennai to Kerala

through the second petitioner was seized by the Officials of the Income Tax

Department.

5. Second petitioner had filed a petition on 23.1.2007, inter alia, requesting

the respondents to release the gold ornaments seized on 24.7.2006.

6. The Assistant Commissioner of Income Tax, while entertaining the

petition, has directed the second petitioner to furnish sufficient Bank Guarantee of

equivalent amount, to release the seized gold ornaments (Ext.P9 order).

W.A.NO.168/08 2

7. Aggrieved by the said order passed by the Assistant Commissioner of

Income Tax, both the petitioners were before this Court in W.P.(C). No.24585/07.

The learned Single Judge by order dated 22.8.2007, has modified the order passed

by the Assistant Commissioner of Income Tax and further, has directed the

respondents in the Writ Petition to release the entire gold seized, to the petitioners

on the petitioners furnishing Bank Guarantee for 70 per cent of the value of the

goods and on both the petitioners jointly executing a simple bond without surety for

the balance 30 per cent in favour of the first respondent. The Order passed by the

learned Single Judge is as under:

“Since maximum rate of tax payable is 30% and even

if the entire value of goods is treated as escaped income,

the maximum tax and equal amount towards penalty will

account for 70% of it’s value and since first petitioner is an

assessee, W.P. is disposed of modifying Ext.P9 directing the

first respondent to release the entire goods to the petitioners

on petitioners together or first petitioner executing Bank

Guarantee for 70% of the value of the goods and on both

petitioners jointly executing a simple bond without surety for

the balance 30% in favour of the first respondent.”

8. Aggrieved by the orders passed by the learned Single Judge, the

petitioners are before us in this Writ Appeal.

9. Shri T.N. Seetharaman, learned counsel appearing for the appellants,

after arguing the matter for quite some time, may be knowing the mind of the court,

would submit that the first petitioner shall deposit a sum of Rs.24 lakhs for the

present and that amount may be adjusted towards the tax liability that may be

determined by the respondents either against the first or second petitioner and on

such payment, this Court may direct the first respondent to release the entire gold

seized on 24.7.2006.

W.A.NO.168/08 3

10. In view of the aforesaid submission made by learned counsel for the

appellant, we had requested Shri George K. George, learned counsel appearing for

the Income Tax Department to obtain appropriate instructions from the Officials of

the Income Tax Department.

11. Shri George K. George after obtaining instructions would inform us that

the Department is prepared to accept a sum of Rs.24 Lakhs (Rupees Twentyfour

Lakhs) that may be paid by the first petitioner for and on behalf of the second

petitioner, for release of the gold ornaments and the amount so deposited would be

adjusted towards any tax liability that may be fastened by the first respondent either

against the first petitioner or the second petitioner. He would further submit that

liberty may be reserved to the respondents to recover the balance amount that may

be found due after the proceedings are completed by the first respondent, either

from the first petitioner or from the second petitioner. In view of the submissions so

made by both the learned counsels, it may not be necessary for us at this stage to

go into the correctness or otherwise of Ext.P9 order passed by the Officers of the

Department or the Orders passed by the learned Single Judge. Accordingly, we

pass the following:

Order

(1) The Writ Appeal is disposed of.

(2) The first petitioner/first appellant shall deposit a sum of Rs.24 Lakhs

(Rupees Twentyfour Lakhs) with the first respondent within fifteen days from today. If

such deposit is made, the first respondent is directed to release the gold ornaments

seized on 24.7.2006 either in favour of the first petitioner or in favour of the second

petitioner.

(3) Liberty is reserved to the Income Tax Department to recover any amount

that may be found due after completing the assessment proceedings either against

the first petitioner or the second petitioner.

W.A.NO.168/08 4

(4) First respondent is directed to complete the assessment proceedings

initiated against the first or the second petitioner as expeditiously as possible and, at

any rate, within six weeks from today.

With these observations and directions, the Writ Appeal is disposed of.

Ordered accordingly.

H.L. DATTU,
CHIEF JUSTICE

K.M. JOSEPH,
JUDGE

kbk/DK.