JUDGMENT
K.S. Paripoornan, J.
1. The original petition is filed for the issue of a writ of certiorari to quash Ex. P-20 order dated October 15, 1985, passed by the first respondent under Section 132(5) of the Income-tax Act, 1961. There is also a prayer for the issue of an appropriate writ or direction to declare that the amount of Rs. 1,50,000 seized on July 4, 1982, belongs to the petitioner and to direct respondents Nos. 1 and 2 to forbear from giving effect to exhibit P-20 and directing the respondents to return the amount of Rs. 1,50,000 with interest due thereon to the petitioner.
2. On July 4, 1982, the officers of the Special Customs Preventive Unit, Kanhangad, apprehended the third respondent–Shri K. K. Abdulkareem
–and Shri K. Hamza and recovered a sum of Rs. 40,000 and Rs. 1,10,000 from them, respectively. They were proceeding to Kuttiangadi from Kanhangad by bus. No prima facie case under the Customs Regulations was disclosed. The Enforcement Directorate made over the case to the Income-tax Department for investigation. The money was taken over by the Department under Section 132A(1) of the Income-tax Act on June 27, 1985. The first respondent–Income-tax Officer–issued notices to the third respondent–Shri K.K. Abdulkareem–Shri K. Hamza and Shri P. M. Hasan (Ashraf Fabrics, Kanhangad) (uncle of the petitioner) calling for explanation regarding the nature of possession and source of acquisition of the monies. They furnished their explanations. Apart from the above three persons, the petitioner–P.M. Kunhabdulla Haji–also gave a statement before the first respondent. After considering the various explanations and the statements of the parties, the first respondent held that the possession and ownership of the total sum of Rs. 1,50,000 vested with Shri K.K. Abdulkareem and the source of acquisition and nature of possession of money seized have to be considered in his hands. After considering the statements of Shri Abdulkareem, Shri K. Hamza, Shri P, M. Hassan (uncle of the petitioner) and P. M. Kunhabdulla Haji (petitioner herein) and the relationship between the parties and the nature of possession of the money seized from K. K. Abdulkareem (3rd respondent herein) and his friend, Shri K. Hamza, it was found that the explanations offered by the third respondent and Hamza are not satisfactory and that the amount should be treated as only part of his undisclosed income. Since the amount was seized on July 4, 1982, on the basis of the materials on record, a summary assessment was made for the financial year 1982-83, This order (exhibit P-20) dated October 15, 1985, passed under Section 132(5) of the Income-tax Act is in challenge in this original petition. I heard counsel for the petitioner, Mr. S. A. Nagendran. It is the petitioner’s case that the amount seized from the third respondent–Abdulkareem–and Shri K. Hamza belongs to him. Briefly stated, the plea of the petitioner is that he had given a loan to M/s. Ashraf Fabrics, Kanhangad, in 1980. While the petitioner was in India, M/s. Ashraf Fabrics returned the balance of the loan Rs. 1,50,000, on June 14, 1982. It was kept in the house of the petitioner in Kanhangad. The petitioner instructed his wife, Smt. Beefathumma, to give the said amount to Shri O.P. Ibrahimkutty, Fish Merchant, Payangadi. Thereafter, he left India for Sharjah on June 16, 1982. The petitioner’s wife entrusted the amount of Rs. 1,50,000 to her brother. Shri Abdulkareem, to hand over the amount to Shri O. P. Ibrahimkutty on July 4, 1982. The third respondent along with his friend, Shri K. Hamza, proceeded to Payangadi by bus to hand over the amount to Ibrahimkutty and on the way the amount was
seized by the Special Customs Preventive Unit. The amount really belongs to the petitioner. It has been so stated before the first respondent by all concerned. Even so, holding that there are contradictions in the various statements furnished by the parties, the first respondent held that the money seized belongs to the third respondent. This is patently illegal. Exhibit P-20 order suffers from serious infirmity and deserves to be annulled. So runs the argument of petitioner’s counsel.
3. Section 132(5) of the Income-tax Act, 1961, in so far as it is relevant for the purpose of this case, is as follows :
“Where any money, bullion, jewellery or other valuable article or thing (hereafter in this section and in sections 132A and 132B referred to as the assets) is seized under Sub-section (1) or Sub-section (1A), the Income-tax Officer, after affording a reasonable opportunity to the Person concerned of being heard and making such enquiry as may be prescribed, shall, within one hundred and twenty days of the seizure, make an order, with the previous approval of the Inspecting Assistant Commissioner,–(i) estimating the undisclosed income (including the income from the undisclosed property) in a summary manner to the best of his judgment on the basis of such materials as are available with him;
(ii) calculating the amount of tax on the income so estimated in accordance with the provisions of the Indian Income-tax Act, 1922 (11 of 1922), or this Act. ”
4. It is evident that this section empowers the Income-tax Officer to estimate the undisclosed income of the person concerned in a summary manner to the best of his judgment. Admittedly, the amount was seized from the third respondent–K.K. Abdulkareem–and Shri K. Hamza, who accompanied him, while they were travelling by bus. Proceedings were initiated against the third respondent. Prima facie, the person from whose custody or possession the money has been seized is the “person concerned” who should be given an opportunity of being heard in the enquiry under Section 132(5) of the Act in view of Section 132(4A) of the Act and the presumption enacted therein. The Income-tax Officer, in view of the presumption enacted in Section 132(4A) of the Act, gave notice to the third respondent and passed the order under Section 132(5) of the Act. Prima facie, there is nothing illegal or improper in the procedure adopted by the Income-tax Officer. After affording sufficient opportunity to the third respondent and Hamza from whom the amounts were seized and also after recording the statement of the petitioner and others and on an analysis of the various facts and circumstances, the first respondent in exhibit P-20 order found that the amount formed part of the undisclosed income of the third respondent. Such a finding was arrived at on an
appreciation of various facts and circumstances. It is not the case of the petitioner that the said finding is based on no material or is otherwise perverse. The finding so arrived at is not ordinarily open to challenge is these proceedings under article 226 of the Constitution of India. As stated, the order passed under Section 132(5) of the Act is only a summary one and the matter is reviewable in the regular assessment on the basis of proper materials. In my opinion, exhibit P-20 is not open to any challenge, at this stage, in these proceedings.
5. The original petition should fail on a more fundamental ground. Section 132(11) read with Section 132(12) of the Income-tax Act provides an equally efficacious alternate remedy to the petitioner to make an application before the Commissioner of Income-tax stating his objections and requesting for appropriate relief. Sections 132(11) and 132(12) of the Income-tax Act are as follows :
“(11) If any Person objects for any reason to an order made under Sub-section (5), he may, within thirty days of the date of such order, make an application to the Commissioner stating therein the reasons for such objection and requesting for appropriate relief in the matter.
(12) On receipt of the application under Sub-section (10) the Board, or on receipt of the application under Sub-section (11) the Commissioner, may, after giving the applicant an opportunity of being heard, pass such orders as it or he thinks fit.”
6. The power vested in the Commissioner under Section 132(11) read with Section 132(12) of the Act is very wide and the petitioner can ventilate his grievances, if any, in an application which can be filed before the Commissioner.
7. Counsel for the petitioner stated that the petitioner was not a party to exhibit P-20 proceedings. So, he cannot invoke Section 132(11) of the Act and file an application before the Commissioner. This contention is without substance. Any person objecting to an order passed under Section 132(5) of the Act, for any reason, can invoke Section 132(11) of the Act. It is not confined to the person from whom the amounts were recovered or the person against whom an order under Section 132(5) was passed. Even if a copy of the order passed under Section 132(5) was not served on the petitioner, it is open to “any person” to file an application under Section 132(11) of the Act within thirty days from the date of such order, which means, thirty days from the date of the communication of such order. It is so as against the person who was a party to the proceeding and against whom an order under Section 132(5) was passed “eo nomine”. In the case of strangers, prima facie it appears, that 30 days from the date of such order may mean, 30 days from the date of knowledge of such order,
so far as the person who files an application under Section 132(11) is concerned. For these reasons, I hold that there is no warrant to exercise the discretionary jurisdiction of this court under Article 226 of the Constitution of India. I repel the contention of the petitioner that the remedy provided under Section 132(11) of the Act is not an equally efficacious remedy. The decision of the Madras High Court in Gita Devi Dhurka v. ITO [1977] Tax LR 722, turned on the particular facts of that case. It was also before the amendment of Section 132(11) and (12) of the Income-tax Act. On facts, the said decision has no application to the instant case. There is no merit in this original petition. It is dismissed in limine.