Dr. Sunil Kapoor vs. Authorized Income Tax Officer

W.P.No.18809/2011 Dr.Sunil Kapoor Authorized Income Tax Officer, & others 1 12.12.2011 Shri Mukesh Agarwal, counsel for petitioner. Shri Sanjay Lal, counsel for respondent nos.1 to 5. Shri Kumaresh Pathak, Dy.A.G., for respondent nos.6 & 7. The petitioner has sought following reliefs :- “(1) To direct the respondents 1 to 5 to release the Pistol and its Cartridges and hand them over to the respondent no.5 & 6 for their verification and also verification of the petitioner's license and for further action in accordance with law. (2) Issue any other appropriate writ, direction or order and grant such other appropriate relief which this Hon'ble Court may deem fit in the facts and circumstances of this case.” The case of petitioner is that on 25.7.2009 a search operation was conducted in the premises of petitioner and locker of petitioner bearing no.39 in the name of petitioner and his wife was opened by search party, in which one pistol bearing no.103542 made in Czechoslovakia and 9 cartridges were found, which were seized by the search party. A panchnama dated 25.7.2009 was prepared and the aforesaid arm along with cartridges were taken into possession by the Income Tax authorities. The case of petitioner is that it was a licensed arm. The seizure panchnama Annexure P-1 reflects that from locker the aforesaid arm was seized by the Income Tax officers. As it was a licensed arm in the name of petitioner vide license Annexure P-3 so the petitioner moved an application to the authorities for return of the arm, but it has not been returned till date. Copies of the applications Annexure P-5 dated 7.8.2009 and Annexure P-6 dated 18.8.2011 are on record. It is submitted that till date no action has been taken by the respondent no.2 on the aforesaid applications, while the petitioner is entitled for the custody of arm and ammunition which are licensed. W.P.No.18809/2011 Dr.Sunil Kapoor Authorized Income Tax Officer, & others 2 On notice it is stated by Shri Lal that on 8.12.2011 the reply has been filed, a copy of which is made available to us. In para 3 of the reply, it is stated that the assessment proceedings are going on, however respondents are having no objection in handing over the pistol and cartridges to respondent no.6, after the finalization of assessment i.e. after 31.12.2011, which is the prayer made by the petitioner in this petition. From the perusal of aforesaid fact, it is apparent that the arm was found in the locker of petitioner from where it was seized along with other articles. On being asked specifically to Shri Lal and Shri Pathak, whether there is any provision empowering the Income Tax authorities to take custody of an arm or ammunition found at the time of search and seizure under the Income Tax Act or the Arms Act, no specific reply was given either by Shri Lal or by Shri Pathak. On the contrary Shri Pathak submitted that as per the provisions as contained in the Arms Act there is no provision empowering the Income Tax authorities to seize any arm and ammunition, even if it is found during the course of search. When any arm is found during the course of search and the Income Tax authority is of the view that such arm and ammunition requires seizure, he has to take assistance of the Police Officers who are empowered to seize under the provisions of Arms Act, but until and unless they are specifically empowered under the Income Tax Act or under the Arms Act, prima facie we are of the view that the authorities were not empowered to seize the arm, which was stated to be a licensed arm. In these circumstances, when there is no offence alleged against the petitioner in respect of arm, either under the Income Tax Act or under the Arms Act, the petitioner himself is entitled to take custody of arm and ammunitions, which were seized by the W.P.No.18809/2011 Dr.Sunil Kapoor Authorized Income Tax Officer, & others 3 Income Tax Authorities during the course of search and seizure on 25.7.2009. In view of aforesaid, we direct respondent no.2 to forthwith release the aforesaid pistol and cartridges to the petitioner, on filing a supardnama in this regard before him. With the aforesaid direction, this petition is finally disposed of, with no order as to costs. C.C., as per rules. (Krishn Kumar Lahoti) (Smt.Vimla Jain) J U D G E J U D G E M