| The Tax Publishers2020 TaxPub(DT) 3130 (Ker-HC) : (2021) 432 ITR 0465 : (2020) 275 TAXMAN 0568 CONSTITUTION OF INDIA, 1950
Article 226
Where assessee was assessed after following the procedure and he cannot contend in this proceeding that he was not liable for payment of tax, interest and penalty unless the order itself is challenged before appropriate authority competent to entertain appeal and appropriate remedy open to Income Tax officer was to apply section 226(4) for payment of money towards tax and other amounts due, therefore, amount necessary for satisfying liability of assessee would have to remain in custody of the court, despite any claim being raised by parties demanding interim custody, pending finalisation of the assessment proceedings.
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Writ - Release of Custody of cash invoking section 451 of Cr.P.C. - Authority seeking custody of cash, invoking section 451 of Cr.P.C -
Revenue authority, who was Assistant DIT(Investigation), challenged the common order of the JFCM in Cr.M.P. Nos. 4018 and 4857 of 2014. Magistrate by order refused to release cash produced in the court by Dy. S.P and dismissed Cr.M.P. No. 4857/2014 filed by authority seeking custody of cash, invoking section 451 of the Cr.P.C. Person, who claimed to be entitled to possess the cash, filed Cr.M.P. No. 4018/2014 which was, however, allowed in part. He did not file any proceeding challenging the correctness of order of Magistrate. Superintendent of Police arrested assessee in this Crl.M.C. with currency notes for his failure to account for its possession. Investigation did not reveal commission of any offence punishable under the Indian Penal Code. During this period, on information that unexplained amount of cash was seized by Police from possession of assessee. Held: Unexplained amount of cash was possessed by a person, has to apply to the court under section 226(4) for payment of the money due under the tax. Authority submitted a statement intimating that assessment was completed as against assessee making a demand for an amount towards tax and interest, etc. Assessment produced before this Court shows that assessee was assessed after following the procedure and he cannot, therefore, contend in this proceeding that he was not liable for payment of tax, interest and penalty unless the order itself is challenged before the appropriate authority competent to entertain appeal. As to amount for which he could be finally held liable, it is for the authorities to determine and quantify the sum. Appropriate remedy open to ITO was to apply section 226(4) for payment of money towards tax and other amounts due. Amount necessary for satisfying the liability of assessee would have to remain in the custody of the court, despite any claim being raised by parties demanding interim custody, pending finalisation of the assessment proceedings.
REFERRED : Followed:K. Choyi v. Syed Abdulla Bafakky Thangal & Ors. (1980) 123 ITR 435 (SC) : 1980 TaxPub(DT) 0675 (SC) Abdul Khader v. Sub-inspector of Police & Ors. (1999) 240 ITR 489 (Ker) : 1999 TaxPub(DT) 1019 (Ker-HC)
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