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2008 DIGILAW 1259 (PNJ)

Gee Kay International v. Union Of India

2008-07-24

AUGUSTINE GEORGE MASIH, SATISH KUMAR MITTAL

body2008
Judgment Augustine George Masih, J. 1. The petitioner has filed this writ petition praying therein for issuance of a writ of mandamus directing respondent No. 2 to return/refund a sum of Rs. 1 crore recovered from the petitioner and also to return post dated cheques of Rs. 75 lacs. It has been further prayed that respondent No. 2 be directed to return the record of the petitioner and supply a copy of Panchnama drawn during serach and seizure by the department. 2. Learned counsel for the petitioner has submitted that there is no amount outstanding against the petitioner but still under duress and threat, the partners of the petitioner were forced to deposit the draft of Rs. 1 crore and three other post dated cheques of Rs. 75 lacs. The said fact is disputed by the counsel for the respondents. He states that the said draft was deposited by the partners of the petitioner along with the cheques voluntarily, when the search and seizure was conducted by the department. It has been pointed out by him that the investigation is under way and the liability of the petitioner could go much more than the amount voluntarily deposited by the petitioner. He has further stated that the cheques of Rs. 75 lacs were presented to the bank and the same have bounced. He contends that the prayer of the petitioner thus may not be granted. However, he has not disputed that as of date, there is no amount outstanding against the petitioner. 3. We have heard the learned counsel for the parties and are unable to agree with the learned counsel for the respondents that the amount deposited by way of bank draft should not be ordered to be refunded although as of date there is no amount outstanding against the petitioner. Since the investigation is continuing and the adjudicating authority has not yet determined any amount as due which is payable by the petitioner, there is no justification for the department to retain the sum of Rs. 1 crore and the cheques of Rs. 75 lacs. The respondent has no legal or moral right to retain the said amount in the absence of the demand raised. However, it will be open to the department to recover the same from the petitioner as and when the demand is created. 4. 1 crore and the cheques of Rs. 75 lacs. The respondent has no legal or moral right to retain the said amount in the absence of the demand raised. However, it will be open to the department to recover the same from the petitioner as and when the demand is created. 4. The affidavit dated 14-7-2008 of Ranbir Singh son of Amrik Singh, Partner M/s. Gee Kay International, Jalandhar (petitioner) has been filed along with C.M. No. 12944 of 2008 in this case, wherein he has categorically stated that the deponent is having two industrial plots at C-29 & 30, Sports and Surgical Complex, Jalandhar, in the name of the petitioner itself, the deponent is owner of the property since 1994 and the market value of the said property is more than 1 crore. There is no charge or mortgage against the said property and the said property is free from all encumbrances. Shri Ranbir Singh has further undertaken that he will not alienate, dispose of, create any charge or mortgage said property and will keep the said property free from all encumbrances till the adjudication of the case under investigation by Directorate of Revenue Intelligence (DRI). In the light of the above, the interest of the revenue is fully safeguarded as it is not disputed that the refund of Rs. 1 crore and the return of cheques amounting to Rs. 75 lacs would be covered by the property aforementioned. 5. For the reasons mentioned above, the respondent No. 2 is directed to refund the amount of Rs. 1 crore and to return the cheques of Rs. 75 lacs admittedly deposited by the petitioner along with copies of Panchnama drawn during search and seizure and also copies of the records and data available on the computers/floppies/CDs etc. seized by the department within a period of one month from today. The two industrial plots at C-29 & 30, Sports and Surgical Complex, Jalandhar in the name of the petitioner, which is free from any encumbrances, shall be kept as security to meet any further demand of revenue. The enquiry/investigation initiated against the petitioner by the Directorate of Revenue Intelligence (DRI) shall be finalized expeditiously but not beyond the period of one year from today. It is made clear that this order is being passed without prejudice to the rights and claims of either of the parties.