C. S. P. Singh, J. - The petitioners are two ladies. One is the wife of Shri Laxmi Chandra Gupta and the other is the widow of the late Shyam Lal. The first petitioner is the daughter of Jamuna Prasad Jaiswal. The second petitioner is the sister-in-law of Jaiswal in connection with a marriage, while petitioner No. 2 is alleged to be permanently residing with Jamuna Prasad Jaiswal, as she was a widow and there was no one to look after her at her father-in-laws place.
2. On the 5th August 1975, a search was conducted at the residence of Jamuna Prasad Jaiswal, Munni Lal Jaiswal, Vijai Shankar Jaiswal, Heara Lal Jaiswal and Suresh Chandra Jaiswal. A large number of ornaments, cash and fixed deposit receipts were seized in the search.
3. The petitioners filed the present petition challenging the seizure of certain bank accounts, fixed deposit receipts and ornaments as they claimed them to be theirs. After the petition was admitted, the Income-tax Officer passed an order under section 132(5) of the Income-tax Act treating the various properties seized as belonging to the firm Messrs. Jamuna Prasad Munni Lal. It has not been disputed that before passing the impugned orders, the petitioner were not heard and neither the objections which they had preferred were considered. From the observation made in the case of Director of Inspection of Income-tax, (Investigation), New Delhi and another vs . Pooran Mall & sons and another : 96ITR390(SC) , it appears that third parties are to be afforded an opportunity to substantiate their claim, where they claim the property seized to be theirs.
4. We accordingly set aside the impugned order of the Income-tax Officer and direct that the matter should be decided afresh after giving a reasonable opportunity to the petitioners to substantiate their objections. We further direct the Commissioner of Income-tax, Lucknow to have the matter tried and decided by another Income-tax Officer at Deoria other than the one who passe the impugned order, and those who have sworn the counter-affidavit in the case. In case no such officer is available at Deoria, he should assign an Income-tax Officer to hear the case at Deoria. The petitioner are entitled to their costs. The Income-tax Officer concerned should decide the case within a period of three months from the date of the communication of this order to the Commissioner of Income-tax, Lucknow.
5. A copy of this order shall be sent to the Commissioner of Income-tax, Lucknow.