2005 (3) TMI 79 - HC - Income Tax

Search - undisclosed income - initiation of this proceeding under section 158BD - petitioner, contends that search and seizure of the petitioner s house is wholly unauthorised and invalid - retention of the books of account and documents of the writ petitioner - petitioner would be entitled to explain the source of cash money, and jewellery traced by the Revenue during the aforesaid search and seizure.

Summary

Issues Involved:
1. Legality and validity of the search and seizure.
2. Retention of books of account and other documents.
3. Validity of proceedings under sections 158BC and 158BD of the Income-tax Act, 1961.

Detailed Analysis:

1. Legality and Validity of the Search and Seizure:
The petitioner challenged the search and seizure conducted on December 17, 1999, on the grounds that his name was not mentioned in the search warrant or notice. The search warrant was issued in the names of Sashi Kumar Modi, K.R. International Pvt. Ltd., and Mr. M.R. Modi. The petitioner claimed ownership of the premises through a family arrangement, but no registered document was provided to substantiate this claim. The court held that without a registered document, the property is still considered joint family property, and the search in the name of Sashi Modi was lawful and valid. The court also noted that the search and seizure could lawfully include third parties' obligations to pay tax.

2. Retention of Books of Account and Other Documents:
The petitioner argued that the retention of his books of account and documents beyond the statutory period was unauthorized and illegal. The court agreed that reasons for retention beyond 180 days must be communicated in writing to the concerned persons. The Revenue failed to produce evidence that such authorization was communicated for the period from June 15, 2002, to December 29, 2002. Therefore, the retention of documents during this period was deemed illegal. However, the court noted that subsequent valid retention orders had been passed, and the petitioner did not take timely steps to retrieve the documents.

3. Validity of Proceedings under Sections 158BC and 158BD:
The petitioner contended that proceedings under section 158BC were invalid as there was no search and seizure in his name. The court upheld this contention, noting that section 158BC applies to persons directly searched, while section 158BD applies to others. The initial proceedings under section 158BC were dropped, and a fresh notice under section 158BD was issued. The court held that the initiation of proceedings under section 158BD was justified based on the materials and documents seized. The court clarified that even after dropping proceedings under section 158BC, the Revenue could proceed under section 158BD, and there was no res judicata in such cases.

Conclusion:
The court ruled that the search and seizure in the name of Sashi Modi were lawful and valid, and the proceedings under section 158BD were justified. The retention of books of account and documents beyond the statutory period without proper communication was illegal, but subsequent valid retention orders were acknowledged. The petitioner was directed to file returns within three months, and the Revenue was ordered to release the books of account and documents within eight weeks, retaining xerox copies. The petitioner was also allowed to explain the source of cash and jewellery traced during the search and seizure. No order as to costs was made.