2002 (10) TMI 49 - HC - Income Tax

Search and Seizure - There is no indication as to whether such seized articles or things handed over to the Assessing Officer within a period of 60 days from the date on which the last of the authorisation for search was executed. Therefore continuance of proceeding of search and seizure is absolutely illegal after the expiry of the period. The authorised officer has no jurisdiction to withhold the seized articles.- taking into the totality of the matter I am of the view that the search and seizure proceeding has to be quashed and accordingly quashed without affecting any assessment by the Assessing Officer independently. Seized articles will be returned to the writ petitioner within a period of fortnight from the date of making application on his behalf.

Issues Involved:
1. Legality of the search and seizure conducted by the Income-tax Department.
2. Validity of the prohibitory orders on bank accounts.
3. Requirement of "reason to believe" under Section 132 of the Income-tax Act.
4. Assessment of block period.
5. Procedural adherence and clerical errors during the search and seizure process.
6. Invasion of privacy and rights under Article 19(1)(g) read with Article 300A of the Constitution of India.

Detailed Analysis:

1. Legality of the Search and Seizure Conducted by the Income-tax Department:
The petitioner alleged that the search and seizure conducted at his business premises and residence were arbitrary, illegal, and without jurisdiction. The court found that the search and seizure were based on assumptions without fulfilling the test and requirement of "reason to believe" under Section 132 of the Income-tax Act. The court held that the search and seizure were wholly arbitrary and illegal, emphasizing that "reason to believe" cannot be equated with "reason to suspect." The belief must be held in good faith and must have a rational connection or relevant bearing for the formation of the belief.

2. Validity of the Prohibitory Orders on Bank Accounts:
The petitioner received letters from his bankers stating that they could not allow operations of his bank accounts due to a prohibitory order under Section 132(3) of the Act. The petitioner clarified that his concern "Pratik Food Products" is a proprietorship concern, not a private limited company. The prohibitory orders were revoked for the bank accounts of Pratik Food Products but not for other assessees. The court noted that the prohibitory orders were not renewed beyond 60 days, rendering them invalid. The court declared that the continuation of the prohibitory orders was illegal and should be set aside.

3. Requirement of "Reason to Believe" Under Section 132 of the Income-tax Act:
The court emphasized that the condition precedent for search and seizure is "reason to believe," which cannot be merely a pretence. The court cited several judgments, including Ganga Prasad Maheshwari v. CIT and ITO v. Lakhmani Mewal Das, to underscore that "reason to believe" involves both subjective satisfaction and objective reasons. The court found that the reasons recorded by the authorities did not meet the test of "reason to believe" and were more akin to "reason to suspect."

4. Assessment of Block Period:
The court noted that block assessment is a subsequent event to search and seizure. If the search and seizure fail the test of law, the block assessment cannot stand. The court held that the steps taken by the income-tax authorities to make "Haldiram Bhujiawala" block applicable to the petitioner were misconceived. The court clarified that flourishing a business under a brand name cannot be the reason to believe in tax evasion.

5. Procedural Adherence and Clerical Errors During the Search and Seizure Process:
The court acknowledged that there were clerical errors, such as the incorrect naming of the proprietorship concern as a private limited company. However, the court found that these errors did not vitiate the substance of the proceedings. The court also noted that the prohibitory orders were not renewed within the mandatory 60-day period, rendering them invalid.

6. Invasion of Privacy and Rights Under Article 19(1)(g) Read with Article 300A of the Constitution of India:
The court recognized that the search and seizure interfered with the petitioner's right to practice any profession or to carry on any occupation, trade, or business, as protected under Article 19(1)(g) read with Article 300A of the Constitution of India. The court held that the authorities' actions were a serious invasion of the petitioner's privacy and freedom, which must be exercised strictly in accordance with the law.

Conclusion:
The court quashed the search and seizure proceedings, declaring them illegal and without jurisdiction. The court directed the authorities to return the seized articles to the petitioner within a fortnight and confirmed the interim orders. The court emphasized the importance of adhering to the legal requirements of "reason to believe" and the procedural safeguards in the exercise of search and seizure powers.

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