1970 (5) TMI 8 - HC - Income Tax

Seizure - retention of documents for more than 180 days - such retention is without jurisdiction

Summary

Issues:
Retention of books of accounts and documents under section 132 of the Income-tax Act, 1961 without proper communication of approval by the Commissioner for extension of retention period.

Detailed Analysis:

The judgment delivered by Justice Sankar Prasad Mitra of the High Court of Calcutta dealt with a petition concerning the retention of books of accounts and documents by tax authorities under section 132 of the Income-tax Act, 1961. The primary contention revolved around the necessity of obtaining approval from the Commissioner for retaining seized items beyond a specified period. The petitioner argued that the approval granted by the Commissioner was only communicated until April 30, 1967, and no subsequent approvals were made known to them. This lack of communication regarding extensions of the retention period raised concerns about the jurisdiction of the tax authorities to continue holding the seized documents.

Referring to the relevant subsections of section 132, the judgment emphasized the importance of communicating the Commissioner's approval to the affected party. Justice Mitra highlighted a previous judgment by T. K. Basu J., which supported the view that without the communicated approval, the individual cannot exercise their rights as per the Act. In this case, the petitioner asserted that no further approvals beyond April 30, 1967, were made known to them, casting doubt on the legality of the continued retention of the seized documents.

The affidavit-in-opposition presented alleged lawful extensions of the retention period, but crucially, no subsequent approvals from the Commissioner were annexed to support these claims. The absence of communicated approvals post-April 30, 1967, raised serious questions about the jurisdiction of the tax authorities to retain the documents. The respondent's argument that communication of approval was unnecessary under the Income-tax Act was not accepted by Justice Mitra, who emphasized the significance of such communication in ensuring procedural fairness and adherence to legal requirements.

Consequently, the judgment concluded with an order in favor of the petitioner. A writ of mandamus was issued, directing the respondent to return all seized books and documents that were still being retained without proper communicated approvals. The decision did not impose any costs on either party, and a three-week stay was granted on the operation of the order upon the oral application of the respondent's counsel.