Whether auditors can refuse the department to have access to computer / laptops and/or refuse to provide password in case laptops have been seized.

S.R. BATLIBOI & CO. Versus DEPARTMENT OF INCOME TAX (INVESTIGATION) [2009 -TMI - 33618 - HC]

Facts of the Case:

While conducting an audit of EMAAR on 11.9.2007, the laptops of two employees of the Petitioner were seized by the Deputy Director, Income Tax (DDIT) in the course of conducting a Search and Seizure operation against EMAAR. Subsequently on 17.9.2007, the DDIT issued summons under Section 131 of the Income Tax Act, 1961 (the Act for the sake of brevity) on 17.9.2007 to Ms.Sandhya Sama and Shri Sanjay K. Jain, the employees of the Petitioner firm and their statements were recorded on 18.9.2007. It is further stated by the Petitioner that on the request of the DDIT these employees provided him with the electronic data relating to three companies of the EMAAR Group together with the print copies of the data. Nevertheless, the DDIT insisted on securing total and unrestricted access to the laptops obviously in order to gain information and data of all the other clients of the Petitioner. This request was refused by the employees. The seized laptops were sent by the Respondents to Central Forensic Science Laboratory (CFSL) who, however, could not ascertain the password and accordingly could not access the entire data on the laptops. The Petitioner was thereupon asked to disclose the password, which it again declined and thereafter the laptops were sealed in the presence of the said employees of the Petitioner.

Decision of the High Court

14. Coming back to the contention of the Petitioner, it has argued that the laptops that have been seized by the Respondent have confidential information relating to the accounts of 46 other clients, having no relation or business dealings with the Assessee, and seizure of these accounts will amount to serious breach of confidentiality which they are bound to protect by the principles of professional ethics. It is also our view that the Income Tax Department cannot make fishing or roving inquiry to initiate proceedings against all these companies which are the clients of the Petitioner. It has been argued orally as well as in the synopsis that the Petitioner cannot assist any party in breaking the law; this submission is illogical since it cannot be presumed that the accounts relating to 46 other clients of the Petitioner contained in the two laptops are of this character. The rigours of the law, inter alia the necessity to have reasons to believe so must be recorded and be followed by warrants. An indiscriminate search frustrates the whole scheme of Section 132 and emasculates the protective measures against these draconian powers.

19. Finally, so far as the prayers in the Petition are concerned, we are of the opinion that in a situation such as the one which we are seized with, in view of the fact that the Respondents have rejected the offer made by the Petitioner as recorded in our Order dated 18.11.2008 : the impugned summons, as referred to in Prayer (ii) of the Writ Petition are set aside, and the Respondents are directed to forthwith return the laptops to the Petitioner.

See

S.R. BATLIBOI & CO. Versus DEPARTMENT OF INCOME TAX (INVESTIGATION) [2009 -TMI - 33618 - HC]