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TMI Blog2011 (4) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... y or perfunctorily issuing search authorisation, petition dismissed. - 14081 of 2010 - - - Dated:- 6-4-2011 - AKIL KURESHI, SONIA GOKANI MS., JJ. JUDGMENT Akil Kureshi J.- 1. The petitioner has challenged the warrant of authorisation issued under section 132(1) of the Income-tax Act, 1961 ("the Act" for short), and consequential action of the search and seizure undertaken by the respondents. 2. Briefly stated the facts are as follows : The petitioner is a sole proprietor of one M/s. Deepak Enterprises, a shroff-cum-commission agent. In the business premises of the petitioner at Bhavnagar, search was conducted by the Director General of Central Excise Intelligence ("the DGCEI" for short) on August 12, 2010, starting at about 11 a.m. During the course of such search, the officials of the Excise Department found cash of around Rs. 18.50 lakhs in the premises of the petitioner. When the search was going on one Shri Ishwarbhai Bharodia entered the premises of the petitioner carrying Rs. 6 lakhs in cash. It appears that the excise officers tipped of the income-tax authorities who with the team of the income-tax officials visited the premises, according to the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be lightly permitted. In support of his contentions, he relied on the following decisions : (1) In the decision of the Delhi High Court in the case of L. R. Gupta v. Union of India reported in [1992] 194 ITR 32 (Delhi) wherein the court was of the opinion that the expression "information" must be something more than mere rumour or gossip or hunch. There must be some material which can be regarded as information which must exist on the file on the basis of which the authorising officer can have reason to believe that action under section 132 is called for any of the reasons mentioned in clause (a), (b) or (c). It was further observed that when the action of issuance of authorisation under section 132 is challenged in a court of law, it would be open to the petitioner to contend that, on the facts or information disclosed, no reasonable person could have come to the conclusion that action under section 132 was called for. It was further observed that the opinion which has to be formed is subjective and, therefore, the jurisdiction of the court to interfere is very limited and that the court will not act as an appellate authority and examine meticulously the information in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court found that intimation simpliciter by the CBI that cash was found in possession of individual, will not be information sufficient for action under section 132 of the Act. (6) In the case of Dr. Mrs. Anita Sahai v. Director of Income-tax (Investigation) reported in [2004] 266 ITR 597 (All), wherein the Division Bench of the Allahabad High Court held that the Income-tax Department had acted only on rumours. The petitioners therein were leading doctors of Noida having huge practice and were regularly assessed to tax and had filed the income-tax returns. It was observed that there had been indiscriminate seizure without any application of mind. 4. On the other hand, learned counsel Shri Manish Bhatt appearing for the Revenue relied on the affidavit-in-reply as well as the original note-sheet to contend that there was sufficient material with the competent authority to authorise search. He submitted that the search actually started only after authorisation was issued. He contended that the mentioning of 4 p.m. in the panchnama was an error. He relied on the following decisions in support of search authorisation : (1) In the case of Pooran Mal v. Director of Inspection (In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner could not explain the source of the entire cash as the cash book was not written up to date. Books of account were not maintained properly. In short, the assessee was not able to explain the source of cash. He further submitted that during the search operation, certain vouchers were found from the premises of the assessee. On verification of the vouchers and the cash book, it was found that no entries were made with respect to such vouchers. 5. Original note-sheets leading to the issuance of authorisation for the search were placed for our perusal. We find that the satisfaction note was recorded by the DDIT (Investigation) Unit I, Ahmedabad, on August 12, 2010. The same was placed before the Joint DIT who perused the same and put his detailed comments and suggested that the same be placed for approval. This in turn was placed before the DGIT who again recorded that he had carefully perused the note of the DDIT and that of the Joint DIT. He made his detailed notes and recorded his satisfaction that he had reason to believe that the requirements of section 132(1)(c) are satisfied. He, therefore, proposed to issue warrant of authorisation under sub-section (1) of section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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