9911796707
TMI BlogProcedure for Search and Seizure - Section 132X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral or Principal Director or Director or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner Additional Director or Additional Commissioner or Joint Director, Joint Commissioner, Assistant Director or Deputy Director, Assistant Commissioner or Deputy Commissioner or Income-tax Officer Additional Director or Additional Commissioner or Joint Director, or Joint Commissioner Assistant Director or Deputy Director, Assistant Commissioner or Deputy Commissioner or Income-tax Officer. 2. When search can be authorized [ Section 132(1) ] If the above authority on the basis of information in his possession, have reasons to believe that: a. Any person to whom a summon or notice was issued to produce books of account or other documents u/s 131 or 142(1), has wilfully omitted or failed to produce such books of account or other documents by such summons or notice; b. A person to whom a summon or a notice u/s 131 or 142(1) has been or might be issued, will not or would not, produce any books of account or other documents which will be usef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other valuable article or thing found as a result of such search. However, bullion, jewellery or other valuable article or thing, being stock-in-trade of the business, found as a result of such search shall not be seized but the authorised officer shall make a note or inventory of such stock-in-trade of the business. f. place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom; g. make a note or an inventory of any such money, bullion, jewelry or other valuable article or thing. Notes: - * Where the client of the auditor was subject to search and the audit firm itself has not been subject to search, on a writ petition by the auditors, it was held the search party does not have access to data of the other clients contained in the laptops of the auditor. [S.R.Batliboi & Co. v Department of Income-tax (Investigation) 2009 (5) TMI 36 - DELHI HIGH COURT] * Deemed/ Constructive Seizure:- Where it is not possible or practicable to take physical possession of any valuable article or thing and remove it to a safe place due to its volume, weight or other physical characteristics or due to its being of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained by the authorized officer for a period exceeding 30 days from the date of the order of assessment or reassessment under section 153A unless the reasons for retaining the same are recorded by him in writing and approval of Chief Commissioner or Commissioner for such retention is obtained. 6. Transfer of Assets & Books seized to jurisdiction AO - Where the authorized officer has no jurisdiction over the person searched by him, the books of account or assets seized shall be handed over by the authorized officer to the Assessing Officer having jurisdiction over such person within a period of 60 days from the date on which search was completed. 7. Rights and duties of the person searched:- The person searched has the following rights- * To see the warrant of authorization duly signed and sealed by the issuing authority. * To verify the identity of each member of the search party. * To make personal search of all members of the search party before the start of the search and on conclusion of the search. * To insist on personal search of ladies being taken only by lady, with strict regard to decency. * To have at least two respectable and independent residents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r destroys any documents with the intention of preventing the same from being produced or used as evidence before the court or public servant, he shall be punishable with imprisonment or fine or both, in accordance with section 204 of the Indian Penal Code. * To answer all queries truthfully and to the best of his knowledge. He should not allow any third party to either interfere or prompt while his statement is being recorded by the authorized officer. In doing so, he should keep in mind that- Penalty - i. Failure to comply with section 132(1)(iib) ii. Failure to comply with section 153A. 8. If books of accounts, etc. are kept in building not specified in the search warrant [Section 132(1A)] - Where any Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner has reason to suspect that any books of account, other documents, money, bullion, jewellery or other valuable article or thing in respect of * which an officer has been authorised by the Principal Director General or Director General or Principal Director or Director or any other Principal Chief Commissioner or Chief Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er with effect from June 1, 2002. 12. Examination on oath [Section 132(4)]:- The authorized officer may during the course of search and seizure, examine on oath any person who is found to be in possession or control of any books of account, documents etc. Any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Act. However, all persons who are found at place of search are not automatically covered by action under section 132. According to Explanation to section 132(4), the examination of any person may not be merely in respect of any books of account, documents or other assets found as a result of search but also in respect of all matters relevant for the purpose of any investigation, connected with any proceedings under the Act. 13. Presumptions [section 132(4A)]:- * Where any books of account, other documents, money, bullion, jewelry and other valuable article is found in possession or control of any person in the course of a search, the following presumptions can be made- * a. Those books of account, other documents money, bullion, jewelry and other valuable article or thing belongs to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax Act, 1922, or this Act in respect of the years for which the books of account or other documents are relevant are completed. * However, if the person legally entitled to the books of account or other documents, etc., objects to the approval given by the Principal Chief Commissioner or Chief Commissioner, Principal Commissioner or Commissioner, Principal Director General or Director General or Principal Director or Director, he may make an application to the Board stating therein the reasons for the objection and requesting for return of books of account etc. The Board shall pass such order as it thinks fit after providing an opportunity of hearing of the applicant. [ Section 132(10) ] 15. Taking copies of seized documents [Section 132(9)]:- The person from whom the books of account or other documents were seized is permitted to make copies thereof, or take extracts therefrom, in the presence of the authorized officer or any other person empowered by him in this behalf and at such place and time as the authorized officer may provide. 16. Section 132(9A) - Where the authorized officer has no jurisdiction over the person referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Documents of department cannot be shown at preliminary stage - Where during the course of arguments the petitioner wanted to see the records (documents) maintained by the department including the information and the noting's on the basis of which the authority had arrived at his satisfaction for conducting the search and seizure, the aforesaid documents could not be shown to the petitioners at that stage as their disclosure would hamper the enquiry pending against the petitioner. 22. Partners of firm - Partners of firm can make copies of books seized during search without being required to give undertaking that books belonged to them. 23 Apply Code of Criminal Procedure - The provisions of the Code of Criminal Procedure, 1973, relating to searches and seizure shall apply, so far as may be, to searches and seizure under section 132(1) or (1A). [ Section 132(13) ] 24. Board may make rules regarding Search Seizure - The Board may make rules in relation to any search or seizure under this section ; in particular, and without prejudice to the generality of the foregoing power, such rules may provide for the procedure to be followed by the authorised off ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
