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TMI Blog2017 (11) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... "i) Whether on the facts and in totality of the circumstances of the case and in law, the entire search & seizure proceeing was illegal and unauthorised for want of compliance of the mandatory provisions contained in section 82 of the Act of 1994. ii) Whether on the facts and in totality of the circumstances of the case, the income/fees of the partners earned individually with their own individual skill and expertise could have been added in the income of the partnership firm though there was no dispute among the partners about individual income/fees. iii) Whether on the facts and totality of the circumstances of the case and in law, the CESTAT was correct in sustaining the levy and recovery of service tax on the amount of Rs. 10,59,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention that in view of the decision of this Court and Supreme Court even if the search and seizure is held to be illegal, the same documents can be relied upon. However, Mr. Gupta has relied upon the decision of this Court in case of Commissioner of Income Tax vs. Smt. Umlesh Goel & Ors. reported in [2016] 387 ITA 575 (Raj.) wherein it has been held as under:- "16.3 Since by the exercise of the power a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must be exercised strictly in accordance with law and only for the purposes for which the law authorises it to be exercised. If the action of the officer issuing the authorisation or of the designated officer is challenged, the officer concerned must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. Mr. Mehta, learned Counsel for the respondents has invited our attention to S.G. Nadakattinavar v. Commercial Taxes Officer II Circle, Hubli (1975) 35 S.T.C. 484. 17. In that case, it was held that the courts should examine in each case whether the petitioner has been really prejudiced by the seizure of account books by the assessing authority or not. Each case has to be decided on its own merits. 18. Similarly, in the case of Agrawal Engineering Stores and Ors. v. The State of Uttar Pradesh and Ors. (1972) 29 S.T.C. 446, it was held that there is no constitutional impediment in the way of using the evidence obtained through illegal search and the common law permits the user of such evidence with certain exceptions. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the tape recorded conversation was obtained by illegal means. The illegality was said to be contravention of Section 25 of the Indian Telegraph Act. There is no violation of Section 25 of the Telegraph Act in the facts and circumstances of the present case. There is warrant for proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owen s[1870] 34 J.P. 759. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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