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TMI Blog2007 (2) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the limited extent whether such search and seizure had taken place and what has been found during the search and seizure. The validity of search and seizure, in our considered opinion, is neither jurisdictional fact nor adjudicatory fact and, therefore, the same cannot be dwelled upon or delved into in an appeal. The submission of Mr. Nema that the Tribunal having been constituted under article 323 of the Constitution can delve into, we are disposed to think, is an unacceptable proposition in law especially in the teeth of the provision contained under section 253 of the Act. Consequently, we conclude and hold that the appeal is sans merit and accordingly stands dismissed without any order as to costs. - Dipak Misra and S. C. Sinho JJ. For the Appellant : Sumit Nema with Mukesh Agrawal For the Respondent : Rohit Arya with Sanjay Lal JUDGMENT 1. Dipak Misra J. The present appeal preferred under section 260A of the Income-tax Act, 1961 (for brevity the Act ), was admitted on the following substantial question of law : Whether the validity of a requisition under section 132A in pursuance of an authorisation issued under that section can be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior counsel with Mr. Sanjay Lal for the Revenue. 5. In support of the appeal it is submitted by Mr. Sumit Nema, learned counsel for the appellant that if the anatomy of section 132A of the Act is scanned in proper perspective there can be no shadow of doubt that the said provision does not authorise the authority under the Income-tax Act to take delivery of the properties from the police before the seizure is reported to the court and the court passes an order as regards the custody and since the same has not been done in the instant case the entire proceeding under section 132A is sensitively susceptible which makes the whole assessment proceeding totally illegal and untenable. To bolster the aforesaid submission he has commended us to the decisions rendered in Orient Paper Mills Ltd. v. Union of India, AIR 1969 SC 48 ; Sadruddin Javeri v. Government of A. P. [2000] 243 ITR 579 (AP) ; Rajesh Kumar v. Deputy CIT [2006] 287 ITR 91 (SC) ; [2007] 8 ITJ 1 (SC) and Amandeep Singh v. Director of Income-tax (Investigation) [2001] 252 ITR 139 (P H). It is further proponed by Mr. Nema that the order passed by the Commissioner under section 132A is a quasi-judicial act and, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use to be produced, such books of account or other documents on the return of such books of account or other documents by any officer or authority by whom or which such books of account or other documents have been taken into custody under any other law for the time being in force, or (c) any assets represent either wholly or partly income or property which has not been, or would not have been, disclosed for the purposes of the Indian Income-tax Act, 1922 (11 of 1922), or this Act by any person from whose possession or control such assets have been taken into custody by any officer or authority under any other law for the time being in force, then, the Director General or Director or the Chief Commissioner or Commissioner may authorise any Joint Director, Joint Commissioner, Assistant Director, or Deputy Director, or Assistant Commissioner or Deputy Commissioner or Income-tax Officer [hereafter in this section and in sub-section (2) of section 278D referred to as the requisitioning officer] to require the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, to deliver such books of account, other documents or assets to the requisitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g under this Chapter : Provided further that a person who has furnished a return under this clause shall not be entitled to file a revised return ; (b) the Assessing Officer shall proceed to determine the undisclosed income of the block period in the manner laid down in section 158BB and the provisions of section 142, sub-sections (2) and (3) of section 143, section 144 and section 145 shall, so far as may be, apply ; (c) the Assessing Officer, on determination of the undisclosed income of the block period in accordance with this Chapter, shall pass an order of assessment and determine the tax payable by him on the basis of such assessment ; (d) the assets seized under section 132 or requisitioned under section 132A shall be dealt with in accordance with the provisions of section 132B. 9. Section 246A deals with appealable orders before the Commissioner (Appeals). Section 253 deals with appeals to the Appellate Tribunal. Sub- sections (1)(a) and (b) which are relevant for our purpose are reproduced below : 246A. (1) Any assessee aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer is allowed to examine files containing reasons for issue of authorisation under section 132 of the Income-tax Act, the name of the informer will not be secret and the informer will be exposed to risk of his life. Therefore, such informations supplied by the informers are totally kept secret and cannot be divulged to any person including the Assessing Officer. The Assessing Officer, therefore, cannot be allowed access to the secret file of the Directorate of Income-tax (Investigation) which pertains to search and seizure matters. 17.1 The Income-tax Appellate Tribunal (hereinafter referred to as ' the Tribunal' ), is a creature of the Income-tax Act and not the creature of the Constitution of India. The Tribunal is to discharge its functions in accordance with the provisions of the Income-tax Act. The Tribunal has jurisdiction only over such matters which have been mentioned in section 253 of the Income-tax Act. The right of appeal is a statutory right and if the appeal is not provided against a particular order of an authority under a particular section then the Tribunal is not competent to hear the appeal or arguments against the order of such authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the above provisions, it is apparent that the first step is making of a requisition by the Income-tax authorities to an officer or authority who is in possession or control of the assets representing alleged undisclosed income for delivery of such assets. The second step is the compliance by such officer or authority who then delivers the assets to the requisitioning authority in accordance with section 132A(2) of the Act. In the present case, as already observed, the possession on March 23, 1998, was with the Station House Officer, Police Station, City Phagwara, and, as such, respondent No. 1 was well within his competence to issue a requisition under section 132A(1) of the Act. However, respondent No. 3 who had seized the cash and was in its possession in accordance with the provisions of section 102(1) of the Criminal Procedure Code was duty-bound to transport the same to the court of competent criminal jurisdiction or to give its custody to any person on his executing of a bond and undertaking to produce the property as and when required and to give effect to further order as to its disposal. It was his bounden duty to obtain an order under section 457 of the Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s worth noting that a writ petition was filed by the assessee before the Delhi High Court questioning the action of the Revenue and when the High Court refused to interfere, the matter travelled to the apex court and at that juncture their Lordships expressed the opinion as has already been indicated hereinabove. 17. In Amandeep Singh [2001] 252 ITR 139, a Division Bench of the Punjab and Haryana High Court was dealing with the factual matrix in a writ petition preferred under article 226 of the Constitution of India. Similarly, the Division Bench of the Andhra Pradesh High Court in the case of Sadruddin Javeri [2000] 243 ITR 579, was dealing with the fact situation that emerged under article 226 of the Constitution of India. 18. At this stage, we think it appropriate to refer to a decision rendered in the case of Princess Usha Trust [1989] 176 ITR 227 wherein the Division Bench of this court distinguishing the decision rendered in the case of Central Provinces Manganese Ore Co. Ltd. v. CIT [1986] 160 ITR 961 (SC), expressed the opinion that levy of interest was not a part of the process of assessment and, therefore, the Tribunal was not justified in holding in the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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