9911796707
TMI Blog1995 (5) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared. The said books were left in the premises searched and it was sealed. The search was resumed on September 20, 1989, and the panchanama was prepared, which was signed by the authorised officers as well as the witnesses, Shri Surendra Kumar and Arjun Singh. The respondents have stated in the reply that the panchanama of September 14, 1989, was prepared by the authorised officers and the signatures of Surendra Kumar Sharma and Ramesh Chand Sharma as witnesses were obtained. The claim of the petitioner is that the books of account which were seized on September 20, 1989, for which panchanama was prepared on September 20, 1989, and a copy of which was delivered to the petitioner, the said books of account have not been made available for inspection, so that the petitioner could have explained in respect of the various entries for which notices have been issued and for which the direction of inspection were given by this court. The file of the Income-tax Department was called for in which there is a panchnama of September 14, 1989, with the list of inventory of account books seized numbering 11 (eleven) for the period from November 18, 1982, to November 12, 1985. The panchnam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement of Surendra Sharma was recorded on July 18, 1991, and he has given the reply to question No. 6 that the 23 books of account were found on September 14, 1989, and were sealed in a room. The said room was opened in their presence on September 20, 1989, and the officers of the Income-tax Department have taken the seized records with them. The statement of Arjun Singh was recorded on August 6, 1991, and he has stated that he has gone to the house of Banke Bihari Lal Agarwal after the proceedings were started and he is not having the full knowledge of the search and seizure. It was further stated that because he has reached late on September 20, 1989, he cannot say as to whether the 23 books seized were carried by the Department or not. It was further stated that he remembered that the Income-tax Department has carried one bundle containing the books. He cannot say whether it contained the 23 books seized as per annexure "A-1" or other books or how many books were there. The witness of September 14, 1989, Ramesh Chand Sharma, has stated that the jewellery, cash, books of account, note books, etc., were sealed in a room and he has put his signature on the seal dated September 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure. The power of search and seizure conferred by the Act has been tested with reference to the fundamental rights guaranteed under Chapter III of the Constitution with particular reference to articles 14, 19 and 21 of the Constitution. The provisions have been held valid because sufficient safeguards have been provided by the Act and Rules made thereunder. The act of search and seizure is no doubt an invasion on the rights of the subjects and cannot indiscriminately be used. Proper care has to be taken at all stages so as to justify even the act of seizure. The contention of the respondent that the books of account from serial Nos. 1 to 23 have no relevance as per annexure "A-1" has no substance. If the books of account were not relevant then why were they seized ? The seizure itself shows that the books of account were relevant and the authorised officer at the time of seizure was of the view that the books searched and seized will be useful and relevant for the purpose of proceedings under the Act. Rule 112 of the Income-tax Rules provides the procedure for search and seizure. It has been provided under sub-rule (6) of the said rule that before making a search the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is responsible for the removal of the books, then they could have filed a first information report/complaint during the period from September 20, 1989 to December 8, 1989, or immediately thereafter, but no such steps have been taken. No first information report/complaint has been filed. (ii) The officer in order to harm the assessee may remove the books of account so that he may not be in a position to explain the disputed entries. This is not the position here nor has any such allegation been made against any of the officers having prejudice against the petitioner. (iii) The officer or his staff in connivance with the assessee may remove the books of account. It may be either to help the assessee or to cause loss to the revenue or to get monetary consideration for such an act. (iv) There may be gross negligence on the part of the officer seizing the books of account in not taking it with him. It could have been understandable where the seized record is very small in quantity but even for that purpose the authorised officer has to be careful otherwise the act could fall within the category of gross negligence. The books of account were seized and it prima facie shows that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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