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TMI Blog1990 (4) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ed family, consisting of himself and his three sons which carries on business in the name and style of "Jorawar Singh Baid and Sons". On March 16, 1989, some Officers of the Income-tax Department conducted a search at the residence and also at the chamber of the appellant situated at No. 33/1, Netaji Subhas Road, Calcutta. On March 21, 1989, the income-tax authorities searched another chamber of the appellant situated at No. 44B, Kali Krishna Tagore Street, Calcutta. In the course of the said searches carried out on March 16, 1989, and March 21, 1989, various papers, documents, briefs, share scrips, etc., were seized. On April 28, 1989, the appellant, being aggrieved, challenged the legality and validity of the said search and seizure proceedings and also connected proceedings relating to the said search and seizure in the constitutional writ jurisdiction of this court. An ad interim order of injunction was passed in terms of prayer (g) of the petition. The said prayer (g) is set out herein below : "Interim order of injunction restraining the respondents and each of them and their servants and agents from giving any effect to and/or taking any step or further steps or any pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee as expeditiously as possible. Since the seizure took place on March 16, 1989, and 180 days expired on September 16, 1989, and the authorities had not communicated the recorded reasons and the order of approval, if any, they had no power, authority or jurisdiction to retain the said books and documents beyond the said period. The learned single judge, by his order dated February 15, 1990 (see Jorwar Singh Baid v. Asst. CIT [1990] 183 ITR 664), referring to the orders passed in the first writ petition as also to the order passed in appeal therefrom, held that there was no fresh cause of action to entertain the second writ petition. He further found that the reasons were duly recorded for the retention of the books, documents, etc., and that its communication had not been effected "due to certain confusion and in view of the fact that the court is in seisin of the matter" and that "there is no failure on the part of the income-tax authorities to comply with the statutory provision". In the light of these findings, the writ petition was disposed of with direction to the Revenue authorities to communicate the reasons and the order of approval within a week from date. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the submission made on behalf of the appellant against the aforesaid factual background, it is necessary to refer to the relevant statutory provisions, namely, section 132, sub-sections (8), (10) and (12). As in force at the material time, they read as follows : "132(8). The books of account or other documents seized under sub-section (1) or sub-section (1A) shall not be retained by the authorised officer for a period exceeding one hundred and eighty days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained : Provided that the Commissioner shall not authorise the retention of the books of account and other documents for a period exceeding thirty days after all the proceedings under the Indian Income-tax Act, 1922 ( 11 of 1922), or this Act in respect of the years for which the books of account or other documents are relevant are completed. (10) If a person legally entitled to the books of account or other documents seized under sub-section (1) or sub-section (1A) objects for any reason to the approval given by the Commissioner under sub-section (8), he may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval as also the recorded reasons to the person concerned. In the absence of such communication the Commissioner's decision according his approval will not become effective. Moreover, sub-section (10) confers upon the person legally entitled to the return of the seized books and documents a right to object to the approval given by the Commissioner under sub-section (8) by making an application to the Central Board stating therein the reasons for such objection and under sub-section (12) it is provided that the Central Board may, after giving the applicant an opportunity of being heard, pass such orders as it thinks fit. It is obvious that without the knowledge of the factum of the Commissioner's approval as also of the recorded reasons on the basis of which such approval has been obtained it will not be possible for the person to whom the seized books or documents belong to make any effective objection to the approval before the Board and get back his books or documents. In our view, the scheme of sub-sections (8), (10) and (12) of section 132 makes it amply clear that there is a statutory obligation on the Revenue to communicate to the person concerned not merely the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been put forth on behalf of the Revenue and which appeared to have weighed with the learned single judge cannot be regarded as valid. The pendency of the first writ petition in the court could not have deterred the communication of reasons and approval to the appellant since there was no interim relief operating against such action being taken. In any case, clarification and/or leave of the court could have been obtained to comply with the statutory requirement of communication. Under the circumstances, there is little scope for holding that there was "confusion" or that seisin of the judicial proceeding absolved the concerned authority from complying with the requirement of communication. Indubitably, therefore, there was non-compliance with section 132 and the appellant was entitled to the grant of relief of the return of seized books and documents, etc. The communication of the recorded reasons and approval in compliance with the learned single judge's order cannot validate or legalise the unauthorised and unlawful extended retention. The foregoing reasons weighed with us in passing the order which is set out at the commencement of the judgment. P. D. DESAI C. J. - I agr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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