9911796707
TMI Blog1986 (9) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... vide annexure " C " of the Panchanama prepared at the time of the search. A photostat copy of the same has been annexed to this application (CWJC No. 980/86 R) as annexure 1. Similarly, the business premises of petitioner No. 2, M/s Premier Agency, were also searched and many documents were seized, vide annexure C/A of the Panchanama marked annexure 2. The business premises of the third petitioner, M/s Bihar Pesticides and Fertilizers; were also searched. The books of account of this firm were also seized under panchanama, vide annexure 3. The officers searched the three lockers of the Central Bank of India at Ramgarh. Locker No. 31 is in the name of Smt. Hansa Banka (petitioner No. 3). Locker No. 37 is in the name of petitioner No. 1, Gobind Lal Agrawal, and locker No. 33 is in the name of Durga Debi, petitioner No. 2. They, in the course of their search, seized ornaments and jewellery including silver utensils weighing 600 grams and also cash of Rs. 8,641. The Panchanama was prepared, a photostat copy of which is enclosed with this application as annexure " B " in CWJC No. 984/86(R). Some gold ornaments were seized from the room of Smt. Durga Debi, petitioner No. 2. Nine fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the panchanama prepared at the time of search, copy of which has been enclosed as annexure I to this application. The respondent officials further issued directions to the various bankers not to allow the petitioners to operate their bank accounts and they could not withdraw any money from the bank. All the petitioners in their respective applications making a common cause have invoked the writ jurisdiction of this court under articles 226 and 227 of the Constitution of India seeking a declaration that the search and seizure conducted by the respondents is wholly illegal and without jurisdiction, as the same has been done in contravention of the provisions laid down under section 132 of the Act and to issue mandamus directing the respondents to release the ornaments, jewellery, silver utensils, fixed deposit receipts and the books of account to the respective parties. The short contention is that the powers of search and seizure by the Income-tax Department have been wrongly exercised and the same has been done without reasonable cause and proper material on record and the whole action of the seizure of the jewellery and ornaments, fixed deposits, papers and the books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell the business premises of the petitioners and that the manner in which it has been done has seriously damaged the reputation of the petitioners both in society and as well as the business community. The ornaments and jewellery seized by the officials were in the list of declared and disclosed properties and the disclosure was made voluntarily under the provisions of Voluntary Disclosure of Income and Wealth Ordinance, 1975. It had been declared to the Department that Durga Debi, wife of Badri Prasad Agrawal, had acquired gold, jewellery and ornaments worth several thousands up to the accounting year on the date of declaration and had paid the taxes in addition to the security for the same. The jewellery were kept in the bank under locker system and the learned advocate contends that it cannot be described to be undisclosed or concealed properties. However, at this stage, it is stated that the officials of the Income-tax Department could have very well inspected and got the jewellery weighed in case of any doubt for the purpose of assessment and there was no reasonable ground to get the jewellery and ornaments, utensils and also cash found in the house seized. It has also been st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised on behalf of the petitioner. It has, however, been discriminately argued that the search and seizure was authorised by the Commissioner of Income-tax on the basis of information regarding undisclosed cash, jewellery, business and books of account and documents, which were in the possession of the assessees-petitioners. It has also been averred in paragraph 7 that as a result of secret enquiries, the materials which had come to light gave the Commissioner the reasons to believe that such books of account or other documents, as required by the Department would not be produced by issuing summons under section 131 of the Act or notice under section 132 of the Act and, therefore, the Commissioner of Income-tax authorised the officials for conducting the search and seizure of the residential and as well as the business premises of Badri Prasad Agrawal and others, who resided there in the houses. It has also been stated that it was not possible at the time of search and seizure to verify the cash and jewellery kept in the premises and that the petitioners having not co-operated and not having filed any reply asked for, had to seize the articles. Sri Rajgarhia contends that the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same time, care must be taken that the whip is not used indiscriminately which might cause injury and insult to honest persons. If there is a wanton and indiscriminate raid and seizure on honest taxpayers, it would certainly amount to an attack on fundamental rights of the person living in the society with dignity and grace and such an act touches the honour and prestige. In the counter-affidavit filed on behalf of the respondents, there is no whisper that the petitioners come in any of the three categories i.e. clauses (a), (b) and (c) of sub-section (1) of section 132 of the Act. It has been vaguely submitted that the Commissioner of Income-tax on the basis of some information regarding undisclosed cash, jewellery and books of account, which were in the possession of the petitioners, and that the information came to light as a result of some secret enquiry and the Commissioner, therefore, having reason to believe that the assessee would not produce the relevant papers by issuance of summons and, therefore, authorised the officials to conduct raid, search and seizure, both in residential and business premises. This pleading is not enough. We do not even for a moment pause to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree with the submission made by Sri Rajgarhia that the Department could very well proceed under section 131 or section 142 of the Act by issuing summons and notices and could very well proceed under section 143 of the Act for assessment. In the circumstances referred to above, we find that the action taken against the petitioners was not in consonance with the provisions of the Act or it was in contravention of the provisions laid down under section 132 of the Act and, therefore, must be deemed to be an act without jurisdiction. This vitiates the act of search and seizure and the same is declared as wholly illegal. While passing the final order, we may again revert to another aspect of the argument that in the instant case the articles have been detained for more than 180 days. Sub-section (8) of section 132 says that the books of account or other document shall not be retained by the authorised officers for a period exceeding 180 days from the date of the seizure, unless the reasons for retaining the same beyond the period are recorded in writing and approved by the Commissioner. It has been contended by Sri Rajgarhia that, in the instant case, the Commissioner had recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
