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TMI Blog2021 (12) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... Principal Commissioner of Income-Tax (Central). The 2nd respondent is the complainant. On 15.03.2016, search and seizure proceedings were initiated by the petitioners in terms of Section 132 of the Income Tax Act, 1961 ('the Act' for short) on the residential premises of the complainant and several incriminating documents including a diary that was found during the search were seized. The diary was found in the bedroom of the complainant. According to the petitioners, the diary had recordings of various transactions with abbreviations and amounts against each of the abbreviations. 3. The complainant was, at that point in time, holidaying at Goa. A search warrant that was issued against the complainant was executed even at the hotel room, where the complainant was staying. The complainant returned to his residence and during the course of search, statement of the complainant was recorded under Section 132(4) of the Act, confronting the complainant with the contents of the seized incriminating materials including the diary. Several statements were later recorded by the petitioners in furtherance of the proceedings under Section 132 of the Act. 4. The complainant on 28.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Advocate for the 2nd respondent. 8. The learned counsel appearing for the petitioners would vehemently argue and contend that the very registration of FIR against the petitioners is not maintainable as there is protection to the act of the petitioners under Section 293 of the Act and under Section 138 of the Act any document or incriminating material seized in a search and seizure proceedings under Section 132 of the Act, cannot be handed over or divulged as Section 138 of the Act begins with a non-obstante clause. Section 91 of the Cr.P.C. cannot override the provisions of either under Sections 132, 138 or under Section 293 of the Act. 9. On the other hand, the learned senior counsel representing the 2nd respondent/complainant would vehemently refute the submissions and contends that the writ petition itself is not maintainable as the petitioners are not even named in the FIR and what is called in question is only a notice issued under Section 91 of the Cr.P.C. to which the petitioners would be at liberty to file reply and justify their stand that they would not be in a position to release the diary. Rushing to the Court and calling in question, nothing against them, wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be, disclosed for the purposes of the Indian Income Tax Act, 1922 (11 of 1922), or this Act (hereinafter in this section referred to as the undisclosed income or property), then,-- (A) the Principal DirectorGeneralor Director Generalor Director or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner], as the case may be, may authorise any Additional Director or Additional Commissioner or Joint Director, Joint Commissioner, Assistant Director or Deputy Director, Assistant Commissioner or Deputy Commissioner or Income Tax Officer, or (B) such Additional Director or Additional Commissioner or Joint Director or Joint Commissioner, as the case may be, may authorise any Assistant Director or Deputy Director, Assistant Commissioner or Deputy Commissioner or Income Tax Officer (the officer so authorised in all cases being hereinafter referred to as the authorised officer) to-- (i) enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept; (ii) break open the lock of any door, box, lock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... physical possession of any valuable article or thing and remove it to a safe place due to its volume, weight or other physical characteristics or due to its being of a dangerous nature, the authorised officer may serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it, except with the previous permission of such authorised officer and such action of the authorised officer shall be deemed to be seizure of such valuable article or thing under clause (iii): Provided also that nothing contained in the second proviso shall apply in case of any valuable article or thing, being stock-in-trade of the business. Provided also that no authorisation shall be issued by the Additional Director or Additional Commissioner or Joint Director or Joint Commissioner on or after the 1st day of October, 2009 unless he has been empowered by the Board to do so. Explanation.-- For the removal of doubts, it is hereby declared that the reason to believe, as recorded by the income-tax authority under this sub- section, shall not be disclosed to any person or any authority or the Appellate Tribunal. (1-A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , bullion, jewellery or other valuable article or thing under clause (iii) of sub-section (1). (4) The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income Tax Act, 1922 (11 of 1922), or under this Act. Explanation.--For the removal of doubts, it is hereby declared that the examination of any person under this sub-section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Indian Income Tax Act, 1922 (11 of 1922), or under this Act. (4-A) Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search, it may be presumed-- (i) that such books of account, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for and his decision in this behalf shall be final and shall not be called in question in any court of law. (2) Notwithstanding anything contained in sub-section (1) or any other law for the time being in force, the Central Government may, having regard to the practices and usages customary or any other relevant factors, by order notified in the Official Gazette, direct that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assessees or except to such authorities as may be specified in the order." (emphasis supplied) Section 138(2) of the Act as afore-extracted, is relevant for the purpose of the lis begins with a non-obstante clause reading "notwithstanding anything contained in sub-section (1) or any other law for the time being in force", no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assessees or except to such authorities as may be specified in the order. Therefore, on a conjoint reading of Sections 132 and 138(2) of the Act, would lead to an unmistakable conclusion that once such seizure proceedings are u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct on my part. I was shocked and traumatized by the search and I could not contact my wife, Smt.Hamsa Raj as my mobile phones were taken in to custody by the IT Officials. Further I was given to understand that a posse of income tax officials had entered into my house and did an extensive search of my house. Even after taking me into illegal custody at Goa; I was brought to Bangalore by IT Official from Goa, they did not provide me details of searches and of recovery, rather took me to the office of the Karnataka Olympic Association of which I am the President and took the search of the office. It is a matter of great concern that the KOA is the independent body registered under the Societies Act of Karnataka but search was done as a part of the wider conspiracy to defame and belittle me in the eyes of sports administration at the behest of powerful lobby, I am afraid. After hearing from my wife about certain relevant information and after recovering from shock and trauma, I filed a complaint to the Indira Nagar Police Station about fabrication of said evidences against me with political motive. The procedure of the search has been defined in the law of the land and in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act is out of purview of even Right to Information Act and can have limited access to the authorities concerned and others as per the law. Such being the position of law; the availability of information which is subject matter of income tax act proceedings with unauthorised persons clearly shows that either such persons have committed theft of such information or documents from the Income Tax Department or the authorities in Income Tax Department have committed the offence of criminal breach of trust by sharing the information which ought not to have been shared to unauthorised person and media for publications with wrongful political gain. Contents of such planted diary have been vigorously used by the political opponents with ulterior motive which clearly demonstrates that it was a conspiracy to tarnish my image and lug me in false allegations. I request your good office to launch investigation against all the persons and public servants involved in criminal breach of trust, theft of information/documents and creation of false documents along with other offences committed under the following Sections as stated supra - 218, 193, 199, 182, 341, 406, 409, 457, 380, 466, 471, 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther investigation in Indiranagar PS, Dr.No.52 of 2017 under Section 166A, 182, 193, 109, 199, 208, 406, 466, 409, 457, 380, 472, 471, 120(B) r/w 34 IPC. You are hereby called upon to produce the alleged diary, in original, which was seized during the raid conducted on the residence of Sri K.Govindaraj, MLC on 15-03-2016 and indexed by you vide reference No.(2) as "A/KG/03" before the undersigned at Indiranagar Police on or before 20th April, 2017 at 11.00 a.m. Further you are hereby also called upon to furnish the details of the officers, persons and officials who were present during the raid conducted on the residence of Sri K.Govindaraj, MLC on 15-03-2016." A perusal at the notice would clearly indicate that what the Police wanted was also the diary, which was allegedly seized during the raid. This notice under Section 91 of Cr.P.C., was replied by one of the petitioners on 20-04-2017, clearly indicating that no proceedings can be instituted against the petitioners and not even a notice seeking documents can be issued as confidentiality of such documents is provided under Section 138 of the Act. The Police did not stop at this, but issued another communication on 20-06-2017, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the complaint is, the diary and what the Police want to secure from the petitioners is the diary and no other document is required by the Police for investigation of the allegations of offences, which run into 15 in number, but only the diary. It cannot but be held that the 3rd respondent was acting at the behest of the complainant to secure the diary by invoking Section 91 of the Cr.P.C., thereby summoning the diary. Since the FIR could not have been registered against the petitioners in view of the specific bar under Section 293 of the Act, the aftermath of such registration would be rendered without authority of law. 18. The submission of the learned senior counsel appearing for the second respondent / complainant is that, the writ petition is not maintainable as nobody is named in the FIR and challenging the said FIR by the petitioners in particular, would not be maintainable. If the act of registration of the FIR had stopped at that point, the submission of the learned senior counsel would become acceptable. The ulterior motive in registration of FIR is seen in the subsequent proceedings. Police Notice is issued under Section 91 of the Cr.P.C. to the 1st petitioner wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it is not confined merely to set aside or modify any order. Form of the suit is not relevant. It is the substance which is to be seen. When the statute prescribed certain procedure and proceedings thereunder are held and order passed, it is difficult to accept a contention that that proceeding and order can be modified or set aside in a civil suit filed by a third party. Section 293 is specific and does not admit filing of a suit which has the effect of even indirectly setting aside or modifying any proceeding taken under the Act or order made thereunder. In the present case, search and seizure were effected as per the provisions of the Act, assets and documents seized and statement of Babulal recorded under sub-section (4) of Section 132 of the Act wherein he admitted that the gold was acquired from his and his brother's undisclosed income which he was even prepared to surrender to tax. It was thereafter in the course of further enquiry that he came up with a version that the gold ornaments in question belonged to his stepmother who bequeathed the same for the benefit of the children of the plaintiff and other children that would be born to the second wife of his father. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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