Jeevan Reddy, J.
1. This a petition for the issuance of a writ of centiorari or other appropriate writ, order or direction quashing the approval accorded by the 2nd respondent, viz., the Commissioner of Income-tax, Karnataka (Central), Bangalore, under sub-s. (8) of s. 132 of the I.T. Act, 1961. The approval was accorded in the proceedings dated February 25, 1980.
2. Sub-section (1) of s. 132 of the Act empowers the officers specified therein to authorise any ITO or Assistant Director of Inspection to search the premises, etc., and seize the books of account or other relevant material therefrom, if he believes that a person summoned to produce the books has failed to do so. For the purpose of this case, it is unnecessary to examine or set out the ingredients or features of sub-s. (1) in any detail. The provisions relevant herein are sub-ss. (8) and (10), which read as follows :
'(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 (XI 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 approval given by the Commissioner under sub-section (8), he may make an application to the Board stating therein the reasons for such objection and requesting for the return of the books of account or other documents.'
3. Petitioner's premises were searched on September 8, 1978 and certain books of account seized. Though one hundred and eighty days elapsed from the date of seizure, neither the Commissioner accorded the approval for continued retention of the books seized, nor were the seized books returned to the petitioner. The petitioner, thereupon, field Writ Petition No. 699 of 1980 in this court praying for the return of the said books. While the said writ petition was pending, the Commissioner passed the impugned order approving the retention of books beyond one hundred and eighty days. The order was passed long after the expiry of 180 days, i.e., on February 25, 1980. The order reads as follows :
'GOVERNMENT OF INDIA OFFICE OF THE COMMISSIONER OF INCOME-TAX, KARNATAKA (CENTRAL), BANGALORE.
C. No. 6(14) CIT(C)/79-80 D/25-2-1980.
PROCEEDINGS OF THE COMMISSIONER OF INCOME-TAX, KARNATAKA (CENTRAL), BANGALORE.
Sri S. T. Tirumalachari, Commissioner of Income-tax, Karnataka (Central), Bangalore.
Subject : Retention of books and documents seized under section 132 of the I.T. Act, 1961-M/s. Hyderabad Vanaspati Ltd., Hyderabad.
ORDER UNDER SECTION 132(8) OF THE INCOME-TAX ACT, 1961.
Sanction is hereby accorded to the Income-tax Officer, Central Circle-I, Hyderabad, for the retention of the books and documents seized on 8-9-1978 from the following residential/business premises by the authorised officers up to 31-3-1981, or for a period not exceeding 30 days after all the proceedings under the Indian Income-tax Act, 1922, or the Income-tax Act, 1961, in respect of the years for which the books and documents are relevant are completed, whichever is earlier : As per list enclosed.
Sd. Commissioner of income-tax, Karnataka (Central), Bangalore.
The Income-tax Officer, Central Circle-I, Hyderabad.
The I.A.C. Central Range, Hyderabad.
The assessee... '.
4. This is the first approval of the Commissioner after the books were seized on September 8, 1978.
5. Sri. V. Srinivas, learned counsel for the petitioner, put forward two contentions in support of the writ petition, viz., (i) inasmuch as the approval of the Commissioner was not accorded before the expiry of 180 days from the date of seizure, the very retention of the books became illegal. On the expiry of 180 days, and in the absence of the approval by the Commissioner, the prtitioner became entiled to the return of the books. It is not competent for the commissioner to accord approval ex post facto. Since the commissioner's order is incompetent and void, it is liable to be ignored. It is not necessary for this court to go into the correctness or otherwise of the order of approval. (ii) According to sub-s. (8), both the reasons recorded by the authorised officer, as well as the approval of the Commissioner, have to be communicated to the person concerned. Unless the reasons recorded by the authorised officer are communicated, it is not possible for the petitioner to exercise the right conferred upon him by sub-s. (10) properly and effectively. He can submit his objections only if he knows the reasons for such approval. The communication of reasons is, therefore, necessary and obligatory - the breach whereof renders the retention beyond 180 days illegal and unauthorised. In this case, the reasons recorded by the authorised officer, if any, were not communicated.
6. We are inclined to agree with the learned counsel on both the counts.
7. So far as the second contention urged by the counsel for the petitioner is concerned, it is fully supported by the decision of the Supreme Court in CIT v. Oriental Rubber Works where it is held that the communication of reasons recorded under sub-s. (8) is obligatory. In view of the said decision, no more need be said by us on the second contention.
8. Now, coming to the first contention, it is necessary to notice the language of sub-s. (8). It says that the books of account or other documents seized under sub-s. (1) or (1A) 'shall not be retained by the authorised office 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'. The language is emphatic and mandatory. Retention beyond 180 days is not permissible unless the two conditions specified in the sub-section, viz., recording of reasons by the authorised officer and according of approval by the Commissioner, are satisfied. The reasons for the concern shown by parliament are not far to seek. The power of search and seizure conferred by sub-s. (1) is extraordinary. In the interests of proper administration of the Act and public revenue, such a special power is vested in the specified authorities of the State. The right of privacy and the principle of inviolability of a citizen's hearth and home are subordinated to over-riding public interest. At the same, time, Parliament has taken care to hedge the said power by providing more than one check thereon. The formation of reasonable belief contemplated in sub-s. (1) is one such check upon this power which is to be exercised on the subjective satisfaction of the specified officer : See Barium Chemicals Ltd. v. Company Law Board : 1SCR898 in this regard. The other check or the limitation upon the said power is the twin requirements contained in sub-s. (8). If the seized books are to be retained beyond 180 days, the authorised officer must record his reasons therefor and must obtain the approval of the Commissioner. Yet another safeguard to he citizen is the one contained in sub-s. (10), which confers a right of revision-as it can be called-upon the person aggrieved. He can submit his objections (to the reasons and approval) to the Board, which shall consider the same and pass appropriate orders. In this view of the matter, it has to be held that the twin requirements in sub-s. (8) are mandatory and also that they should be compiled with before the expiry of 180 days. To permit the Commissioner to accord the approval with retrospective effect would render the safeguards in sub-ss. (8) and (10) nugatory and ineffective, thereby converting a conditional and limited power into an arbitrary and absolute one. It should also be seen that the Act does not empower the Commissioner to accord the approval with retrospective effect. The power to give retrospective effect to its acts is the prerogative of the Legislature alone. Of course, Legislature can empower its delegate to exercise the said power; but, such delegation must be clearly indicated, and we find no such indication in sub-s. (8) The learned counsel for the petitioner is right in saying that on expiry of 180 days, and in the absence of the approval of the Commissioner the person (from whom the books are seized) acquires a right to their return. Any retention thereafter is unauthorised and illegal which cannot be cured or validated by the Commissioner by according retrospective approval. Such ex post facto approval, if permitted, would also have the effect of rendering the remedy conferred by sub-s. (10) nugatory and illusory. By simply not recording the reasons and by not according the approval within time, the remedy provided by sub-s. (10) can be defeated. Obviously, such a course cannot be countenanced. Yet another reason which inclines, us to hold that the requirement of recording reasons and according approval before the expiry of one hundred and eighty days is obligatory, is that holding otherwise would enable the authorities to defeat the object underlying the enactment and the rights of the citizens. All that they need do is to comply with the said requirements only when questioned in court. in other words, only when threatened with an order, they would comply with the said requirements, and plead that, since they have complied with the legal requirements at any rate before any order is passed by the court, the books cannot be directed to be returned.
9. It is brought to our notice that the same conclusion has been arrived at by the Delhi High Court in Hanuman Pershad Ganeriwala v. Director of Inspection : 93ITR419(Delhi) and Metal Fittings Pvt. Ltd. v. Union of India : 141ITR758(Delhi) as also by the Madhya Pradesh High Court in Samptlal and Sons v. CIT : 150ITR191(MP) .
10. A contrary view appears to have been taken by a Special Bench of the Allahabad High Court in Seth Brothers v. CIT : 80ITR693(All) . The learned judges held that the approval contemplated by sub-s. (8) of s. 132 can also be accorded ex post facto and that it would not be bad on that account. The reasoning is to be found in the following observations (p. 698) :
'The sub-section does not require that the approval should be taken prior to the expiry of that period. The language is sufficiently wide to enable the authorised officer to seek and obtain the approval of the Commissioner even after the expiry of 180 days. The approval of the commissioner even after the expiry of that period would be sufficient to sanction and validate the further retention of the books beyond that period.'
11. With great respect to the learned judges, we are unable to agree with their opinion for the reasons given supra.
12. For the above reasons, we hold that the order of the approval passed on February 25,1980, long after the expiry of 180 days from the date of seizure, is incompetent in law and is ineffective to warrant the retention of the books beyond one hundred and eighty days. As soon as the period of one hundred and eighty days from the date of seizure expired, the petitioner became entitled to the return of the books and documents seized from him, and that right is not and cannot be defeated by the impugned order.
13. The writ petition is, accordingly, allowed. The respondents are directed to return the books and documents seized from the petitioner's premises on September 8, 1978 to him, forthwith. The petitioner is entitled to costs. Advocate's fee Rs. 150.